SPURLOCK (BEN) VS. BEGLEY (TATE)
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RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002523-MR
BEN SPURLOCK
v.
APPELLANT
APPEAL FROM LESLIE CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 07-CI-00063
TATE BEGLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
VANMETER, JUDGE: Ben Spurlock appeals from a judgment entered upon a
jury verdict adjudging him liable on a contract under which Tate Begley claimed
that Spurlock purchased his 25% interest in Caribou Coal Processing, LLC.
Spurlock alleges that Begley did not own an interest in the company, and the
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
contract accordingly was void for want of consideration. Finding no error, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Robert Griffin formed a limited liability company, Caribou Coal
Processing, LLC, for the purpose of acquiring and operating a coal tipple in Leslie
County, Kentucky. After forming Caribou, Griffin approached Begley about
investing in the company. Rather than becoming an equity investor in the
company, however, Begley borrowed $75,000.00 from a local bank and loaned the
money to Caribou. In return, on November 10, 2004, Caribou executed a
promissory note payable to Begley,2 which provided that the loan amount was to
be repaid in full by June 1, 2005. The due date passed without any repayment on
the note, although Begley regularly contacted Griffin about repayment. Griffin
continued to promise to begin making payments on the note.
At some point, Griffin exchanged a 25% interest in Caribou to Up The
Creek Mining, LLC, a company in which Ben Spurlock had an ownership interest,
for a 25% interest in the latter business. Spurlock had originally formed Up the
Creek with two men, James Woods and Tony Hamilton. Thus, at the time of the
events discussed herein, Griffin owned 75% and Up The Creek owned 25% of
Caribou.3
2
Begley’s bank loan was for an interest rate of 8½ percent whereas the Caribou note paid an
interest rate of 8 percent. How Begley was to profit from his loan to Caribou is unclear, although
he apparently anticipated sharing in the profits of the company as a result of the loan. Nothing in
the record explains this anomaly.
3
Spurlock testified that while this agreement was indeed entered into, Griffin never formally
transferred the interest on the records of Caribou.
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Begley and Spurlock first met when Begley stopped by a new coal
mine Spurlock’s company, Up The Creek, was placing into operation. Begley,
who understood that the coal from the mine was going to be processed through the
Caribou tipple, believed that he might benefit indirectly from the arrangement if
Caribou realized profits which could be used to repay his loan.
Begley next met with Spurlock when, at Spurlock’s invitation, he
attended a meeting at Caribou’s offices in Manchester, Kentucky (the Manchester
meeting). Griffin, Hamilton, and perhaps Woods also attended the meeting.
According to Begley’s testimony, Spurlock proposed at the meeting that Griffin
give Begley a 25% interest in Caribou until such time as the company paid its
$75,000 debt to him.4 Griffin agreed to Spurlock’s proposition, and he orally
announced that he was giving Begley a 25% interest in Caribou. Evidently, no
documentation was ever executed to formalize Begley’s interest in Caribou.
Begley, who testified that Griffin informed him that he would prepare the
necessary paperwork but never did, could testify to no further actions taken by
Griffin or Caribou to memorialize the transfer of the interest.
On February 22, 2006, Spurlock came to Begley’s office and
proposed to purchase Begley’s 25% interest in Caribou, along with the associated
$75,000 note. According to Begley’s testimony, he and Spurlock came to the
understanding that by purchasing the note, Spurlock would replace Begley as
4
Spurlock testified that he did not make this suggestion and, in fact, did not know that the issue
of Begley being given an interest in Caribou had even been discussed at the meeting.
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owner of a 25% interest in Caribou. In other words, the understanding was that by
purchasing the note, Spurlock would also purchase Begley’s 25% interest in the
company.5 Spurlock rejected the detailed agreement which Begley prepared in
anticipation of the transaction, suggesting instead that “let’s just do a two or three
liner.” Begley then typed up a bare-bones note and agreement which provided as
follows:
70000.00 will be paid by Ben Spurlock 200 Dawahare
Dr. Hazard, KY 41701 by May 01, 2006. This
transaction is for 25 percent ownership of Caribou Coal
Processing LLC. If the note is not paid by the due date
then an additional charge for what ever [sic] interest
incurred by Tate Begley will be added to the balance.
