Dusty Polk and Lezanne (Polk) Proctor v. Leslie Polk and Polk Plumbing, LLC

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REL: 02/11/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2090591 Dusty Polk and Lezanne (Polk) P r o c t o r v. L e s l i e Polk and Polk Plumbing, LLC Appeal from Baldwin C i r c u i t (CV-07-900475) On MOORE, t o Remand Judge. Dusty judgment, $1 Return Court Polk and Lezanne entered duty Proctor on a j u r y ' s v e r d i c t , i n compensatory fiduciary (Polk) damages asserted on t h e i r against Leslie appeal from a a w a r d i n g e a c h o f them claim o f breach o f P o l k ; Dusty Polk also 2090591 appeals from t h e judgment e n t e r e d counterclaim ("the of LLC"), reverse conversion against on t h e j u r y ' s v e r d i c t on a asserted Dusty Polk. by We Polk, Liability "Operating According the appropriate Yurii, Dusty, and to the Operating following Yurii documents with Limited 10-12-1 i n the executed Baldwin t h e LLC's Agreement, and business affairs. a l l t h e members also contained "winding up" percentages 2 with the o f t h e LLC. specific provisions i n t h e LLC and of LLC. the I t was t h e members h e l d t h e i n the LLC: - 20%; and Lezanne would interest t h a t , as o r i g i n a l l y o r g a n i z e d , - 20%; Dusty detailed the day-to-day a f f a i r s t h e t r a n s f e r o f a member's ownership a managers" o f t h e LLC, charged Agreement dissolution undisputed t o t h e Alabama Lezanne, Agreement" governing Operating governing along As t h e s o l e members o f t h e L L C , L e s l i e a n d h i s as t h e " i n i t i a l the and and L e s l i e , t h e LLC, pursuant responsibility of handling The i n part affirm Company A c t ("the A c t " ) , A l a . Code 1975, § Court. children, act formed s e q . , by f i l i n g Probate LLC History I n December 2004, D u s t y , L e z a n n e , et Plumbing, i n part. Procedural Yurii Polk - 10%. Leslie - 50%; 2090591 It appears together that the family f o ra p e r i o d w i t h L e s l i e , commercial plumbing maintaining the financial manager. meeting. to that "shares Leslie the i n that business those minutes. continued successfully Dusty, and Y u r i i Lezanne, an and s e r v i n g t h e members meeting, Yurii work," or performing accountant, as t h e o f f i c e held a special indicated that residential 1 held to hold of plumbing meeting signed 20% work. indicated over he work; Minutes that Yurii's to the president, 1 t o the Operating of ownership." Agreement f o r A l l members o f t h e LLC A d o c u m e n t e n t i t l e d " A m e n d m e n t 1 " was to the Operating Polk type be S e e Amendment distribution Leslie worked a n d D u s t y h a d no i n t e r e s t i n s e r v i c e w o r k , t h e special Polk. affixed that 2005, [ i n the LLC] w i l l new signed records to "service d i d n o t engage from and At that return because L e s l i e LLC work I n September business wished members Agreement; 70% ownership and Lezanne L e z a n n e made t h e n e c e s s a r y notations that document indicated o f t h e LLC, w h i l e continued to hold Dusty 10%. on t h e b o o k s o f t h e L L C Although the s p e c i a l business meeting was h e l d i n September 2005, t h e members' s i g n a t u r e s were d a t e d J a n u a r y 18, 2006. I t was u n d i s p u t e d , however, t h a t t h e s p e c i a l b u s i n e s s m e e t i n g was h e l d a n d t h a t a l l t h e m e m b e r s o f t h e L L C a g r e e d t o the t r a n s f e r of Y u r i i ' s shares. 1 3 2090591 to r e c o r d the Leslie. The minutes of transfer trial the o f 200 shares court admitted special business i n the LLC into evidence meeting, from Yurii to a copy of a copy of the the LLC's O p e r a t i n g A g r e e m e n t , as amended, and a c o p y o f t h e certificate representing Leslie. the In A p r i l Lezanne. He additional 200 shares issued to 2007, L e s l i e became d i s s a t i s f i e d w i t h D u s t y LLC, and, s h o r t l y t h e r e a f t e r , he p r e v e n t e d t h e m f r o m a c c e s s i n g t h e LLC's books and r e c o r d s and dismissal in April Lezanne had After purported to "fire" them the LLC's o f f i c e s . After LLC. operations of business. Dusty prior business closed. 2 the LLC, began that he Lezanne Leslie operating had from continued as never that alleged no c o n t r o l o r i n p u t i n t o t h e o p e r a t i o n o f t h e and undisputed their and Dusty i t was the Dusty dismissing 2007, from and the to "Absolute formally day-to-day operate the Plumbing," dissolved L e z a n n e a c c e p t e d e m p l o y m e n t w i t h an a c c o u n t i n g a or firm. T h e O p e r a t i n g A g r e e m e n t e x p r e s s l y a u t h o r i z e d i t s members to m a i n t a i n b u s i n e s s i n t e r e s t s i n other ventures; thus, Dusty was n o t i n v i o l a t i o n o f t h e O p e r a t i n g A g r e e m e n t b y a l l o w i n g A b s o l u t e P l u m b i n g t o r e m a i n i n e x i s t e n c e w h i l e he o w n e d an i n t e r e s t i n t h e LLC. A d d i t i o n a l l y , at the t r i a l , Leslie r a i s e d no o b j e c t i o n t o t h e e x i s t e n c e o f A b s o l u t e Plumbing during the e x i s t e n c e of the LLC. I n any event, Dusty t e s t i f i e d t h a t he d i d n o t p u r s u e a n y b u s i n e s s on b e h a l f o f Absolute Plumbing u n t i l after L e s l i e purported to dismiss D u s t y from t h e LLC. 2 4 2090591 On LLC. July 2, 2 0 0 7 , In their interest LLC, among complaint, and Lezanne they sued Leslie and t h e a l l e g e d t h a t Dusty h e l d a 20% i n t h e LLC, t h a t Lezanne h e l d a 10% i n t e r e s t that Leslie Dusty Leslie held held Yurii's t h e LLC's a 50% i n t e r e s t 20% i n t e r e s t other members i n the i n t h e LLC, and i n trust that for distribution and p o t e n t i a l f u t u r e members. Dusty and Lezanne a s s e r t e d c l a i m s o f breach of fiduciary willful and wanton interference with business relations, and t h e t o r t o f outrage; they