Sources of Apparent Authority: Tutti Mangia Italian Grill v. Amer. Textile Maintenance Co. (Cal. Ct. App.)

August 24th, 2011

In Tutti Mangia Italian Grill v. Amer. Textile Maintenance Co., No. B227191 (Cal. Ct. App. 7/18/11), one of the issues was whether an agent who signed a contract containing an arbitration agreement was authorized to sign the contract.  The Court held that there was substantial evidence to support a finding of “ostensible” authority:

First, Christian signed the written agreement as the “General Manager” for TMIG, and a general manager generally has the authority to enter into agreements for the corporation. Second, the arbitrator found, based upon testimony at the arbitration hearing, that Christian “was in fact holding himself out as the General Manager and as one authorized to sign.” Accordingly, we affirm the trial court‟s finding that Christian was TMIG‟s ostensible agent, and thus, we conclude that there was a valid arbitration clause that required TMIG to arbitrate this matter.

Slip Op., at 12-13 (citations omitted) (emphasis added).

I know that “California’s a brand new game.” But apparent authority, and the other forms of power to bind by an unauthorized act, generally require some sort of conduct (or possibly negligence) on the part of the principal, and not just assertions by the agent alone.  It even says that in Section 2317 of the California Civil Code:

Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.

So, the the arbitrator, the trial court and the Court of Appeal (Second District, Division 4) all misapplied the law.

But the arbitrator also found some of the facts necessary for a ratification:

There was never any disavowal of said Agreement by [TMIG] who impliedly accepted the benefits of same by operating thereunder.

Slip Op. at 4-5.  The contract was for “the provision of restaurant linens,” id. at 2, so the restaurant presumably took delivery of, and used, the linens.  That’s probably the acceptance of benefits to which the restaurant was not entitled, except under the contract.  The ” no partial ratifications” rule would prevent accepting only part of the contract (the linens), but not the other part (the arbitration agreement). 

That said, the existence of an arbitration clause may be a material fact that might allow the restaurant to “avoid” its implied ratification, if it did not know of the clause.

posted by Gary Rosin

When You’re Alone, You’re Alone: Hillman and Weidner on Partners without Partners

August 19th, 2011

In a partnership at will, unless the partners otherwise agree, the voluntary withdrawal of a partner (a much nicer word than “dissociation”) automatically causes dissolution of the partnership.  RUPA § 801(1).  For partnerships for a definite term or particular undertaking, after the voluntary withdrawal of a partner only results in dissolution of the partnership by the express will of at least half of the remaining partners.  RUPA § 801(2)(i). If the withdrawal of a partner does not result in dissolution of the partnership, the partnership must purchase the interest of the withdrawn partner.  RUPA §§ 603(a), 701(a).

But what if the partnership had only two partners?  does the remaining partner have the right to buyout the other partner? Robert Hillman (Cal-Davis) and Donald Weidner address this question in an article forthcoming in The Fordham Journal of Corporate and Financial Law, Partners without Partners:  The Legal Status of Single Person Partnerships (SSRN, draft dated Aug. 1, 2011).  Prof. Hillman is of the view that, under RUPA § 101(6),  the partnership dissolves by operation of law:

The core of RUPA’s definition is that a partnership is “an association of two or more persons to carry on as co-owners a business for profit.” If one partner leaves, the predicate association of two or more persons no longer exists, which means a partnership is constituted only for the limited purpose of winding up the business. In other words, the partnership that existed prior to the dissociation is no more.

Id. at 3 (footnotes omitted).  Dean Weidner, who was the Reporter for the RUPA, disagrees:

I obviously think you are asking the definition of partnership to do too much by effectively operating as a special dissolution rule whenever partnerships no longer meet the language of the definition. RUPA contains three separate articles on partnership breakups, defining when and how liquidations versus buyouts are to take place. To attach to the definition substantive breakup consequences would create yet another set of dissolution rules and certainly was not considered in the drafting of the RUPA.