This is in reference of [sic] the promissory note signed by
Caribou Coal November 10, 2004 copy [sic] of note will
be included in the agreement.
The parties signed the note and agreement on February 22, and their signatures
were notarized. Spurlock paid Begley $5,000 by check that day, with the balance
to be paid pursuant to the note. Although Begley testified that he believed the
check was drawn on a Caribou checking account, the physical evidence at trial
showed it was actually drawn on an Up The Creek account.
After the due date passed without Spurlock making payment under the
agreement, Begley contacted Spurlock. According to Begley, Spurlock stated that
he was unable to pay because he had not been mining any coal, but he neither
denied owing the debt, nor questioned the legitimacy of Begley’s ownership
interest in Caribou. By contrast, Spurlock testified that shortly after February 22,
5
Spurlock testified that he was not purchasing the note but, rather, was purchasing only Begley’s
25% interest in Caribou.
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2006, he told Griffin about his purchase of the 25% interest in Caribou, and Griffin
told him that Begley did not own an interest in the company, but, rather, merely
held a promissory note. Spurlock stated that Griffin “made fun of him” for buying
a nonexistent interest. He testified that once he learned this information, he no
longer felt obligated under the February 2006 agreement.
At some later point, Caribou became insolvent and ceased operations.
Hence, the original $75,000 Caribou promissory note in favor of Begley, which
then was purchased by Spurlock in connection with his purchase of Begley’s 25%
interest in Caribou, lost all value.
In March 2007, Begley filed a complaint in the Leslie Circuit Court
seeking a judgment on the February 2006 promissory note and agreement.
Spurlock’s answer denied liability, alleging failure of consideration based on
averments that Begley’s fraudulent misrepresentation that Begley owned a 25%
interest in Caribou, when, in fact, Begley did not, and never has, owned an interest
in the company. Spurlock also filed a counterclaim for the $5,000 down payment
he made to Begley in February 2006.
A jury trial was conducted in August 2007. The case was submitted
to the jury upon a single interrogatory, as follows:
Do you believe from the evidence heard in this case that
Robert Griffith [sic] transferred to Tate Begley at [sic]
25% ownership interest in the company, Carabou [sic]
Coal Processing, LLC?
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The jury replied affirmatively, and the trial court entered a judgment in favor of
Begley. The court denied Spurlock’s subsequent motion for judgment
notwithstanding the verdict. This appeal followed.
ENTITLEMENT TO DIRECTED VERDICT
In his first and second arguments Spurlock contends that the judgment
against him should be reversed because Begley was not an “owner” of Caribou
Coal Processing, LLC, resulting in a failure of the consideration (the 25% interest
in Caribou) he was to receive in return for his $5,000 down payment and $70,000
promissory note. We construe this argument as one that the trial court erred by
failing to grant Spurlock’s motion for a directed verdict.
A directed verdict is “appropriate when, drawing all inferences in
favor of the nonmoving party, a reasonable jury could only conclude that the
moving party was entitled to a verdict.” Buchholtz v. Dugan, 977 S.W.2d 24, 26
(Ky.App. 1998). The trial court is required to “consider the evidence in its
strongest light in favor of the party against whom the motion was made and must
give him the advantage of every fair and reasonable intendment that the evidence
can justify.” Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991). In our review,
we must “consider[ ] the evidence in the same light.” Id.