also sought conduct, conversion, a preliminary injunction. answered t h e complaint of funds Operating to to Agreement; they owned w i t h After discussed Dusty Leslie the LLC also Dusty and Lezanne seek p a r t i t i o n Leslie asserting counterclaims belonging accounting. intentional of certain and sought later breach an and t h e LLC of conversion of the injunction amended t h e i r property duty, LLC's and an complaint they a l l e g e d they co- some of which Leslie. much later, procedural the t r i a l and Lezanne's and t h e LLC's wrangling, court submitted to the jury breach-of-fiduciary-duty claim conversion 5 claim will against be only against Dusty. On 2090591 September 11, 2009, t h e t r i a l jury's verdict, stating court entered a j u d g m e n t on t h e i n pertinent part: " 9 / 1 0 / 0 9 - T r i a l c o n t i n u e s . Came t h e j u r y o f t w e l v e good and l a w f u l p e o p l e upon t h e i r o a t h s s t a t e s as f o l l o w s : (Dusty Polk's Claim f o rBreach of F i d u c i a r y D u t y ) 'We, t h e j u r y , f i n d i n f a v o r o f t h e P l a i n t i f f , Dusty Polk, and a g a i n s t L e s l i e P o l k and assess Dusty P o l k ' s damages as f o l l o w s : $1.00 C o m p e n s a t o r y ...'; (Lezanne Proctor's Claim f o r Breach of F i d u c i a r y D u t y ) 'We, t h e j u r y , f i n d i n f a v o r o f t h e P l a i n t i f f , Lezanne P r o c t o r , and a g a i n s t L e s l i e P o l k and assess Lezanne Polk's damages as follows: $1.00 Compensatory ...'; ( P o l k Plumbing LLC's C o u n t e r c l a i m f o r C o n v e r s i o n ) 'We, t h e j u r y , f i n d i n f a v o r o f t h e Counter Defendant Dusty P o l k and a g a i n s t t h e Counter P l a i n t i f f P o l k Plumbing LLC ...'; "Therefore, t h e Court e n t e r s judgment i n f a v o r o f D u s t y P o l k a n d a g a i n s t L e s l i e P o l k i n t h e sum o f $1.00. The C o u r t enters judgment i n favor of L e z a n n e P r o c t o r a n d a g a i n s t L e s l i e P o l k i n t h e sum of $1.00. The C o u r t e n t e r s judgment i n f a v o r o f D u s t y P o l k a n d a g a i n s t P o l k P l u m b i n g L L C on i t s counterclaim. "The C o u r t d e t e r m i n e s f r o m t h e e v i d e n c e that a l l o u t s t a n d i n g l i a b i l i t i e s o f [ t h e L L C ] have been p a i d . The C o u r t h e r e b y o r d e r s t h e i m m e d i a t e d i s s o l u t i o n o f [the L L C ] . The C o u r t d i r e c t s t h e p a r t i e s t o t a k e a l l necessary steps to formally d i s s o l v e [ t h e LLC] w i t h i n t h i r t y ( 3 0 ) days from t h e date o f t h i s o r d e r . The C o u r t o r d e r s C h a s e Dearman t o i m m e d i a t e l y ... d i s b u r s e from h i s t r u s t account the balance of the funds belonging t o [ t h e L L C ] d e p o s i t e d t h e r e as f o l l o w s : a sum e q u a l t o 7 0 % o f s a i d a m o u n t t o L e s l i e P o l k ; a n a m o u n t e q u a l t o 2 0 % o f s a i d sum t o D u s t y P o l k ; a n d a sum e q u a l t o 1 0 % o f s a i d a m o u n t t o Lezanne P r o c t o r . " 6 2090591 The trial partition been the not court. the on c o n c l u d e d t h a t a l l n e c e s s a r y p a r t i e s had claim, before Lezanne the c o u r t , w h i c h had s e r v e d as t h e t r i e r and The trial t o add a l l n e c e s s a r y p a r t i e s partition On September lawyer's t r u s t i n order to proceed with 17, 2009, Leslie and t h e LLC moved t h e to disburse funds from trial their a c c o u n t t o t h e members o f t h e L L C a c c o r d i n g ownership following ordered Dusty claim. c o u r t t o o r d e r Dusty and Lezanne their court of f a c t or f o r a f i n d i n g September day, interests 18, 2009, the of contempt. trial court to The ordered Dusty and Lezanne t o p o s t a supersedeas bond or t o i m m e d i a t e l y comply September with Lezanne followed September, September Lezanne R. 18, that 2009, 11, 2009, filed C i v . P., grounds, the 2009, order with order or judgment. On judgment. Dusty and a motion to reconsider the to execution the stay O c t o b e r 11, 2009, of Dusty and a p o s t j u d g m e n t m o t i o n , p u r s u a n t t o R u l e 59, A l a . s e e k i n g a new that inadequate. 11, the The damages trial t r i a l . They awarded to alleged, them by among o t h e r the jury c o u r t d e n i e d t h a t m o t i o n on O c t o b e r 2009. 7 were 19, 2090591 Dusty and N o v e m b e r 3, the Lezanne 2009. appellants filed That appeal because See So. ( A l a . C i v . App. the appeal, their Polk D u s t y and pending motion, and their motion Polk for on taken 9, (table). new trial. court's Neither 3 2010) court to court granted the Leslie that final. denial nor of dismiss judgment from of nonfinal Upon d i s m i s s a l trial appealed on the motion a trial timely appeal from c l a i m ; the the of 2090174, March (No. then a dismissed been 2010) rendering Lezanne notice L e z a n n e moved t h e t r i a l partition thereby Dusty have v. was i t had judgment. 3 d ___ their the of LLC appealed. Analysis In motion trial arguing for a court that new the trial, erred in trial court Dusty and refusing to claims to the j u r y , t h a t the t r i a l the j u r y , t h a t the the evidence motion 3 into Lezanne trial that the without The r e c o r d from appeal t h i s appeal. 