* * *

RUPA’s breakup provisions are much more detailed than the UPA on how a departing partner is to be cashed out. * * *

* * * Section 801, by its terms, lists the “only” events that cause dissolution and winding up, and a departure from a term partnership is not on the list. Both Sections 603(a) and 801, therefore, require a buyout in this situation.

Id. at 6-7 (footnotes omitted).

In a recent opinion, the Third Division of the Fourth District of the California Court of Appeals reasoned that, by definition, a partnership requires at least two partners, and ruled that the withdrawal of one partner in a two-partner partnership automatically caused dissolution.  Corrales v. Corrales, G043598 (Cal. Ct. App. Aug. 10, 2011).

In many ways, this conundrum is a self-inflicted wound, in that it is an artifact of the RUPA generally embracing the “entity” concept.  Under the UPA, the withdrawal of a partner automatically dissolved the partnership, and usually gave each partner the right to liquidation.  But, in a partnership for a term or undertaking, UPA § 38(2)(a) gave the other partners the right to continue the business, either alone, or with others.

In any event, the problem of the partner-less partner under the RUPA illustrates how the entity approach can be a snare; you begin to believe that all partnership-related problems can be solved by the ritual invocation of the entity.  Even the RUPA retains aggregate elements, such as liability of the partners. Partnerships and sole proprietorships are the only business forms that can be formed without filing with the state.  The difference between the two has always been the partnerships were aggregates; it takes at least two to partner.  As Bruce Springsteen sang in When You’re Alone:

When you’re alone you’re alone
When you’re alone you ain’t nothing but alone

Hat tip:  Eric C. Chaffee (Dayton), Jay Adkisson.

Gary Rosin

Call for Papers: Taking “Business” Out of Unincorporated Business Organizations

March 23rd, 2011

William Mitchell Law Review has just posted the following Call for Papers.

Call for Articles and Essays
Taking “Business” Out of Unincorporated Business Organizations

The William Mitchell Law Review announces a full issue devoted to the topic of business organizations lacking a business purpose. The issue will focus on the breadth of uses of unincorporated entities, particularly in light of the removal of the “business purpose” requirement from many governing statutes. We are interested in articles and essays that discuss any legal or practical ramifications—including, but not limited to, issues regarding not-for-profit organizations and non-“business” uses.

 In case you are not familiar with the William Mitchell Law Review, here is some background information. The Law Review recently ranked twenty-second nationally in citations by judges and fifty-seventh in citations by other law journals and over the years has published works from five United States Supreme Court Justices (Warren E. Burger (William Mitchell ’31), Harry Blackmun, Sandra Day O’Connor, Lewis Franklin Powell Jr., and Byron White). While the Law Review of course publishes many articles from academics, we also welcome the work of expert practitioners.

 We are committed to timely publication of this issue, and therefore submissions are due by August 1, 2011. For authors with a record of timely submissions to journals, we may be willing to make a publication decision based on an abstract of approximately 500-800 words, submitted by May 1, 2011.

 If you might be interested in writing an article or essay for this issue, please contact the Executive Editor Peter Banick at peter.banick@wmitchell.edu. He will provide more detailed information with respect to submissions, acceptance, and the editorial timeline and process, as well as answer any questions that you may have.

(Emphasis added).  Note that WMLR accepts papers from both academics and practitioners.

posted by Gary Rosin

Call for Papers: AALS Section on Agency, Partnerships, LLCs and Unincorporated Associations

March 16th, 2011

A call for papers of interest to law profs who are interested in UBEs (emphasis in text added):

CALL FOR PAPERS

AALS Section on Agency, Partnerships, LLCs and
Unincorporated Associations

2012 AALS Annual Meeting
Washington, D.C.

The AALS Section on Agency, Partnerships, LLCs and Unincorporated Associations will hold a program during the AALS 2012 Annual Meeting in Washington, D.C. on the subject of Using Unincorporated Business Entities for Non-Business or Non-Profit Purposes. 