Viewed in the light most favorable to Begley, the relevant facts
pertaining to whether Begley received an ownership interest in Caribou as a result
of Griffin’s oral commitment are as follows: (1) Griffin voiced at the Manchester
meeting that he was giving Begley a 25% interest in Caribou; (2) Spurlock was
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aware of this; (3) Griffin owned a 75% interest and Up The Creek owned a 25%
interest in Caribou at the time of the Manchester meeting; (4) Griffin and Up The
Creek (through Spurlock, Griffin, Hamilton, and Woods as its agents) unanimously
agreed that Begley would receive a 25% interest in Caribou; (5) no documentation
or paperwork was ever completed to memorialize the transfer of the 25% Caribou
interest to Begley; and (6) both Begley and Spurlock believed Begley had a 25%
interest in Caribou.
Limited liability companies are creatures of statute, and their
organizational and operating parameters are extensively codified in KRS Chapter
275. We begin by noting, however, that the chapter does not define LLC
“owner(s)” or “ownership.” Rather, the chapter speaks to “limited liability
company interest” or the “interest in the limited liability company,” which KRS
275.015(12) defines as “the interest that may be issued in accordance with KRS
275.195.” Moreover, “[a] limited liability company interest [(LLC interest)] may
be issued in exchange for consideration consisting of cash, property, services
rendered, or a promissory note or other obligation to contribute cash or property or
to perform services.” KRS 275.195(1). Additionally, the chapter provides for
LLC “members,” who are defined by KRS 275.015(16) as including “a person or
persons who have been admitted to membership in a limited liability company as
provided in KRS 275.275 and who have not ceased to be members as provided in
KRS 275.280[.]”
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A careful reading of KRS Chapter 275 discloses that a member may
assign his or her LLC interest to another unless an operating agreement provides
otherwise. KRS 275.255(1)(a). Such an assignment permits the assignee to
receive, to the extent provided, the distributions to which the assignor would be
entitled. KRS 275.255(1)(b). This section also makes clear that an assignment
does not dissolve the LLC or entitle the assignee to participate in the management
of the LLC, and the assignor remains a member of the LLC unless and until the
assignee is admitted to membership. KRS 275.255(1)(c), (d). Furthermore, an
LLC interest, whether held by a member or by an assignee, may but is not required
to be evidenced by a certificate. KRS 275.255(2). Most importantly, although the
formal admission of any new member to an LLC generally must be made in
writing, KRS 275.265(1), we have found no requirement that a mere assignment of
an LLC interest must be made in writing. See Frear v. P. T. A. Industries, Inc.,
103 S.W.3d 99, 105 (Ky. 2003) (observing that “under contract law, an oral
contract is ordinarily no less binding than one reduced to writing”) (citing
Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 445 (Ky. 1997)); see also
Skaggs v. Wood Mosaic Corp., 428 S.W.2d 617, 619 (Ky. 1968) (“[i]n the absence
of a statutory requirement [a contract] need not be in writing”). As the record
contains no operating agreement for Caribou, we must presume that Caribou had
no operating agreement that either restricted the transfer of its LLC interests, or
required such transfers be in writing.
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Spurlock argues, without citation, that “[t]he only method to have
‘ownership’ in a limited liability company is to be admitted as a member.
Anything less than membership or ownership merely results in being entitled to a
distribution and not to decision make or guiding the company.” Spurlock quotes
Elrod v. Schroader, 261 Ky. 491, 498, 88 S.W.2d 12, 15 (1935) for the proposition
that
[g]enerally speaking, “ownership” embodies the idea of
exclusive right of possession, enjoyment, and disposal
-the right by which property belongs to some one in
particular to the exclusion of all others and claim of
ownership is synonymous with claim of title. Stryker v.
Meagher, 76 Neb. 610, 107 N.W. 792 [(1906)]; Ducre v.
Milner (La. App.) 140 So. 158 [(1932)]; Thompson v.
Kreutzer, 112 Miss. 165, 72 So. 891 [(1916)]. In Ohio
Valley F. & M. Ins. Co.'s Receiver v. Skaggs, 216 Ky.
535, 287 S.W. 969, 970 [(1926)], it is said: “The essence
of the ownership of a thing is that aid which organized
society will through the courts, as its agents, give to one
individual to the exclusion of all others, to take or keep
possession of it.”
