Present: All the Justices
F. CARTER FLIPPO, ET AL.
v. Record No. 002183 OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2001
CSC ASSOCIATES III, L.L.C.
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Thomas B. Hoover, Judge
In this appeal, two members of a limited liability
company seek reversal of a trial court's judgment entered in
consolidated cases holding one of the members liable for a
breach of fiduciary duty to the limited liability company,
barring both members from performing as managers of the
company, awarding compensatory and punitive damages, and
imposing sanctions pursuant to Code § 8.01-271.1. Because we
conclude that there was no abuse of discretion by the trial
court and no reversible error in the judgment, we will affirm
that judgment.
I. Facts
T. Frank Flippo owned timberlands in Hanover, Caroline,
King and Queen, and King William Counties. On his death in
1974, these properties were devised to his three children,
Arthur P. Flippo, F. Carter Flippo, and Lucy Flippo Wisely.
Carter Flippo, as executor of the estate, managed the
timberlands. Lucy Flippo Wisely conveyed her interest in the
timberlands to her three children, who held their interests in
the name of CSC Associates, a general partnership. In 1988,
Carter Flippo, Arthur Flippo, and CSC Associates created the
Flippo Land & Timber Company Partnership, to own and operate
the business.
In 1989, the Flippos and CSC Associates discussed
amending the partnership agreement to address issues of
partner withdrawal or death that were not covered in the
existing partnership agreement. A "restated partnership
agreement" was drafted which contained specific provisions
relating to the purchase of a member's shares by the remaining
members upon the death or withdrawal of a member. The
restated partnership agreement eliminated a paragraph
contained in the original partnership agreement allowing a
partner to terminate the partnership unilaterally and receive
an in kind distribution of the partnership's assets. The
restated partnership agreement, drafted by an attorney at the
law firm of McGuire Woods Battle & Boothe L.L.P. (MWBB), was
never executed.
In 1995, the Flippos agreed to permit CSC Associates to
hold its interest in the partnership as a limited liability
company, CSC Associates III, L.L.C. (CSC). Flippo Land &
Timber Company Partnership also was converted to a limited
liability company, Flippo Land & Timber Co., L.L.C (FLTC).
2
CSC, Arthur Flippo, and Carter Flippo were the members of
FLTC. Carter Flippo was named manager of FLTC.
In 1997, Carter and Arthur Flippo considered creating
individual limited liability companies to hold their interests
in FLTC for estate planning purposes. CSC rejected requests
by the Flippos to allow them to hold their interests in FLTC
through limited liability companies. Carter Flippo then
consulted with MWBB regarding other means by which they could
implement their estate planning goals. MWBB advised that
Carter Flippo could resign from FLTC, thereby forcing its
dissolution, or a joint venture could be formed between FLTC
and Flippo Lumber Corporation. Under the second approach,
Carter Flippo, as manager of FLTC, could then transfer its
assets to the joint venture, resulting in the dissolution of
FLTC under the terms of FLTC's Operating Agreement. MWBB
advised the Flippos that limited liability companies could
hold their interests in the new venture and that none of these
actions would require CSC's approval under the Operating
Agreement of FLTC.
The Flippos adopted the joint venture approach suggested
by MWBB, and, in October 1998, Carter Flippo informed CSC by
letter that, as manager of FLTC, he had accepted a proposal
from Flippo Lumber Corporation for FLTC to enter a joint
venture and had conveyed all of FLTC's property to the new
3
venture, Timber Enterprises, L.L.C. (Timber Enterprises). The
letter also informed CSC that FLTC had "dissolved" under
Article 13(a)(ii) of the Operating Agreement because FLTC had
contributed all of its non-cash assets to Timber Enterprises.
CSC was given the option of joining Timber Enterprises if it
agreed to the terms of that venture's Operating Agreement.