8 assert their the certain issues submit and court improperly instructed trial stating no. i n denying that j u r y awarded i n s u f f i c i e n t presented, f o r a new erred damages b a s e d court denied i t s reasons, 2090174 has been on their that the incorporated 2090591 trial court verdict, relief entered and that argument i n that was not trial sought court by Lezanne f i r s t a l l o w i n g the and Lezanne September did not in held dispute that the did LLC a 70% 20% the certain We jury's equitable address each court erred i s s u e of each Interest a s s e r t that the the to dispute they had disputed that Yurii Leslie. the a the however, to from LLC's Dusty that minutes assent of to the the members his and transfer, They trial, 20% Lezanne Leslie also did that special transfer not of Leslie. denied that Yurii transferred his to L e s l i e for L e s l i e ' s i n d i v i d u a l benefit. without i n t e r e s t i n the LLC At minutes the LLC. the LLC. transferred r e s u l t of signed of Likewise, indicating their i n t e r e s t i n the testified that as trial i n t e r e s t i n the interest in i n t e r e s t i n t h e LLC Dusty not that, business meeting, Dusty, with party. jury to resolve indicated dispute legally Yurii's any 2005 s p e c i a l b u s i n e s s m e e t i n g unequivocally interest granted Members' O w n e r s h i p r e m a i n i n g member's o w n e r s h i p Dusty inconsistent turn. D u s t y and not judgment the I. in a LLC objection " j u s t to 9 that Y u r i i get Yurii transferred o f f the books his and 2090591 [to] get back to b u s i n e s s . " Dusty understanding t h a t L e s l i e was trust benefit f o r the t h e b e n e f i t o f two of the LLC at objection trust f o r two Yurii Leslie younger in the to that however, that his to the largest LLC; interest interest in interest in paid nothing capital At the that He had i n the LLC to the and in LLC and for members testified without 20% interest in transferred and that his interest he he i n the transfer; he LLC had had signed and not 20% interest held the received his returned had to an objection, Leslie simply According s o he had without because because Leslie. he return his Leslie, LLC, fact, testified that, LLC from in been t o explained LLC interest the Yurii's had, Leslie intent for his from he to investment i n the monetarily interest the 20% were not likewise holding effect. Yurii his brothers. LLC affidavit members o f Lezanne was i t was holding Yurii's a l l the time. testified interest that y o u n g e r f a m i l y m e m b e r s who that that of testified his Yurii, he had he had made no attempted to simply gifted gain his away. the c o n c l u d e d as conclusion of a matter of a l l the law evidence, that Leslie 10 the trial owned a 70% court interest 2090591 in the LLC and i n s t r u c t e d the jury to that effect. Dusty and L e z a n n e o b j e c t e d , a s s e r t i n g t h a t w h e t h e r L e s l i e owned a 5 0 % a 70% interest was, i n the LLC a disputed question jury to resolve. fact and agree w i t h Dusty inter Lezanne. v i v o s g i f t : "'(1) donative (2) e f f e c t i v e d e l i v e r y t o [the 2d We of A l a b a m a l a w r e q u i r e s t h r e e e l e m e n t s t o e s t a b l i s h an and t h e r e f o r e , f o r the was or donee]. 984, 1219 Mobile, donative ( A l a . 2006) (Ala. Inc., principles (affirming gift of clear father stock and of So. 2d Sonitrol of So. 598 (Ala. (discussing the 2d a gift of So. 2d other 1236 stock grounds, (Ala. 2003). and Ex See 732 court's finding that f a t h e r had his because f a t h e r had official to his to make corporate son). 11 a N.W.2d 667 not gift records First also Ferer 701, intent requiring parte Neb. son 273 2002) corporate o v e r r u l e d on executed stock ( q u o t i n g W e e k s v . W e e k s , 557 So. v. unmistakable had transfer to F a r m s , L . L . C . , 976 by Dzwonkowski & S o n s Co., trial (3) a c c e p t a n c e and governing intent), Ferer t h e donee, and donor], 1989)); 854 A l a b a m a B a n k , 883 Aaron ... the p a r t of [ t h e P o r t e r v. B l a c k W a r r i o r 988-89 1216, i n t e n t on not (2007) made possessed even v. a a though indicating a 2090591 In t h i s Yurii case, delivered Leslie his accepted required to Yurii's the evidence undisputedly shares those One intended Leslie to that Yurii trust for members. fact In version the of have were the met. the shares, of disputed LLC brief, as Leslie and all of the the observed LLC the witness." When or the trial court, credibility of to the hold to LLC Yurii version shares younger and was trial witnesses, and 12 to intent. that each at otherwise. "reviewed and personally credibility material disputes, of court issue of in family undisputed reveals i t i s the province those donative assert LLC this questions resolve the to highly that another two record the demeanor disputed as h o w e v e r , was to that relative presented in a jury t r i a l , the the also assert manner, evidence to Y u r i i ' s and above, documents elements evidence presented a question Leslie discussed and the suggested member's p e r c e n t a g e o f o w n e r s h i p i n t h e trial; of while Leslie the that The evidence j u r y ' s r e s o l u t i o n as their two that Leslie to Thus, intended benefit Thus, the f o r the gift LLC r e c i p i e n t of h i s shares, disputed. indicated the shares. establish a intended in established decide each fact are jury, not determine the of the to of the weight to 2090591 place on e a c h Battin, trial 4 1 3 U.S. ... i n equitable Atchison testimony. 1 4 9 , 157 ... civil (1973) See, e.g., C o l g r o v e ("[T]he p u r p o s e cases resolution of factual Props., , its witness's [is] to assure i s s u e s . " ) ; MAT of the jury a fair S y s . , I n c . v. I n c . , [Ms. 2 0 9 0 0 9 1 , J u l y 2, 2 0 1 0 ] discretion, give inferences So. 3d a jury has credibility the exclusive right to (or not) t o witnesses, from the evidence before it."'" turn Savoy v. Watson, 2002)))); and Alabama ( " A P J I " ) 1.03 a n d jury credibility To i s the quoting ( A l a . C i v . App. Instructions: 15.03 (2d e d . 1993) ( r e c o g n i z i n g sole judge of disputed v. facts and Civil that the of witnesses). the extent ownership interest determination Civ. APJI Jury draw (quoting Wells 852 S o . 2 d 1 3 7 , 140 Pattern weigh and Mohammad, 8 7 9 SO. 2 d 1 1 8 8 , 1 1 9 3 ( A l a . C i v . A p p . 