Although we agree with the quoted passage, Spurlock’s argument ignores the
express provisions of KRS Chapter 275, which allow for the possibility of a
division between management rights (membership) and economic rights (an LLC
interest). See Thomas E. Rutledge and Lady E. Booth, The Limited Liability
Company Act: Understanding Kentucky’s New Organizational Option, 83 Ky. L. J.
1, 33 (1995). Notwithstanding that an assignee of an LLC interest may have no
say in the management of an LLC, the assignee still has “exclusive rights of
possession, enjoyment, and disposal” Elrod, 261 Ky. at 498, 88 S.W.2d at 15, as
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recognized and protected under KRS 275.255. Similar nonmanaging interests may
exist in other business organizations, as in the case of non-voting common stock in
corporations, see KRS 271B.2-020(2)(b) (articles of incorporation may limit
powers of shareholders), or limited partners in limited liability partnerships. See
KRS 362.2-302 (a limited partner cannot “act for or bind [a] limited partnership”).
In this case, the trial court submitted a simple instruction to the jurors,
asking whether they believed that Robert Griffin transferred 25% ownership in
Caribou to Begley. We hold that such instruction was sufficient to cover the
assignment of a 25% LLC interest in Caribou, and Begley was not required to
prove that Griffin or Caribou formally admitted him as a member of the LLC.6
Spurlock next argues that no consideration passed since Caribou was
administratively dissolved by the Kentucky Secretary of State in November 2007,
soon after the trial in this matter, and that the note was practically worthless as
being in default at the time of the transaction.
On this issue we note that “‘the construction and interpretation of a
contract, including questions regarding ambiguity, are questions of law to be
decided by the court.’” Frear, 103 S.W.3d at 105 (quoting First Commonwealth
6
We believe the dissent erroneously states that KRS 275.310 sets forth the ownership
characteristics of an assigned LLC interest. Those characteristics are delineated in KRS 275.255.
Furthermore, unlike the dissent, we do not view KRS 275.310 as manifesting legislative
guidance that an assignee of an LLC interest either does not possess an equity interest an LLC or
may not receive liquidation distributions. Such position ignores the express provisions of KRS
275.255(1)(b) that “[a]n assignment shall entitle the assignee to receive, to the extent assigned,
only the distributions to which the assignor would be entitled.” The relative priority to
entitlement to liquidation distributions between a member of an LLC and any assignee, however,
is not an issue before this court.
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Bank of Prestonsburg v. West, 555 S.W.2d 829, 835 (Ky.App. 2000)). If no
ambiguity exists, “a written instrument is to be strictly enforced according to its
terms which are to be interpreted ‘by assigning language its ordinary meaning and
without resort to extrinsic evidence.’” Allen v. Lawyers Mut. Ins. Co. of Ky., 216
S.W.3d 657, 659 (Ky.App. 2007) (quoting Island Creek Coal Co. v. Wells, 113
S.W.3d 100, 104 (Ky. 2003)). Contracts “must be supported by a consideration,
but the adequacy of the consideration cannot be inquired into if there is something
of detriment to one party or benefit to the other, however slight.” Posey v.
Lambert-Grisham Hardware Co., 197 Ky. 373, 379, 247 S.W. 30, 33 (1923).
Mutual promises form valid consideration for agreements. Campbell v. Campbell,
377 S.W.2d 93, 95 (Ky. 1964).7
Here, Begley and Spurlock agreed in February 2006 that Begley
would transfer to Spurlock a 25% interest in Caribou, as well as the $75,000 note.
In return, Spurlock agreed to pay Begley $5,000 upon the signing of the
agreement, plus another $70,000 by May 1, 2006. We hold that the assignment of
the 25% interest in Caribou took place upon the agreement’s execution, based on
not only its plain language, but also its lack of contingencies as to its effective date.
Indeed, the only future date listed in the agreement was the May 2006 date for
7
The benefit of the transaction to Begley is apparent: he gets paid for a note which is past due.