As a result of these events, CSC filed a bill of
complaint, individually and derivatively on behalf of FLTC,
against Carter Flippo, Arthur Flippo, FLTC, Flippo Lumber
Corporation, and Timber Enterprises. CSC sought to recover
FLTC's assets, to remove Carter Flippo as manager of FLTC, to
enjoin further efforts to dissolve FLTC or dispose of its
assets, and to recover compensatory and punitive damages for
breach of fiduciary duties by the Flippos. Prior to trial,
Timber Enterprises returned the assets it had received from
FLTC and the company was dissolved, thereby making the claims
against it moot.
The Flippos filed a separate amended bill of complaint
seeking the dissolution of FLTC and distribution of the assets
in kind on three alternative bases: (1) under Code § 13.1-
1047, because it was not reasonably practicable to carry on
the business of FLTC; (2) reformation of Article 13 of the
Operating Agreement based on mutual mistake; and (3)
rescission of the Operating Agreement based on CSC's alleged
4
fraud in the inducement. The Flippos submitted "contingent
resignations" which would be operative should the trial court
grant them relief by determining that Article 13 allowed a
member to resign under that Article and receive an in kind
distribution of the member's share of the assets. CSC filed a
motion for sanctions on the basis that the allegations of
mutual mistake of fact and fraud in Counts Two and Three of
the Flippos' amended bill of complaint were not well grounded
in fact or warranted by existing law or a good faith argument
for the extension, modification, or reversal of the existing
law.
The two suits were consolidated by agreement and an ore
tenus hearing was held. In CSC's suit, the trial court held
that Carter Flippo, assisted by Arthur Flippo, breached his
fiduciary duties to and violated the Operating Agreement of
FLTC in forming Timber Enterprises and in transferring FLTC's
assets to that company. The trial court awarded CSC its
attorneys' fees of $178,349.02 for prosecuting the action on
behalf of FLTC. Compensatory and punitive damages of
$12,860.64 and $350,000.00, respectively, were awarded against
Carter Flippo. The trial court also prohibited the Flippos
from serving as managers of FLTC and installed CSC in that
capacity.
5
In ruling on the Flippos' amended bill of complaint, the
trial court denied the request for dissolution of FLTC and for
reformation or rescission of the Operating Agreement.
Accordingly, the trial court also rejected the Flippos'
"contingent resignations." Finally, the trial court granted
CSC's motion for sanctions, awarding an additional $9,166.75
in attorneys' fees. The Flippos assign error to the trial
court's determinations in both suits.
II. CSC's Suit
The Flippos assign error to the trial court's failure to
afford Carter Flippo protection from liability for a breach of
fiduciary duty pursuant to Code § 13.1-1024.1(B), to the award
of punitive damages against Carter Flippo, to the removal of
Carter and Arthur Flippo as managers, and to the designation
of CSC as manager of FLTC.
A. Breach of Fiduciary Duty
The Flippos assert in their first three assignments of
error that the trial court erred in failing to afford Carter
Flippo the defense from liability contained in subsection (B)
of Code § 13.1-1024.1 for acts the trial court held breached
Carter Flippo's fiduciary duty to FLTC. 1
1
The Flippos do not challenge the trial court's
determination that Carter Flippo's actions in forming Timber
Enterprises and transferring FLTC's assets to that company
constituted a breach of his fiduciary duty to FLTC.
6
Subsection (B) of Code § 13.1-1024.1 provides in
pertinent part:
B. Unless a manager has knowledge or information
concerning the matter in question that makes
reliance unwarranted, a manager is entitled to
rely on information, opinions, reports or
statements, including financial statements and
other financial data, if prepared or presented
by:
. . . .
2. Legal counsel, public accountants, or
other persons as to matters the manager believes,
in good faith, are within the person's
professional or expert competence; . . . .