2 0 0 3 ) , the and ( A l a . C i v . App. 2010) ( " ' " F u r t h e r m o r e , i n e x e r c i s i n g evidence, in v. the t r i a l i n the was e r r o r . P. (a t r i a l against a party court LLC when as a matter See, e.g., Rule c o u r t may e n t e r only determined of member's law, 50(a)(1), that A l a . R. a judgment as a m a t t e r o f l a w "there evidentiary basis f o ra reasonable 13 each i s no legally sufficient jury to find f o rthat party 2090591 on that 1041 issue"); (Ala. known as only a Woodruff judgment as i s a complete are no we must of Considering with the trial jury t o e a c h LLC 1040, of and granted a material fact for evidence Lezanne r e s o l u t i o n was the in that a as to LLC to presented interest now i n the member's o w n e r s h i p i n t e r e s t . Thus, court e r r e d i n r e f u s i n g to submit that issue to the for resolution. II. A. and instructing purported of their he owed the jury of Dusty and Lezanne assert that the trial court that them The court i t could not o f them f r o m t h e LLC claim that Leslie to Claim "Firing" Lezanne "firing" Alabama law. trial Breach-of-Fiduciary-Duty Purported Dusty the on disputed Dusty i n t e n t i n t r a n s f e r r i n g h i s 20% the jury's 2d i s properly questions Yurii's as So. absence of proof disputed agree 560 directed verdict, law, issue and the a factual Leslie for Johnson, that a matter determination). record, v. (recognizing o r when t h e r e jury's the 1990) when t h e r e issue and under had the breached LLC's consider the Operating 14 jury: by Leslie's as e v i d e n c e i n following colloquy occurred i n s t r u c t e d the erred fiduciary support duties Agreement d u r i n g and and after 2090591 " [ T r i a l court to the j u r y ] : [W]ith respect to the a l l e g e d b r e a c h o f f i d u c i a r y d u t y , ... A l a b a m a i s a n at-will employment state, which means that an e m p l o y e e may be d i s c h a r g e d f o r any reason or no reason unless there is a special contract of employment. And the d i s m i s s a l of Dusty Polk and Lezanne Proctor i s not part of the breach-offiduciary-duty claim. "[Jury dismissed]. " [ A t t o r n e y f o r D u s t y a n d L e z a n n e ] : ... We o b j e c t t o t h e a t - w i l l e m p l o y e e i n s t r u c t i o n . ... [T]he at-will e m p l o y e r , as f a r as t h i s i s c o n c e r n e d , c o n t r a d i c t s that of the Operating Agreement ... the two c o n t r a d i c t each other. "[Trial c o u r t ] : The court notes the plaintiff's objections ... on the at-will employee ... and o v e r r u l e s t h e same." We agree with the trial court that, in employment r e l a t i o n s h i p s g e n e r a l l y are c o n s i d e r e d will 795 of e i t h e r p a r t y . So. will 2d 674, doctrine" contract Pickwick Hotel, and Operating Members applies terms Lezanne may elect of a specific term served one the absence conditions Agreement, However, i n the S o . 2 d 187, as for 189 in more 15 of an 2004, of the the Inc., employment Burks In t h i s LLC. provided Members the at employment dismissal. of at "employee (Ala. 1992). managers executed or t o be M i c h e l i n North America, only for or 607 parte (Ala. 2001). providing providing Dusty 677 Ex Alabama, The that to or v. case, LLC's "[t]he serve as 2090591 M a n a g e r s o f t h e Company f o r t h e p u r p o s e o f h a n d l i n g day details o f t h e Company. ... a period o f one y e a r or u n t i l voted by a of [are] as majority follows: (Emphasis added.) showing t h a t LLC after The M a n a g e r s s h a l l their Based on Yurii, first year of serve f o r or r e c a l l i s The initial Dusty, and the evidence the p a r t i e s continued the replacement t h e Members. [Leslie, t h e day t o managers Lezanne]." presented at t o a c t as managers operation, the trial of the foregoing c o n t r a c t u a l p r o v i s i o n guaranteed t h a t Dusty and Lezanne would remain managers majority of the replaced o f t h e members. LLC instructing was not at court or r e c a l l e d Hence, t h e i r will the jury that The t r i a l consider until and the trial of Dusty and Lezanne's Part I above, the evidence i s i n d i s p u t e positions. indicating breach-of-fiduciary-duty of the shares t o remove a claim. "firing" As in vote the o f t h e LLC s u c h t h a t was record ever 16 held contains to Leslie he could managerial no recall as stated i n as t o whether Dusty and Lezanne from t h e i r However, that erred i t was. of t h e i r have v o t e d court further erred i n not allowing the j u r y to the circumstances a majority of the employment as managers part owned by a v o t e evidence or replace 2090591 Dusty and Lezanne. Rather, as L e s l i e testified, a c t e d i n d i s r e g a r d o f t h e terms o f t h e Operating instead "fire" r e s t e d on h i s r i g h t Dusty enough. not and Lezanne Hence, r e g a r d l e s s have the terminate authority he simply Agreement and as t h e p a t r i a r c h o f t h e f a m i l y t o f o r , i n h i s opinion, not working of the ownership issue, L e s l i e d i d under the Operating Agreement to t h e management p o s i t i o n s o f D u s t y a n d L e z a n n e i n t h e manner i n w h i c h he d i d . Alabama imposes c e r t a i n f i d u c i a r y d u t i e s upon managers o f an LLC. (Ala. LLC In Harbison v. S t r i c k l a n d , 900 S o . 2 d 3 8 5 , 3 8 9 - 9 1 2004), o u r supreme c o u r t owe loyalty recognized t h a t managers o f an t o t h e company a n d t o t h e L L C ' s and care members and t h e o b l i g a t i o n o f good I d . a t 389-90. that those f i d u c i a r y d u t i e s a r e deemed i m p l i c i t l y into operating recognized certain the Act agreements that, although agreements does unreasonably not restrict a recognized incorporated members o f an L L C a r e f r e e t o reach rights LLC's member's 17 LLCs. fair also an of i n Harbison and of court as t o t h e i r allow court faith dealing. the The a duty The and responsibilities, operating right to agreement to information, to 2090591 eliminate reduce a manager's the duty In l i g h t supra, duty of care. of loyalty, of the fiduciary the evidence tending roles addressed trial as managers above, court's prejudicial Sullivan duties to their of motion by LLC their