The benefit of the transaction to Spurlock is not so clear in hindsight, but at the time of the
transaction, Spurlock perhaps saw value in the business operations of Caribou, and in improving
his position as regards the other owners of Caribou, both as a creditor and/or as an assignee of
the LLC interest. However, as noted, our place is not to question the “adequacy of the
consideration . . . if there is something of detriment to one party or benefit to the other, however
slight.” Posey, 197 Ky. at 379, 247 S.W. at 33.
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Spurlock’s final performance. We take judicial notice8 that according to the
records of the Kentucky Secretary of State, Caribou apparently was in good
standing both at the time of the agreement and on May 1, 2006. In fact, an annual
report was filed on behalf of Caribou with the Secretary of State in August 2006.9
Parties to a business transaction enter into their agreement and
allocate various risks to the transaction according to the agreement’s terms or
contingency clauses. Frequently, parties will enter into an agreement in which the
transaction’s effective or closing date is postponed to some future time to enable
the parties to conduct whatever investigation or due diligence they, or their
counsel, deem necessary to ensure that the value bargained for is viable. In this
instance Spurlock, according to Begley’s testimony, apparently insisted upon and
signed a fairly simple agreement without the benefit of counsel. In hindsight
Spurlock made a poor decision, but that fact does not mean the transaction lacked
consideration. Begley agreed to transfer to Spurlock a 25% interest in Caribou and
the $75,000 Caribou note. In exchange, Spurlock agreed to pay Begley $5,000
upon signing, and $70,000 on May 1, 2006. If Spurlock had wished subsequent
developments to impact his obligation to pay, he easily could have insisted on such
provisions in his contract with Begley. As a court, we may not “change
obligations of a contract which the parties have made,” nor “add a condition which
8
Kentucky Rules of Evidence (KRE) 201(f) provides that “[j]udicial notice may be taken at any
stage of the proceeding.”
9
Kentucky Secretary of State, On-Line Business Database, Caribou Coal Processing, LLC
(http://apps.sos.ky.gov/business/obdb/showentity.aspx?id=0572653&ct=06&cs=99999).
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was not written into the contract.” White v. Winchester Land Dev. Corp., 584
S.W.2d 56, 64 (Ky.App. 1979).
The cases cited by Spurlock, regarding impossibility of performance,
do not compel a different result. In Senters v. Elkhorn & Jellico Coal Co., 284 Ky.
667, 145 S.W.2d 848 (1940), the parties entered into a contract for the removal of
rock and dirt so that the coal company could construct a tram road. The company
defended against enforcement of its contractual obligation on the basis that the
parties understood that the acquisition of another piece of property was a condition
of the contract, that the land had not been acquired, and that by mutual mistake this
provision had been omitted from the written contract. The court expressed the rule
of law that “when the performance of a contract is based upon the continued
existence of a given thing, the existence being assumed as a basis of the contract,
performance is excused when the existence fails.” 284 Ky. at 673, 145 S.W.2d at
851. Swiss Oil Corp. v. Riggsby, 252 Ky. 374, 67 S.W.2d 30 (1933), also cited by
Spurlock, involved the termination of an oil and gas lease once the gas was
exhausted. The court applied the rule that “the continuation of the subject-matter
of the contract is the essential foundation of the obligation. And when that subjectmatter is shown to have become non-existent, performance is excused and the
contract terminates by operation of law.” 252 Ky. at 383, 67 S.W.2d at 34.
By contrast, in the case sub judice, the contract’s subject matter was
Caribou Coal Processing, LLC, which was in existence at all times relevant to the
parties’ agreement. Indeed, Spurlock was in breach of the agreement in May 2006,
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long before Caribou was administratively dissolved by the Kentucky Secretary of
State. See 17A Am.Jur.2d, Contracts § 674 (2004) (“The parties are excused in
case, before breach and without the fault of either party, performance becomes
impossible by reason of a thing or condition ceasing to exist[.]” (Emphasis
added.)) Caribou’s subsequent dissolution has no bearing on Spurlock’s unmet
obligation to pay.