The Flippos assert that Carter Flippo relied on the legal
advice he received from MWBB when he accepted Flippo Lumber
Corporation's offer for a joint venture, created Timber
Enterprises, and transferred FLTC's assets to the joint
venture. Thus, the Flippos conclude that the trial court
erred in imposing liability on Carter Flippo for a breach of
fiduciary duties for acts taken in reliance on legal advice.
The Flippos apply this Code section out of context.
A manager, like a corporate director, is required to
discharge his duties in accordance with his "good faith
business judgment of the best interests of the limited
liability company." Code § 13.1-1024.1(A); see Code § 13.1-
690(A). By virtually identical language, Code §§ 13.1-
1024.1(B) and 13.1-690(B) afford managers and corporate
7
directors, respectively, protection from liability in the
exercise of that good faith judgment under certain
circumstances. We have held that a corporate director is
entitled to such protection from liability under Code § 13.1-
690(B) only for acts related to the exercise of business
judgment on behalf of the corporation of which he or she was
the director. Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666
(2001). There is no basis to apply a different rule to
managers seeking protection from liability under Code § 13.1-
1024.1(B). In this case, therefore, to come within the
protection of subsection (B) of Code § 13.1-1024.1, the legal
advice which Carter Flippo received and acted upon must have
been advice sought in good faith for the benefit of the
company.
The trial court found that the legal advice sought by
Carter Flippo was not related to the business interests of
FLTC. MWBB was not representing FLTC when it advised Carter
Flippo to transfer the assets of FLTC to Timber Enterprises.
According to the trial court, MWBB was "representing their
long-time clients, Carter Flippo and Arthur Flippo." Not only
was the advice sought, delivered, and implemented for the
personal benefit of the Flippos, Carter Flippo testified at
trial that he thought the advice was not "very good" for FLTC.
8
The Flippos' argument that the advice upon which it acted
involved acts which could "legally" be taken by a manager is
irrelevant to the prerequisite for protection under Code
§ 13.1-1024(B) — whether an act was taken with the intent of
benefiting the company. Furthermore, an act which is
otherwise legal may, nevertheless, breach one's fiduciary
duty. The advice relied and acted upon in this case was given
solely for the purpose of implementing the Flippos' personal
estate planning goals. Even if legal, the action was neither
sought nor taken with the intent of benefiting FLTC and, in
fact, had an adverse impact on the company. Following such
advice cannot be the basis for a defense under subsection (B)
of Code § 13.1-1024.1 to a violation of subsection (A) of that
section.
The Flippos also complain that the trial court erred in
imposing liability on Carter Flippo because MWBB was acting
under a conflict of interest as defined by the Code of
Professional Responsibility applicable to attorneys at the
time. See Former DR 5-105(C). We disagree. Although the
trial court suggested that MWBB had a conflict of interest
because it represented both the Flippos and FLTC, such
conflict did not affect the Flippos' motivation for seeking
the advice, the advice given, and the decision to follow that
advice. Carter Flippo's actions to further his estate
9
planning goals based on advice directed toward that end alone
violated his fiduciary duty. Any conflict of interest under
which MWBB operated was immaterial to Carter Flippo's conduct.
Accordingly, we conclude that the trial court did not err
in denying Carter Flippo the protection from liability
afforded by Code § 13.1-1024.1(B).
B. Punitive Damages
The Flippos next assert that the trial court erred in
awarding $350,000 in punitive damages against Carter Flippo
because (1) there was no evidence of Carter Flippo's net
worth, (2) reliance on advice of counsel should be a defense
to punitive damages, and (3) the evidence was insufficient to
show that Carter Flippo acted with malice or wantonness.