Dusty [Slip. Op. presented (2010) member to fulfill evidence that the Dec. his 21, 2010] superior termination court's of claim based the on member's a f f i r m i n g t h e d i s m i s s a l o f t h e member's claim; the court employee); May Cf. breach-of-fiduciary-duty n o t e d t h a t t h e member h a d b e c a u s e no e v i d e n c e h a d to e s t a b l i s h the existence DBDCV065000468S, claim. (affirming t r i a l against employment c o n t r a c t at-will Harbison, and Lezanne 09407, viable claim of wrongful discharge implied ability breach-of-fiduciary-duty surrounding wrongful-discharge an with to dismiss employment, b u t a l s o been in i n t h e LLC, and t h e other N.Y.S.2d circumstances no identified " a t - w i l l " e m p l o y e e i n s t r u c t i o n was i m p r o p e r a n d , asserted unreasonably to indicate that Leslie's " f i r i n g " agree v. H a r n i s c h , A.D.3d denial we to I d . a t 390. of Dusty and Lezanne i n t e r f e r e d w i t h their or and 22, o f an e x p r e s s and, thus, L L C member was Rowan Geotelec, 2009) 18 v. (Conn. Sup. or merely I n c . , (No. C t . 2009) (not 2090591 reported i n A.2d) properly denied (recognizing a motion t o dismiss claim asserted by a founding majority and shareholder improper that arising termination the t r i a l court had a breach-of-fiduciary-duty member o f a b u s i n e s s against the out of the a l l e g e d l y unexpected of the founding member's e m p l o y m e n t from t h e b u s i n e s s ) . I n G e o r g e H. L a n i e r M e m o r i a l H o s p i t a l v . A n d r e w s , 8 0 9 S o . 2d 8 0 2 , 806 ( A l a . 2 0 0 1 ) , o u r supreme c o u r t stated: "Under Alabama l a w , '"[a] p a r t y i s e n t i t l e d t o proper jury instructions regarding the issues p r e s e n t e d , a n d a n i n c o r r e c t o r m i s l e a d i n g c h a r g e may b e t h e b a s i s f o r t h e g r a n t i n g o f a new t r i a l . " ' K i n g v . W.A. B r o w n & S o n s , I n c . , 5 8 5 S o . 2 d 1 0 , 12 ( A l a . 1991) (citation omitted). When a n o b j e c t i o n t o a j u r y charge has been p r o p e r l y p r e s e r v e d f o r review on appeal, as t h i s o n e w a s , we '"look to the e n t i r e t y o f t h e [ j u r y ] c h a r g e t o s e e i f t h e r e was r e v e r s i b l e e r r o r , " ' and r e v e r s a l i s warranted only i f the error i s prejudicial. K i n g , 585 So. 2 d a t 12." By failing Leslie's to instruct "firing" the jury of court Dusty Andrews, trial "probably and Lezanne. erred could consider i n support c l a i m , we c o n c l u d e t h a t t h e injuriously affected substantial rights" Rule 809 S o . 2 d a t 8 0 6 . court i t also o f D u s t y and L e z a n n e as e v i d e n c e of t h e i r b r e a c h - o f - f i d u c i a r y - d u t y trial that 4 5 , A l a . R. A p p . P.; Therefore, to reversal i n f a i l i n g 19 see a l s o , we c o n c l u d e that the to properly instruct 2090591 the jury as to Dusty and Lezanne's B. I n s u f f i c i e n c y of breach-of-fiduciary-duty claim. Dusty in and Lezanne next Damages argue d e n y i n g t h e i r m o t i o n f o r a new amount of compensatory r e s o l u t i o n was trial damages breach-of-fiduciary-duty for that the the awarded great to undisputed that fiduciary had cash i n the account amount o f for h o w e v e r , we treatment claim. breached his his $262,000 f r o m the use of those of Had Dusty the and jury the Lezanne's properly LLC trial that possibly Dusty 959 So. may be even and 2d punitive Lezanne. 1052 awarded See damages to the by jury evidence. indicating withdrawing by court failing to above, erred a l l the in i t s Inc. evidence c l a i m , i t might have compensatory should Systrends, their discussed considered of the breach-of-fiduciary-duty concluded amount erred on the and As their breach-of-fiduciary-duty higher of duty supporting a them evidence funds. have d e t e r m i n e d t h a t court presented weight They argue t h a t t h e y p r e s e n t e d Leslie trial because, they say, c l a i m t h a t was against Awarded have been v. Group damages awarded 8760, and to LLC, ( A l a . 2 0 0 6 ) ( r e c o g n i z i n g t h a t p u n i t i v e damages for a breach of 20 a fiduciary duty). Thus, the 2090591 trial court's failure to properly breach-of-fiduciary-duty substantial rights" reverse claim "probably of Dusty R. A p p . P.; s e e a l s o instruct injuriously and Lezanne. Andrews, Dusty f o r a new and Lezanne erred i nfailing City o f Gadsden, 809 S o . 2 d a t 8 0 6 . affected Ala. Thus, we c l a i m and trial. further argue t o conduct a hearing, that the t r i a l court p u r s u a n t t o Hammond v . 493 So. 2 d 1374 ( A l a . 1 9 8 6 ) , inadequacy o f t h e j u r y ' s compensatory-damages t o assess award. the B a s e d on r e s o l u t i o n o f t h e i s s u e s a b o v e , we p r e t e r m i t d i s c u s s i o n o f this issue. 4 III. Dusty and Lezanne in on t h e See R u l e 45, t h e judgment on t h e b r e a c h - o f - f i d u c i a r y - d u t y remand t h e cause our the jury Conversion Claim next assert that r e f u s i n g t o submit t h e i r conversion the t r i a l court erred claim to the jury. At B u t s e e P i t t v . C e n t u r y I I , I n c . , 631 S o . 2 d 2 3 5 , 2 3 8 (Ala. 1993) ("[I]n regard t o awards exclusively for c o m p e n s a t o r y damages, o u r h o l d i n g s have n a r r o w e d t h e scope o f Hammond s o t h a t a Hammond h e a r i n g i s n o t m a n d a t o r y w h e r e t h e award i s c l e a r l y s u p p o r t e d by t h e r e c o r d . " ) . In certain c a s e s , h o w e v e r , a t r i a l c o u r t may b e r e q u i r e d t o s t a t e o n t h e record i t s reasons f o r e i t h e r granting or denying a motion f o r a new t r i a l b a s e d u p o n t h e a l l e g e d e x c e s s i v e n e s s o r i n a d e q u a c y o f a j u r y ' s v e r d i c t e v e n t h o u g h o n l y c o m p e n s a t o r y damages a r e awarded. 