JURY INSTRUCTIONS
As previously noted, the case went to the jury on the following barebones interrogatory: Do you believe from the evidence heard in this case that
Robert Griffith [sic] transferred to Tate Begley at [sic] 25% ownership interest in
the company, Carabou [sic] Coal Processing, LLC?” The court rejected
Spurlock’s tendered instruction, which stated:
1. You are instructed that a member (owner) of a
Kentucky limited liability company means a person who
has been admitted to membership as set forth within the
limited liability company’s operating agreement or, if an
operating agreement does not so provide in writing, upon
the written consent of all members. (KRS 275.015(13)
and KRS 275.275).
INTERROGATORY NO. I: From the evidence at the
trial of this action, on February 22, 2006, was Tate
Begley the owner of a 25% interest in Caribou Coal,
LLC?
As we have held that the ownership of a limited liability company interest is not
synonymous with being a member in an LLC, the trial court did not err by failing
to instruct on whether Begley had been admitted to membership in Caribou.
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CONCLUSION
For the foregoing reasons the Leslie Circuit Court’s judgment is
affirmed.
ACREE, JUDGE, CONCURS.
HENRY, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
HENRY, SENIOR JUDGE, DISSENTING: Because as a matter of
law Robert Griffin did not transfer an ownership interest in Caribou Coal
Processing, LLC, to Tate Begley, leaving Begley with no possessory interest in the
LLC to transfer to Ben Spurlock, I respectfully dissent.
Following the presentation of the evidence, the case was submitted to
the jury on a single Interrogatory asking as follows:
Do you believe from the evidence heard in this case that
Robert Griffith [sic] transferred to Tate Begley a 25%
ownership interest in the company, Caribou Coal
Processing, LLC.
Though the jury (without guidance concerning what was required to
transfer an LLC interest) answered this technical question in the affirmative, as a
matter of law Griffin did not transfer a 25% interest in Caribou Coal to Begley.
As noted by the majority, in the light most favorable to Begley, the
relevant facts upon the issue of whether Begley received an ownership interest in
Caribou upon the oral commitment of Griffin are as follows: (1) Griffin did orally
state at the Manchester meeting that Begley was being given a 25 percent interest
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in Caribou; (2) Spurlock was aware of this; (3) Griffin was a 75 percent owner and
Up the Creek was a 25 percent owner in Caribou at the time of the Manchester
meeting; (4) Griffin and Up the Creek (through Spurlock, Griffin, Hamilton, and
Woods as its agents) unanimously agreed that Begley would receive a 25 percent
interest in Caribou; (5) no documentation or paperwork was ever completed
memorializing the transfer of a 25 percent interest in Caribou to Begley; (6) Begley
believed he had a 25 percent interest in Caribou; and (7) Spurlock believed Begley
had a 25 percent interest in Caribou
Caribou Coal Processing, LLC, was a limited liability company. Such
companies are creatures of statute, and their organizational and operating
parameters are extensively codified in Kentucky Revised Statutes (KRS) Chapter
275. Among the parameters codified are provisions relating to the ownership of an
LLC.
KRS Chapter 275 does not refer to the “owners” of a limited liability
company as “owners” (or by other possible terms such as “partners,”
“shareholders,” or “associates”). Rather, the equity owners of a limited liability
company are referred to as “members.” KRS 275.015(16) defines a member as
follows: “‘Member’ or ‘members’ means a person or persons who have been
admitted to membership in a limited liability company as provided in KRS 275.275
and who have not ceased to be members as provided in KRS 275.280[.]”
KRS 275.275, which is titled “Admission to Membership in
Company,” provides as follows:
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(1) Subject to subsection (2) of this section, a person
may become a member in a limited liability company:
(a) In the case of the person acquiring a limited liability
company interest directly from a limited liability
company, upon compliance with an operating agreement
or, if an operating agreement does not so provide in
writing, upon the written consent of all members; and
(b) In the case of an assignee of the limited liability
company interest, as provided in KRS 275.255 and
275.265.