Business entities may be created for purposes that do not include, or at least are not limited to, the pursuit of business or profit activities. In such instances, unincorporated business entities may offer advantages over incorporated entities. At the same time, unincorporated entities may create complex issues for the entities’ stakeholders and managers.

 We are soliciting papers on a broad range of issues dealing with the use of unincorporated business entities for non-business or non-profit purposes. Among the topics that might be addressed are:

  •  The extent to which states compete to be the jurisdiction of organization for such non-business entities and whether this competition is socially efficient.
  • The respective roles of federal and state law in these developments.
  • The comparative advantages (or disadvantages) of unincorporated entities over incorporated entities when used for non-business purposes.
  • The emergence of the L3C or similar ‘social benefit’ entities and their utility (or lack thereof).
  • The implications for management, structural and legal concepts (e.g., limited liability, agency principles, fiduciary duties, and the duty of good faith) when an unincorporated business entity is operated for non-business purposes.

 A draft paper or proposal may be submitted via email to: Professor Rutheford B Campbell, Jr. at the following e-mail address: rcampbel@uky.edu (Please note that in the e-mail address there is only one “l” in “rcampbel”).

 Deadline Date for Submission: June 1, 2011. 

There is no requirement as to the form or length of proposals. Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

 Program participants will be responsible for paying their annual meeting registration fee and expenses.

 Papers will be selected after review by the section’s Executive Committee.

The section does not plan to publish the papers in a journal.

 Contact for submission and inquiries:

Professor Rutheford B Campbell, Jr.
University of Kentucky College of Law
rcampbel@uky.edu
Phone: (859)257-4050
FAX: (859)323-1061

posted by Gary Rosin

Doubling Down on Olmstead: Rossignol v. Rossignol (NY App. Div. 2011)

March 7th, 2011

In Court Decision Weds Business Divorce with Matrimonial Divorce, on New York Business Divorce Blog, Peter Mahler reports on Rossignol v. Rossignol, 2011 NY Slip Op 01560 (3d Dept Mar. 3, 2011).  In Rossignol, husband and wife were members of an LLC.  After wife filed for divorce, the court entered a restraining order against the husband preventing him from accessing funds in both their personal and the LLC’s banking accounts.  When husband then brought a separate action for involuntary dissolution of the LLC, the trial court dismissed the action because the proceeding for the divorce and the division of marital property involved the “same parties for the same cause of action.”  The appellate court affirmed, reasoning as follows:

Inasmuch as the husband and wife are the only owners of the LLC, and both are parties to the divorce action, we see no reason why any issues should be left for resolution after equitable distribution of the parties’ property. Given the availability of complete relief pursuant to Domestic Relations Law § 234 and our public policy of resolving equitable distribution within the context of a divorce action, we conclude that dismissal of the second action was within Supreme Court’s broad discretion….

Slip Op., at 3-4 (citations omitted).

Mahler is rightly concerned about the apparent disregard of the difference between the LLC and its members.  After the Florida Supreme Court’s opinion Olmstead v. FTC, expanding the rights of personal creditors of the single-member on an LLC (see Charging Orders and Two Kinds of Exclusivity), the Court in Rossignol at least opens the door to a similar result in marital dissolution actions where the spouses are the sole members of the LLC.

posted by Gary Rosin

EIRLs: France Adopts Limited Liabiity Sole Propreitorship

March 7th, 2011

Last year, France adopted legislation allowing sole proprietors to form an EIRL–”Entrepreneur individuel à responsabilité limitée”.   LOI n° 2010-658 du 15 juin 2010 relative à l’entrepreneur individuel à responsabilité limitée.  From my little-used college French, and the literal Google ® translation, the law requires a public filing of a Declaration of Trust identifying assets–and their values–dedicated to the business, as well as annual reports. 

My correspondent, Tadas Klimas, from Lithuania, also sends along this link to the Google ® translation of a post discussing EIRLs on Themis, “le blog sur la justice, la loi et l’équité” (original post).