4 21 2090591 trial, on D u s t y and Lezanne L e s l i e ' s having i.e., cash, personal converted credit use. submit both claims to select cards, The the which the s o u g h t damages f o r c o n v e r s i o n trial property and belonging personal indicated court that of and those for the jury's instructed conclusion the jury on the instructions Lezanne did failure trial not to and presented Lezanne to pursue. their the to to being ruling, claim that the of conversion the of jury. claim, i n defense Thus, 22 Dusty i t for in those conversion. Dusty Despite court's their alleged error breach-of-fiduciary- their jury retired and to failure. trial court include not claim trial submitted choose between t h e i r i n support to to Without court's evidence, the did Lezanne's object remained v i a b l e u n t i l evidence claims court object f o r c i n g them t o d u t y c l a i m and of a l l the the D u s t y and in conversion consideration. resolution; earlier not Lezanne s e l e c t e d the b r e a c h - o f - f i d u c i a r y - d u t y A f t e r the and i t would the s p e c i f i c a l l y s t a t i n g an o b j e c t i o n t o t h e t r i a l D u s t y and his and they wished LLC, for Dusty i t instructed claims the property, breach-of-fiduciary-duty jury, to based to of and conversion deliberate that claim Lezanne claim because had been could have 2090591 alerted the the trial trial court's conversion by to cannot to address instruct to D u s t y and c l a i m and issue review. Ala. 51, R. Civ. do to on to their so. trial court choose between their claim the to preserve P., jury t h e i r conversion relating Lezanne f a i l e d objecting t h a t the Lezanne to submit t h e i r conversion the by the however, b e c a u s e D u s t y and Rule error assume, w i t h o u t d e c i d i n g , requiring refusing to They f a i l e d , breach-of-fiduciary-duty by i t s alleged failure claim. E v e n i f we erred court provides, to the claim jury, conversion i t for in and we claim appellate part: "No p a r t y may a s s i g n a s e r r o r t h e g i v i n g o r f a i l i n g t o g i v e a w r i t t e n i n s t r u c t i o n , o r t h e g i v i n g o f an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, s t a t i n g the matter o b j e c t e d t o and the grounds of the o b j e c t i o n . " I n C h a n d l e r v. 2008), this court Virciglio, 997 So. 2d 304 (Ala. Civ. stated: "As o u r s u p r e m e c o u r t h a s s t a t e d , ' [ b ] y f a i l i n g to o b j e c t b e f o r e the j u r y r e t i r e s to d e l i b e r a t e , a p a r t y w a i v e s any e r r o r i n t h e c o u r t ' s i n s t r u c t i o n s . ' A d r i a t r i c I n s . Co. v . W i l l i n g h a m , 567 So. 2 d 1282, 1282 (Ala. 1990). Furthermore, "'"[u]nchallenged jury instructions become t h e law o f t h e c a s e . Louisville & N a s h v i l l e R.R. v . A t k i n s , 435 So. 2 d 1275 (Ala. 1 9 8 3 ) . " C l a r k v. B l a c k , 630 So. 2d 23 App. 2090591 1012, 1017 ( A l a . 1 9 9 3 ) . "The j u r y i s b o u n d to f o l l o w such i n s t r u c t i o n s , even i f they are erroneous. L e e v . G i d l e y , 252 A l a . 156, 40 So. 2d 80 (1949) (erroneous i n s t r u c t i o n s became t h e l a w o f t h e c a s e , and a judgment entered on t h e jury's v e r d i c t comporting w i t h those i n s t r u c t i o n s w o u l d n o t b e r e v e r s e d o n a p p e a l ) . " 630 S o . 2d a t 1017.'" 997 S o . 2 d a t 308 844 (Ala. 1995)). and Chandler, ( q u o t i n g BIC Corp. v. Bean, 5 In reliance s u p r a , we c a n n o t on R u l e address 5 1 , A l a . R. C i v . P., any e r r o r c o u r t ' s r e f u s a l t o submit Dusty to and Lezanne f a i l e d t h e j u r y because Dusty alleged error in asserted and Lezanne's c o n v e r s i o n c l a i m to preserve Wantonness that Claim and Lezanne a l s o a s s e r t t h a t t h e t r i a l refusing i n the t r i a l f o r appeal. IV. Dusty 669 S o . 2 d 8 4 0 , t o submit against to the jury their court erred c l a i m of wantonness Leslie. "'Wantonness i s a q u e s t i o n o f f a c t for a jury, u n l e s s t h e r e i s a t o t a l l a c k o f evidence from which the jury could reasonably infer wantonness. " W a n t o n n e s s " i s ... t h e c o n s c i o u s d o i n g o f some a c t or t h e o m i s s i o n o f some d u t y w h i l e k n o w i n g o f t h e e x i s t i n g c o n d i t i o n s and being conscious t h a t , from In Chandler, supra, t h i s court considered the debtor's statute-of-limitations argument on other grounds. See C h a n d l e r , 997 S o . 2 d a t 3 0 8 - 0 9 . We f i n d n o s u c h a l t e r n a t i v e g r o u n d s t o be a p p l i c a b l e i n t h i s c a s e . 5 24 2090591 d o i n g o r o m i t t i n g t o do or p r o b a b l y r e s u l t . ' " Allen v. Hill, 758 So. (quoting McDougle v. 1988)). See Ala. also " w a n t o n n e s s " as or conscious sine qua 821 So. 149, 156 Southern quoting in 882 In Code of turn (Ala. of 686 Henderson of their "fire" them violated the terms of to D u s t y and purported 231 (Ala. (defining 2d of (quoting 1100, Alabama reckless others"). defendant i s C i t y of Power 'the Montgomery, Ricketts 1106 to from the claim, (Ala. Co., 627 v. 1996), So. firing, accessing the the LLC, Operating Leslie books (see, e.g., of and that 2d Leslie which, they Agreement, had that, 5 6.1, at LLC Lezanne had claimed, as since prohibited the c e r t a i n s p e c i f i e d records 25 Dusty indicate Lezanne a l s o t e s t i f i e d O p e r a t i n g Agreement maintain 228, safety v. 2001) wantonness to the 1999) 1993)). support from App. 6-11-20(b)(3) Norris v. purported Lezanne § likely Civ. 2d i n j u r y ] of the tending that So. r i g h t s or So. evidence of (Ala. 534 (Ala. produced above. 576 1975, the n.9 Ry., injury will w h i c h i s c a r r i e d on w i t h a [of r i s k Norfolk 979, 574, of wantonness.'" 