(2) The effective time of admission of a member to a
limited liability company shall be the later of:
(a) The date the limited liability company is formed; or
(b) The time provided in the operating agreement or, if
no time is provided, when the person's admission is
reflected in the records of the limited liability company.
No evidence was presented concerning Caribou’s operating agreement
or whether it even had one. Thus the terms of the operating agreement – if there
was one – can be of no assistance to Begley, and Begley’s admission as a member
could only have been “upon the written consent of all members.” KRS
275.275(1)(a). While I accept for purposes of review that the necessary oral
approvals for the admission of Begley as a member were given, no evidence was
presented at trial that there was “written consent” by Griffin and Up the Creek
agreeing to the transaction, nor does Begley even now allege that there was such
written consent. As such, there was a failure of proof that Begley was admitted as
a member, that is, an owner, of Caribou under KRS 275.275(1)(a).
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As an alternative to the foregoing, KRS 275.275(1)(b) provides a
pathway to membership in a limited liability company by way of assignment. KRS
275.255 is titled “Assignment of Interest.” This statute explains the effect of an
assignment and makes clear that a mere assignee is not a member. The statute
states, in part, as follows:
(1) Unless otherwise provided in a written operating
agreement:
(a) A limited liability company interest shall be
assignable in whole or in part;
(b) An assignment shall entitle the assignee to receive, to
the extent assigned, only the distributions to which the
assignor would be entitled;
(c) An assignment of a limited liability company interest
shall not dissolve the limited liability company or entitle
the assignee to participate in the management and affairs
of the limited liability company or to become or exercise
any rights of a member other than the right to receive
distributions pursuant to subsection (1)(b) of this section;
(d) Until the assignee of a limited liability company
interest becomes a member pursuant to KRS 275.265(1),
the assignor shall continue to be a member and to have
the power to exercise any rights of a member, subject to
the members' right to remove the assignor pursuant to
KRS 275.280(1)(c)2.;
(e) Until an assignee of a limited liability company
interest becomes a member, the assignee shall have no
liability as a member solely as a result of the assignment;
and
(f) The assignor of a limited liability company interest
shall not be released from liability as a member solely as
result of the assignment.
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(2) A written operating agreement may provide that a
member's limited liability company interest may be
evidenced by a certificate of limited liability company
interest issued by the limited liability company and may
also provide for the assignment or transfer of any interest
represented by the certificate.
....
KRS 275.265 is captioned “Assignee of an Interest as a Member of the Company,”
and provides how an assignment interest may be converted into a member interest.
The statute states, in part, as follows:
(1) Unless otherwise provided in a written operating
agreement, an assignee of a limited liability company
interest shall become a member only if a majority-ininterest of the members consent. The consent of a
member may be evidenced in any manner specified in
writing in an operating agreement, but in the absence of
specification, consent shall be evidenced by one (1) or
more written instruments, dated and signed by the
requisite members.
......
Even if what occurred at the Manchester meeting could be construed
as first an assignment under KRS 275.255 (presumably out of Griffin’s 75 percent
interest) followed by an attempted conversion under KRS 275.265, because there is
no operating agreement evidencing the contrary, consent to the conversion would
have needed to be “evidenced by one (1) or more written instruments, dated and
signed by the requisite members.” No such written instruments were introduced at
the trial, nor does Begley now allege that such written instruments were executed.
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Thus there is a complete failure of proof upon the issue of whether Begley became
a member of Caribou under this method of admission.
In addition, under either method (by the direct method contained in
KRS 275.275(1)(a) or the assignment method described in KRS 275.275(1)(b)), in
the absence of an operating agreement (as here), the new member’s interest,
pursuant to KRS 275.274(2)(b), would not be effective until “the person's
admission is reflected in the records of the limited liability company.” Again, no
evidence was presented at trial that the records of Caribou were ever adjusted to
reflect Begley’s membership interest, nor does Begley now contend that they were.