First, we reject the Flippos' contention that imposition
of punitive damages was improper because there was no evidence
of Carter Flippo's net worth. The purpose of punitive damages
is to punish the wrongdoer and warn others. Smith v. Litten,
256 Va. 573, 578, 507 S.E.2d 77, 80 (1998). Evidence of a
party's net worth is admissible because it is material to this
purpose and is relevant to a determination of the size of the
award and whether it is so large as to be destructive. Id.;
The Gazette, Inc. v. Harris, 229 Va. 1, 50-51, 325 S.E.2d 713,
746-47, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032
(1985). While evidence of net worth is relevant, the
10
appropriate amount of a punitive damage award can be
established by other evidence, and the lack of evidence of the
wrongdoer's net worth does not of itself defeat the punitive
damage award. In this case, the record showed that the
estimated value of the assets of FLTC exceeded nine million
dollars. Carter Flippo's one-third interest in FLTC alone was
sufficient to establish that the punitive damage award of
$350,000 was not destructive.
Next, while some jurisdictions have allowed good faith
reliance on advice of counsel to defeat the imposition of
punitive damages, such reliance generally has been treated
only as an appropriate factor to consider in determining
whether the requisite malice or wantonness needed to impose
punitive damages has been shown. 2 We agree that good faith
reliance on the advice of counsel is relevant, but it is not
an absolute defense to the imposition of punitive damages.
Cf. Pallas v. Zaharopoulos, 219 Va. 751, 755, 250 S.E.2d 357,
2
See, e.g., Stanton v. Astra Pharm. Prods., Inc., 718
F.2d 553, 580 (3d Cir. 1983)("[P]unitive damages may be
awarded 'only after consideration of the act itself, together
with all the circumstances, including the motive of the wrong-
doer, and the relations between the parties.'"); Hamilton
County Bank v. Hinkle Creek Friends Church, 478 N.E.2d 689,
691 (Ind. Ct. App. 1985)("Several other jurisdictions have
held that good faith reliance on the advice of counsel may
prevent imposition of punitive damgages. We agree . . . .
However, such is not an absolute defense." (citations
omitted)).
11
359 (1979) (good faith reliance on legal advice is absolute
defense to charge of malicious prosecution).
Finally, the Flippos argue that the trial court based its
award of compensatory damages on "the implementation of the
Timber Enterprises 'scam'" and, therefore, the punitive damage
award can stand only if Carter Flippo "made the Timber
Enterprises 'scam' a reality 'with malice or wantonness.' "
No such evidence is in the record, the Flippos contend,
because MWBB, not Carter Flippo, conceived the Timber
Enterprises "scam" and Carter Flippo simply followed the legal
advice given by MWBB. Citing Simbeck, Inc. v. Dodd Sisk
Whitlock Corp., 257 Va. 53, 508 S.E.2d 601 (1999), the Flippos
assert that their actions in this case were not shown to be
malicious or wanton, but were a legitimate "hard ball"
response to CSC's refusal to allow the Flippos to transfer
their interests in FLTC to limited liability companies and
realize their estate planning goals.
However, the trial court found that the Flippos "weren't
going [to MWBB] asking for advice as to what is in the best
interest of the LLC, they were asking what was the best way to
break this LLC after the younger members of the organization,
CSC, had not done what they wanted them to do." This action,
as characterized by the trial court, was "secretive,
concealed, dishonest" and "an attempt to steal property worth
12
millions of dollars." Punitive damages were assessed "because
of that clearly dishonest conduct."
In reviewing this decision, we make an independent review
of the record to determine whether it supports a finding of
actual malice or wantonness by clear and convincing evidence.
Williams v. Garraghty, 249 Va. 224, 236-37, 455 S.E.2d 209,
217 (1995). The record in this case is clear that the actions
taken by Carter Flippo were in response to CSC's refusal to
agree that the Flippos' interests in FLTC could be held by
limited liability companies. The record is also clear that in
order to realize their estate planning goals, the Flippos did
not want to withdraw their interests from FLTC under Article
10 of the Operating Agreement, but wanted to maintain control
of the timberlands which comprised the assets of FLTC. To
accomplish this objective, the Flippos sought and acted on
advice that resulted in divesting FLTC of the timberlands as
an asset. The Flippos purposely concealed these actions from
CSC; and the new venture, including ownership of the
timberlands by Timber Enterprises, was presented to CSC as a
completed transaction.