2d act, Shaddrix, disregard 'knowledge' non 2d "[c]onduct "The an set the out date Dusty in violation and of r e q u i r i n g the LLC i t s o f f i c e s and to 2090591 make t h e m a v a i l a b l e t o a l l m e m b e r s ) ; t h a t L e s l i e h a d failed make d i s t r i b u t i o n s t o a l l t h e violation of the Operating requiring members interests); and state Agreement a l l profits in and the income-tax of the In with (see, in 5.1 their respective failed to timely f o r the e.g., LLC end of the financial to Dusty 5.2, reports the percentage file federal in violation LLC's books at the of and a l l o c a t e d between and responding Leslie that the authority to "fire" exercised also admitted that the he of the requiring 6.4, the accounting and tax year returns at allegations Lezanne's r i g h t as although of 2 0 0 7 b e c a u s e he the LLC he he had Agreement D u s t y and his that stated Operating that, business and acknowledged i t s members, i t had April t o be 55 6.1 admitted by e.g., LLC 55 O p e r a t i n g Agreement, but had the of times). wantonness, he losses returns preparation specified (see, t h a t L e s l i e had O p e r a t i n g Agreement balancing and accordance and members o f to had signed never did not read grant i t . him Lezanne, but he testified their to do the was father Operating t o be been so c o n d u c t e d and had "fired" 26 two the that stated managed managed LLC's other He Leslie Agreement not the so. c o n d u c t e d and the since members 2090591 at that caused time. to knowledge We the be timely conclude the jury part that excluded demanded sufficient that to that timely Leslie filed Leslie since A p r i l or also inferred indicating information from support any from wantonness 362 S.C. on 201, t h a t LLC's manager members, vacate that he and that premises the LLC's court's trial financial denied was members f r o m t h e L L C ' s o p e r a t i o n , t h e members not presented J o r d a n v. H o l t , (evidence had 2007. e v i d e n c e was reasonably See, e.g., financial wrongfully be income have (2005) withheld to sufficient could of L e s l i e . presented prepared. of the LLC's 608 S . E . 2 d 129 he was income-tax returns reports which Evidence finding against LLC's manager o f w i l l f u l and wanton m i s c o n d u c t and award o f p u n i t i v e damages). A s a r e s u l t , we in to submit the issue failing V. The conclude that the t r i a l of wantonness LLC's C o n v e r s i o n to the the on the LLC's jury's verdict. i s s u e , we b r i e f l y conversion claim was jury. by the the evidence presented support of the LLC's c o n v e r s i o n 27 claim. trial i n contravention To a d e q u a t e l y a d d r e s s a n d u n d e r s t a n d review erred Claim Dusty next a s s e r t s t h a t t h e judgment e n t e r e d court court of this to the jury i n On b e h a l f o f t h e LLC, 2090591 Leslie asserted had been LLC by customers lawyer's t r u s t collected had Dusty into that trust Dusty, after LLC belonging to the to the LLC from some o f t h a t m o n e y i n t o h i s Leslie o f t h e money he had purported to fire one payment Construction him i n t h e amount of p a y a b l e t o and b e l o n g i n g that that payment had account m a i n t a i n e d by Dusty's t o make c e r t a i n Lezanne, the been lawyer. i t was u n d i s p u t e d t h a t D u s t y h a d a u t h o r i z e d account, outstanding, owed with o t h e r t h a n LLC b u s i n e s s . acknowledged a trust Additionally, attorney payments collected from A l d r i d g e deposited converted funds and d e p o s i t i n g admitted that, t h e LLC. employment account and u s i n g p o r t i o n s t h e L L C , he $103,500 his Dusty's several f o r purposes Dusty to after terminated, Dusty collecting certain from that, payments including from the funds h e l d i n payment of salaries and o t h e r employees o f t h e LLC t h a t payments to suppliers o f t h e LLC that owed to remained remained o u t s t a n d i n g , and o t h e r r e c u r r i n g d e b t s t h a t t h e LLC p r e v i o u s l y had agreed t o pay and had p a i d a d m i t t e d t h a t , as a manager issue the payments on b e h a l f i n the past. Although Leslie o f t h e LLC, Dusty had a u t h o r i t y t o o f t h e LLC, payments a u t h o r i z e d by Dusty 28 Leslie objected to a l l from the t r u s t account, with 2090591 the exception Plumbing, the further jobs LLC, that but purportedly those had one payment one o f t h e L L C ' s Dusty other of f o r $36,630 that he o r i g i n a l l y fired he had unfinished while at the that dismissed from t h e LLC operating begun Dusty t e s t i f i e d a f t e r h e was jobs Absolute Plumbing as McGregor completed had obtained remained him. to suppliers. testified which made several working f o r time Leslie he h a d f i n i s h e d and a f t e r and that he he had c r e d i t e d p a y m e n t s he r e c e i v e d upon c o m p l e t i o n o f t h o s e j o b s to Absolute of the Plumbing. funds portion admitted With received of those that he the possible f o r those payments the LLC's converted depositing consideration conversion any funds the any fired of t h i s claim, to of denied the LLC. that any Leslie earned by from t h e LLC. evidence, into the jury that t o t h e LLC payment o f $1,200 t h e moneys finding belonging $103,500 Dusty belonged d i d n o t want Dusty a f t e r Dusty had been Upon jobs, exception by Dusty rejected had not collecting and the t r u s t account, by s p e n d i n g any p o r t i o n o f t h e funds i n t h a t t r u s t account, o r by collecting while any working other with payments t h e LLC. f o r jobs originally B e c a u s e i t was 29 obtained undisputed that 2090591 Dusty was behalf that a member o f t h e LLC w i t h o f t h e LLC, t h e j u r y Dusty had not acted the authority reasonably wrongfully could t o a c t on have i n taking concluded control of the p a y m e n t s he c o l l e c t e d a n d t h a t D u s t y h a d n o t m i s u s e d t h e f u n d s deposited Bank of into the t r u s t account. Dothan, constitute 584 So. conversion, wrongful detention ownership, or 2d there See B a x t e r 801, 804-05 illegal use an i l l e g a l or SouthTrust ( A l a . 