Indeed, at trial, Begley testified that Griffin was to have done the paperwork to
reflect his membership into the company, but never did. Accordingly, Begley’s
admission as a member to Caribou was not perfected under KRS 275.275(2)(b).
In summary, upon application of the statutory prerequisites for
admission as a member to a limited liability company contained in KRS Chapter
275, even upon viewing the evidence in the light most favorably to Begley, he did
not obtain a membership interest in Caribou as a result of the events occurring at
the Manchester meeting. While he may have been orally promised this
membership, and though the other members of the company may have orally
acquiesced to it, the terms of Chapter 275 were not complied with so as to
consummate and finalize the interest.
A substantial failure of consideration ordinarily justifies rescission of
a contract. O. P. Link Handle Co. v. Wright, 429 S.W.2d 842, 845 (Ky. 1968).
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While Begley and Spurlock both were originally under the impression that Begley
owned a 25 percent interest in Caribou, because of the statutory deficiencies in
perfecting the interest as discussed above, there was a failure of the principal
consideration Spurlock was to have received under the February 22, 2006,
agreement. Because Begley did not have a perfected 25 percent interest to covey
to Spurlock – which was an explicit term of the agreement – there was, as alleged
by Spurlock, a failure of consideration. As such, he was entitled to a directed
verdict upon his affirmatively pled defense of failure of consideration.
The majority errs in equating the assignment of an LLC interest to a
membership interest. Unlike a membership interest, an assigned LLC interest is,
simply put, not an equity interest in the company, and it is erroneous to treat the
interest as though it were10. In my view it is inaccurate to compare assignees of an
LLC membership interest to stockholders and limited partners, both of whom are
equity owners under established law.
The issue presented to the jury was whether Griffin transferred an
“ownership interest” in Caribou to Begley. As a matter of law, he did not.
Accordingly, Spurlock was entitled to a directed verdict at the conclusion of the
10
Legislative guidance regarding the ownership characteristics of an assignment interest may be
found at KRS 275.310. That statute provides that the excess assets of the company are to be
distributed to members and former members upon the winding up of its affairs. A quintessential
characteristic of an equity owner is that he shares in the distribution of the assets upon the
liquidation of a company. Assignees of a membership interest are not included in the statutory
distribution scheme, which indicates that they were not intended to be equity owners.
-21-
presentation of the evidence. Accordingly I dissent from the majority’s conclusion
to the contrary.
I further believe that the trial court erred in rejecting Spurlock’s
tendered instruction to the jury which would have informed the venire concerning
what is required to transfer an equity interest in a limited liability company.
As previously noted, the case went to the jury upon the bare-bones
interrogatory “[d]o you believe from the evidence heard in this case that Robert
Griffith [sic] transferred to Tate Begley a 25% ownership interest in the company,
Caribou Coal Processing, LLC.” Spurlock had tendered the following instruction
to the trial court:
1. You are instructed that a member (owner) of a
Kentucky limited liability company means a person who
has been admitted to membership as set forth within the
limited liability company’s operating agreement or, if an
operating agreement does not so provide in writing, upon
the written consent of all members. (KRS 275.015(13)
and KRS 275.275).
INTERROGATORY NO. I: From the evidence at the
trial of this action, on February 22, 2006, was Tate
Begley the owner of a 25% interest in Caribou Coal,
LLC?
Given the specialized meaning of the term “owner” in the context of a
limited liability company, I believe the trial court erred by failing to instruct the
jury concerning this specialized terminology. It makes little sense to ask a jury
whether there has been a transfer of an ownership interest in a limited liability
company without informing it about the requirements to transfer such an interest.
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Properly instructed the jury would have, I believe, concluded that there had been
no transfer of an ownership interest from Griffin to Begley.
In summary, the majority erroneously concludes that there had been a
transfer of an ownership interest from Griffin to Begley and, moreover, errs in
concluding that the jury was properly instructed upon the issue. For these reasons,
I respectfully dissent.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John T. Aubrey
Manchester, Kentucky
Phillip Lewis
Hyden, Kentucky
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