For a law establishing a new unincorporated business entity, the EIRL law is astonishingly brief.  The law limits post-filing creditors of the business to declared business assets, but I couldn’t find anything about limiting distributions to, or the rights of personal creditors of, the sole proprietor.

As Grace Potter of Grace Potter and the Nocturnals sings, “If I were from Paris / I would say / Oooh la la la la la la.”

posted by Gary Rosin

American Choppers: The Value of Craftsmanship

December 17th, 2010

The reality show American Choppers involves a custom motorcycle shop and the day-to-day tensions between the founder, and chief owner, and his employees, one of whom is his son.  As it turns out, the son is a 20% owner of the corporation that owns the shop.  After the father fired his son on the air, the network was upset.  To keep American Choppers on the air, father and son signed a letter agreement giving the father

an option to purchase all of [the son's] shares in [the corporation] for fair market value as determined by a procedure to be agreed to by the parties as soon as practicable.

Within a few months, the father attempted to exercise the option.  In its recent opinion in  Teutul v. Teutul, 2010 NY Slip Op 09248 (2d Dept Dec. 14, 2010) (emphasis added), the court rejected the reasoning of the trial court that fair market value was sufficiently definite in the context of a closely held corporation, threw out the agreement as an agreement to agree.  Peter Mahler’s New York Business Divorce blog has excellent discussions of both the trial court and appellate opinions.

Given the timing of the letter agreement, you would think that they hired a lawyer to advise them. Perhaps a transactional lawyer.  Or even a lawyer who specialized in representing the owners of small businesses, and who presumably would be familiar with issues related to buy-sell agreements.  Perhaps they did all of that.  Perhaps the quoted language was as close as father and son could get to reaching an agreement, and they were told that they really did not have an agreement.  Perhaps not. 

In any event, the case illustrates that craftsmanship is as important in drafting agreements among owners of small businesses as it is in manufacturing custom motorcycles.

Gary Rosin

The Joint Venture Fable

June 28th, 2010

Robert Flannigan (Saskatchewan) has an interesting article,  The Joint Venture Fable, 50 Am. J. Legal Hist. 200 (2010)(SSRN).  The article is a survey of, and a commentary on, the development of the concept that “joint ventures” are distinct from partnerships:

It recurrently is assumed that a joint venture is a distinct legal form. That is not a valid assumption. The joint venture claim materialised only aberrantly in the nineteenth century. A remedial distinction within partnership law led to, or was the springboard for, the assertion that the “joint venture” had a legal identity different from every other form of commercial association. That claim was confronted and rejected by most judges and commentators. Others were opposed to equating the joint venture with the partnership, or were hesitant to do so, insisting (or worrying) that there were basic differences. That thin wedge of dissent and hesitation allowed the claim to persist. It did not, however, prosper. Additional arguments offered in justification were easily repelled. Today there remains a stale deadlock between the majority and minority views. The minority claim now appears to be that the joint venture has a legal character that, while largely defined by the law of partnership, differs in certain substantive respects and therefore exists as a distinct form of association. The claim, however, remains fabulous. It is a fabrication or concoction that rightlyhas failed to secure the imprimatur of uniform judicial approbation. There is no historical basis for a distinct law of joint venture.

Id. at 200.

Posted by Gary Rosin

Charging Orders and Two Kinds of Exclusivity

June 27th, 2010

I have already noted Thursday’s opinion of the Florida Supreme Court in Olmstead v. FTC that a statutory charging order is not the exclusive remedy available to creditors of a member of an LLC.  That opinion was in response to a certified question from the U.S. Court of Appeals for 11th Circuit.  Whether you agree, or disagree, with the holding in Olmstead, at least the lawyers, and the 11th-Circuit panel, recognized the existence of the charging order.  The same cannot be said of theat least 11  lawyers and 13 judges involved in the opinions in  Hotel 71 Mezz. Lender LLC v. Falor, 2010, No. 9 (N.Y. Feb. 16, 2010), rev’g 2008 NY Slip Op 09848 (NY AD [1st], December 16, 2008).  In Falor, the sole issue raised on appeal was the jurisdiction of New York courts to apply New York general creditors’ remedies to reach interests in LLCs formed under the laws of other states.  As I’ve discussed earlier, at least the Appellate Division panel recognized, via forum non conveniens, that it might be better to litigate in other states.