The Flippos argue that they did nothing illegal, but
illegality is not the test for punitive damages. Punitive
damages may be awarded if a defendant acted with actual malice
or such willful or wanton recklessness as to evince a
13
conscious disregard for the rights of others. Booth v.
Robertson, 236 Va. 269, 273, 374 S.E.2d 1, 3 (1988). Here,
the Flippos acted in conscious disregard of the interests of
FLTC and CSC. Furthermore, the fact that the scheme was
devised by MWBB does not alter the underlying reason why the
scheme was devised in the first place – the Flippos' desire to
implement their estate planning goals regardless of the
interests of FLTC and CSC and any duties they owed to those
entities.
Accordingly, we conclude that the trial court did not err
in awarding FLTC punitive damages against Carter Flippo.
C. Appointment of CSC as Manager of FLTC
In their sixth and seventh assignments of error, the
Flippos assert that in removing Carter Flippo as manager of
FLTC, disqualifying Arthur Flippo from serving as manager, and
installing CSC as manager, the trial court exceeded its
statutory authority and violated FLTC's Operating Agreement.
CSC asserts that this issue has not been preserved for appeal,
citing Rule 5:25.
The Flippos offer two grounds which they maintain place
this issue properly before us. First, they contend that they
raised the issue of the trial court's lack of authority to
take this action in their demurrer to Count Three of the bill
of complaint. In the demurrer, they asserted that Code
14
§§ 13.1-1024 and -1024.1 do not provide a cause of action for
the disqualification or removal of a member from serving as
the manager of a limited liability company. The trial court
did not rule on the demurrer, but the Flippos assert that they
properly preserved the issue for appeal because they objected
to the final order which "granted the relief the demurrer
challenged as inappropriate." The problem with this
contention, however, is not only that the Flippos never sought
a ruling on their demurrer, but also that the arguments
presented to the trial court on this issue after the filing of
the demurrer indicated that the Flippos abandoned any reliance
on the grounds stated in the demurrer to defeat imposition of
the relief sought by CSC in Count Three.
At trial, counsel for the Flippos did not argue that the
trial court could not remove Carter and Arthur Flippo as
managers. Rather counsel argued that he did not think "a case
has been made" for requiring Carter Flippo to step down as
manager or for dissociation of the Flippos. Counsel suggested
that further restrictions would be appropriate only if the
court were concerned about Carter Flippo's future actions as
manager and advised that restrictions contained in the consent
order entered by the trial court for the duration of the trial
would be appropriate.
15
The Flippos' assertion that the evidence is insufficient
to support CSC's claim admitted the court's authority to grant
the relief sought and challenged only the proof burden of the
party seeking the relief. At no point in oral arguments to
the court, in post trial memoranda, or in objections to the
final order did the Flippos refer to their previously filed
demurrer or raise any objection to the relief sought by CSC in
Count Three based on the trial court's lack of authority to
remove or disqualify the Flippos as managers and to appoint
CSC as manager of FLTC. Thus, we conclude that the mere
filing of a demurrer and objecting to the final order under
the circumstances of this case did not comply with the
requirements of Rule 5:25 that objections must be "stated with
reasonable certainty at the time of the ruling."
The Flippos also argue that these assignments of error
are properly before us because they involve a challenge to the
subject matter jurisdiction of the trial court and, therefore,
can be raised at any time. Again we disagree. In this case,
the trial court concluded that the Flippos had breached their
fiduciary duties to FLTC and violated the Operating Agreement
in doing so. Code § 13.1-1023(C)(1) authorizes a court of
equity to enforce an operating agreement by relief "that the
court in its discretion determines to be fair and
appropriate." The Operating Agreement identified Carter and
16
Arthur Flippo as successive managers and also stated that
"[a]ll Members shall participate in the management of the LLC,
but they shall appoint one Member as a Manager." The trial
court was charged with construing the Operating Agreement and
enforcing it in a "fair and appropriate manner." Whether the
enforcement of the Operating Agreement as construed by the
trial court was "fair and appropriate" is a matter reviewable
on appeal for its correctness, but the initial decision was
fully within the subject matter jurisdiction of the trial
court to consider in the first instance.