1991) must be a w r o n g f u l of interference, an v. misuse taking ("To or a assumption of of another's property."). The the trial court subsequently ordered Dusty disburse b a l a n c e o f t h e t r u s t a c c o u n t t o t h e members o f t h e L L C i n accordance determined Dusty, with their by the t r i a l and 10% to court's judgment, damages to ownership court, Lezanne. which Leslie, he invades interest i.e., Dusty in Dusty's The argues characterizes the province funds, characterization of the t r i a l jury's conclusion i . e . , that that Dusty he h a d n o t w r o n g f u l l y 30 the LLC 70% t o L e s l i e , that as of as 20% t o the trial an award of the jury and v i o l a t e s h i s 7 t h Amendment r i g h t t o a j u r y t r i a l . with to We court's disagree judgment. had not converted the detained those funds 2090591 and had not illegally the interfered used or misused undisputed belonged Thus, fact t h a t those funds the conversion continued the jury claim, funds At a l l times i t was n o t e r r o r although illegally or alter account Dusty r i g h t f u l l y belonged t o t h e LLC. found i n t o t h e LLC. that portion of the t r i a l trust during the t r i a l , court to conclude favor the remaining balance to belong ownership i n the f o r the t r i a l had assumed t h e LLC's p r o p e r t y , d i d n o t that t o the LLC. acknowledged or We, of Dusty i n the trust however, must that, on the account reverse c o u r t ' s judgment d i r e c t i n g Dusty and Lezanne t o d i s b u r s e 70% o f t h a t b a l a n c e t o L e s l i e because, d i s c u s s e d above, of shares each t h e j u r y must f i r s t member owns determine i n t h e LLC. funds be d i s b u r s e d a c c o r d i n g t o t h e i r VI. Dusty Judicial and Lezanne declaring that the judicially dissolving assert LLC then can the percentages. Dissolution that had the percentage Only proper as no t h e LLC. the t r i a l outstanding Dusty court erred i n debts and and Lezanne argue by that none o f t h e L L C ' s members s o u g h t d i s s o l u t i o n o r r e q u e s t e d s u c h relief and that the trial court 31 could not have properly 2090591 determined their that the LLC had no debts. We agree i n part with of Act, argument. Section 10-12-38, Ala. Code 1975, a part the provides: "On a p p l i c a t i o n b y o r f o r a member, t h e c i r c u i t court f o r the county i n which the articles of o r g a n i z a t i o n a r e f i l e d may decree d i s s o l u t i o n of a limited liability company whenever i t is not r e a s o n a b l y p r a c t i c a b l e t o c a r r y on t h e b u s i n e s s i n conformity with the articles of organization or o p e r a t i n g agreement." At the trial, Lezanne w i s h e d t o have the made t o the LLC Baldwin legally Circuit county i n which the LLC place the a court even parties. raised issue of by Rule the had Court, pleadings objection the circuit was R. not Civ. tried not express been r a i s e d i n the p l e a d i n g s . " ) ; shareholders asserted So. 2d against i n the 998 the complaint (Ala. were 32 or implied treated i n a l l respects 2004) majority any trial ("When i s s u e s as 890 the to the p a r t i e s , they s h a l l Sanders, the of consent of the i f t h e y had be by for sufficient p l e a d e d by P. she request, court d i s s o l u t i o n before Ala. are that Lezanne's been o r g a n i z e d , r e q u e s t was 15(b), without dissolved. judicial though that See testified (claims shareholder deemed t r i e d and Robbins by that by v. minority were consent not when 2090591 there was no upon o b j e c t i o n at claims first circumstances being evidence the LLC no that extent of the the trial to at the resolution court was of to trial. of LLC. member's and c o n t r o l of Without and evidence liabilities, order Dusty to balance an premature disburse to Dusty as i t was to 70% Leslie. of LLC trust legally account; of the we remand t o d e t e r m i n e t h e a s s e t s and equitable distribution Such a d i s t r i b u t i o n percentage interest 33 this trial d i s s o l v e d and of the above. court's ordering cause the LLC a for liabilities any a court's of remaining c a n be made o n l y in the Such addressed aspect the premature issue that that certain of the a s s e t s o f t h e LLC. Additionally, light reverse for debts. ownership-interest further proceedings and conclusively establish in d e c l a r i n g the distribution we possession the also the therefore, judgment to had trust-account distribution each conformed LLC's a s s e t s then-existing LLC to Leslie belonging the prejudice case, outstanding assets We, f i n d no in this during shareholder the presented had majority Under r e c o r d , however, does not testified for raised the deeming t h a t the p l e a d i n g s of the p a r t i e s by the by trial). presented any The trial has after been 2090591 determined by t h e a p p r o p r i a t e trier of fact. Because of the manner i n w h i c h t h e p a r t i e s have r a i s e d t h e i s s u e s , t h e l e g a l d i s s o l u t i o n o f t h e LLC i n v o l v e s b o t h e q u i t a b l e determinations for f o r the jury. the t r i a l court and f a c t u a l determinations Conclusion We affirm t h e judgment conversion claim verdict the on and LLC's the entered judgment claim of t h e judgment as t o t h e o t h e r and remand with this t h e cause issues on Lezanne's the We, jury's however, addressed above, consistent opinion. Thompson, in entered and f o r further proceedings A F F I R M E D I N PART; R E V E R S E D Bryan, Dusty conversion. reverse we on P . J . , and Pittman J . , concurs the result, with I N PART; AND REMANDED. a n d Thomas, J J . , c o n c u r . i n the rationale i n part writing. 34 and concurs 2090591 BRYAN, Judge, concurring concurring i n the r e s u l t . I concur opinion. i n the r e s u l t in the reached In a l l other respects, 35 I rationale i n Part concur. in part and II.A. of the main

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