So there are two different exclusivity issues that should be addressed by legislatures drafting LLE statutes that include a charging order remedy.   To a large extent, both turn on the same a question:  are charging orders intended to be an integral component of an interest in an LLE, rather than merely a remedy?  If the answer is “yes,” then the local charging order should be exclusive, both locally, and in other states.  If the answer is “n0,” then the only reason to have a charging order at all is as one way to gets courts recognize the difference between ownership interests in corporations, and in LLEs.

The question of how to handle single-member LLCs is a different question.  Unfortunately, neither the Olmsread majority opinion does not do that as clearly as I would like.  That just makes it harder to keep everyone from conflating the two questions.

posted by Gary Rosin

Creditors and SMLLCs. Olmstead v. FTC (Fla. 2010)

June 25th, 2010

In Olmstead v. FTC, SC01-109 (Fla. June 24, 2010), the Supreme Court of Florida ruling that a charging order is not the exclusive remedy available to creditors of a member of an LLC.  In part, the Court relied on differences between the statutory language of the charging order remedy in Florida’s partnership and limited partnership statutes, both of which expressly make charging orders a creditor’s exclusive remedy, and the LLC provision, which does not. Slip Op., at 11-13.

More significant is the Court’s analysis of the assignment and charging order portions of the Florida LLC Act.  The dissent argues that the majority treats the charging order as applying only to single-member LLCs.  Id.at 15-35.  To be sure, the majority opinion is not amodel of clarity. On first read, the Court seems to suggest a difference between the assignment and charging portions of the LLC statute, so that the general creditors’ remedy has a broader reach than the charging order–”all right, title, and interest in the debtor‘s single-member LLC,”  rather than only “rights to profits and distributions.”  Id. at 3-4.

Ultimately, the Court finds no difference in the assignment and charging order provisions.  In the view of the court, while an assignee does not generally does not become a member, except upon the consent “of the remaining members,” id. at 5-7, in the case of a single-member LLC:

The limitation on assignee rights … has no application to the transfer of rights in a single-member LLC. In such an entity, the set of “all members other than the member assigning the interest” is empty. Accordingly, an assignee of the membership interest of the sole member in a single-member LLC becomes a member—and takes the full right, title, and interest of the transferor— without the consent of anyone other than the transferor.

Id. at 9.  To this extent, the majority views the statute as treating all assignments of the entire LLC iunterest of a SMLLCs differently than it treats a similar assignment by one member in a multi-member LLC.  That said, the court views the charging order in the same manner: 

[stating that] a “judgment creditor has only the rights of an assignee of [an LLC] interest” simply acknowledges that a judgment creditor cannot defeat the rights of nondebtor members of an LLC to withhold consent to the transfer of management rights. The provision does not, however, support an interpretation which gives a judgment creditor of the sole owner of an LLC less extensive rights than the rights that are freely assignable by the judgment debtor.

Id. at 10 (emphasis added).

Even though the majority continually phrases the issue as the exclusivity of the charging order in the context of an SMLLC, it views a charging order as having the same effect as an assignment, which is what would happen under the general creditors’ remedy.  The majority then turns to the differing approaches to exclusivity among the charging order provisions of the vrious UBE statutes.

To a certain extent, the problem is further confused by the fact that the LLC charging order follows the “rights of an assignee” approach of the Revised Uniform Limited Partnership Act, rather than the lien approach of the Revised Uniform Partnership Act.  The former seems inherently less nuanced and flexible than the latter.

There has been extensive discussion of this on LNET-LLC, under the thread Olmstead Case Decided.  Prof. Larry Ribstein also discusses Olmstead on Truth on the Market.

Hat tip to Carter Bishop.