Accordingly, for these reasons we conclude that the
issues raised in assignments of error six and seven were not
properly preserved in the trial court, and therefore we do not
consider them here. Rule 5:25.
III. The Flippos' Suit
In their amended bill of complaint, the Flippos' sought
the dissolution of FLTC and in kind distribution of its
assets. In Count One, the Flippos asked that FLTC be
dissolved pursuant to Code § 13.1-1047 because "it is not
reasonably practicable to carry on the business" of FLTC under
the Operating Agreement. In Count Three, the Flippos sought
rescission of the Operating Agreement, alleging that CSC
fraudulently induced the Flippos to agree to the Operating
Agreement by representing that CSC's proposed changes to
17
Article 13 did not materially change the Operating Agreement.
The Flippos allege such changes deprived them of a right to
resign and receive a distribution in kind of their one-third
interest in the assets. The trial court denied the Flippos'
requested relief for dissolution and rescission, finding,
respectively, that there was no evidence that the Operating
Agreement adversely impacted the operation of FLTC's business
and that CSC did not make any misrepresentations regarding the
changes it proposed to Article 13 of the Operating Agreement.
The Flippos have not assigned error to either of these
holdings.
In Count Two of their amended bill of complaint, the
Flippos asserted that "the parties were mutually mistaken as
to the effect of the changes proposed by CSC to Article 13 and
there was no meeting of the minds regarding that provision."
In developing this position at trial, the Flippos presented
evidence which, in their view, showed that provisions in the
previous partnership agreements as well as in Article 13 of
the current Operating Agreement were intended to, and did,
allow a partner or member to resign, force the dissolution of
the entity, and receive the distribution of the entity's
assets in kind. To secure the relief requested under Count
Two, dissolution and distribution in kind, the Flippos
tendered their resignations from FLTC "contingent" on the
18
trial court concluding that dissolution and distribution in
kind were authorized by the Operating Agreement. In response,
CSC maintained that although such rights were included in the
original partnership agreement, neither the restated
partnership agreement nor the subsequent FLTC Operating
Agreement ever contained a right to resign, force dissolution
of the partnership, and receive distribution of partnership
assets in kind.
The trial court found that Article 9 of the original
partnership agreement for the Flippo Land & Timber Company
Partnership specifically allowed a partner to terminate the
partnership and receive a distribution in kind, but the court
rejected the Flippos' contention that similar provisions were
included in the unexecuted restated partnership agreement.
The trial court found that CSC had no expectation that such
rights were included or were supposed to be included in the
restated partnership agreement or in the current Operating
Agreement. Furthermore, the trial court found that the
Flippos had no such expectation either. According to the
trial court, the Flippos instead expected CSC to leave FLTC
and be bound by the provisions of the Operating Agreement,
which would have given the Flippos the right to purchase CSC's
membership share at 85% of its appraised value. Thus, the
trial court found that the only mistake harbored by the
19
Flippos was in the "prediction of things that are going to
happen in the future."
Accordingly, the trial court held that "[t]here was no
mutual mistake of fact or law among the Flippos and CSC
regarding the FLTC Operating Agreement." The Flippos do not
assign error to this holding. Rather, they assert that the
trial court erred in its interpretation of FLTC's Operating
Agreement, specifically that Article 13's reference to Article
9 entitles the remaining members to an opportunity to purchase
the shares of a resigning member.
Article 13 has been characterized as unambiguous by the
Flippos, CSC, and the trial court, although the construction
of the provision varies with the reader. Article 13 states in
relevant part that dissolution of FLTC occurs on "the death,
resignation, bankruptcy, or dissolution of a Member, . . .
unless, within 90 days of such event, the procedures of
Article 9 are followed resulting in an election to continue
the LLC . . . ."
Article 9 provides that on the death of a member, the
remaining members may "elect to purchase" the interest of the
deceased member, or, if such interest is not purchased, a
majority of the remaining members "may elect to continue the
LLC." If the remaining members "do not make either of these
elections," the LLC will be dissolved.
20
The Flippos maintain that the word "election" in Article
13 refers only to the election in Article 9 to "continue the
LLC" and does not include the election procedures in that
Article regarding the right of the remaining members to
purchase the departed member's shares. We disagree with the
Flippos.
In construing contracts, we apply familiar principles.
"The primary goal in the construction of written contracts is
to determine the intent of the contracting parties, and intent
is to be determined from the language employed, surrounding
circumstances, the occasion, and apparent object of the
parties." Christian v. Bullock, 215 Va. 98, 102, 205 S.E.2d
635, 638 (1974).
It is the duty of the court to construe the
contract made between the parties, not to make a
contract for them, and "The polestar for the
construction of a contract is the intention of the
contracting parties as expressed by them in the
words they have used." Ames v. American Nat'l
Bank, 163 Va. 1, 38, 176 S.E. 204, 216. The facts
and circumstances surrounding the parties when they
made the contract, and the purposes for which it
was made, may be taken into consideration as an aid
to the interpretation of the words used, but not to
put a construction on the words the parties have
used which they do not properly bear. "It is the
court's duty to declare what the instrument itself
says it says." 163 Va. at 38, 176 S.E. at 216.
Seaboard Air Line R.R. Co. v. Richmond-Petersburg Turnpike
Auth., 202 Va. 1029, 1033, 121 S.E.2d 499, 503 (1961).
21
In applying these principles, we first turn to the
language of the Operating Agreement and then to the
circumstances surrounding its execution. Article 9 refers to
two types of elections, either of which, if followed,
continues the LLC. The language of Article 13 refers to
procedures "resulting in an election to continue the LLC."
Without further limiting language, Article 13 does not
eliminate the purchase election of Article 9. Furthermore, an
interpretation that eliminates the election to purchase a
departed member's share from Article 13 renders the provisions
of that Article in conflict with Article 9. Both Articles
refer to termination of the LLC on a member's death, and
Article 9 unequivocally includes the election to purchase
under such a circumstance.
The facts and circumstances surrounding the execution of
the Operating Agreement and the "apparent object of the
parties" support the above construction. There is no dispute
that FLTC's Operating Agreement was to "mirror" the prior
unexecuted restated partnership agreement. The trial court
concluded that the resignation and in kind distribution rights
sought by the Flippos were not contained in the restated
partnership agreement. Because that agreement served as a
basis for the current Operating Agreement, the absence of
these rights in the Operating Agreement was consistent with
22
CSC's expectations. Thus, CSC's suggestion that a reference
to the procedures of Article 9 be included in Article 13 was
consistent with its position that resignation forcing
distribution in kind was not a part of the restated
partnership agreement. Article 13 already contained a
provision allowing the members to elect to continue the LLC
without purchasing the resigning member's share. Therefore,
there was no need to add the Article 9 reference other than to
bring Article 13 into compliance with CSC's understanding.
Finally, CSC specifically asked the Flippos and MWBB to
review the suggested changes, including those made to Article
13, and inform CSC if any "are not acceptable." Neither the
Flippos nor MWBB raised any question about the changes or
indicated that they were not acceptable in any way.
Under the trial court's construction of Article 13, on
the resignation of a member, FLTC would be dissolved unless
the remaining members elected to continue it by purchasing the
resigning member's shares or electing to continue it without
such purchase by a vote of the remaining members. Whether the
Operating Agreement is considered ambiguous or unambiguous,
under the terms of the agreement and the record regarding the
purpose of the parties and the circumstances surrounding its
execution, the trial court's construction of Article 13 is
23
reasonable and we will affirm that portion of the trial
court's judgment.
IV. Sanctions
CSC filed a motion for sanctions based on the allegations
of mutual mistake and fraud in Counts Two and Three of the
Flippos' amended bill of complaint. The trial court awarded
sanctions pursuant to Code § 8.01-271.1 in the amount of
$9,166.75. The Flippos challenge the award of sanctions,
asserting that the findings of the trial court were
insufficient to support the sanctions and that the Flippos'
theories of recovery were well grounded in fact and in law.
In reviewing a trial court's award of sanctions under
Code § 8.01-271.1, we apply an abuse of discretion standard.
In applying that standard, we use an objective standard of
reasonableness in determining whether a litigant and his
attorney, after reasonable inquiry, could have formed a
reasonable belief that the pleading was well grounded in fact,
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and not
interposed for an improper purpose. Gilmore v. Finn, 259 Va.
448, 466, 527 S.E.2d 426, 435-36 (2000).
The Flippos based their fraud count, Count Three, on a
July 12, 1996 letter from CSC to MWBB and the Flippos. In
that letter, CSC proposed changes to a draft of FLTC's
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Operating Agreement, which it characterized as "housekeeping"
items that had no material effect on the Operating Agreement.
This characterization was a misrepresentation, the Flippos
assert, because the additions were material and not merely
"housekeeping." The trial court granted CSC's motion for
sanctions, concluding that the fraud count was "an unjustified
count," and rejecting the "idea that" CSC could defraud "these
businessmen" who "had the assistance of an extremely
experienced attorney, who was preparing the documents for
their benefit."
An allegation of fraud requires a showing by clear and
convincing evidence of an intentional and knowing
misrepresentation of a material fact, made with the intent to
mislead, and relied upon by another to his or her detriment.
Elliott v. Shore Stop, Inc., 238 Va. 237, 244, 384 S.E.2d 752,
756 (1989). Here, the July 12, 1996 letter sent to MWBB and
the Flippos containing CSC's alleged misrepresentations of
fact stated in pertinent part:
We have had our attorney review the document
and some "oversights" and housekeeping items have
been added (as shown in red). I would hope these
are just housekeeping items and have no material
affect [sic] on the agreement. Please let me know
if any of these are not acceptable.
Applying the objectively reasonable standard recited
above, we conclude that the language of this letter could not
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support a reasonable belief that a pleading alleging fraud was
well grounded in fact or law, regardless of whether the
changes suggested resulted in a material change in the
Operating Agreement. First, the language of the letter, as
CSC argues, states an opinion — the opinion of the writer that
he "hope[s]" the changes are "just housekeeping items" and
"hope[s]" the changes have no material effect. Fraud cannot
be predicated upon the mere expression of an opinion. Tate v.
Colony House Builders, Inc., 257 Va. 78, 82, 508 S.E.2d 597,
599 (1999).
Second, the letter invites MWBB and the Flippos to review
the changes and to raise any objections regarding the changes.
This invitation to consider the impact of the suggested
changes is in direct conflict with the proposition that the
changes were made with an intent to mislead, a prerequisite
for a finding of fraud. As stated by the trial court in
ruling on the merits of Count Three, "[e]verything done by CSC
. . . was above board, highlighted in red, done in writing.
And to try to say that . . . [CSC] could mislead a
sophisticated law firm or sophisticated attorneys who
specialize in this type of work, and that [it] succeeded in
doing that, is ridiculous." Accordingly, we conclude that the
trial court did not err in awarding sanctions pursuant to Code
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§ 8.01-271.1 against the Flippos based on Count Three of their
amended bill of complaint.
We note that the final order recited that sanctions were
imposed for both Counts Two and Three and that $9,166.75 was
incurred "in defending against the fraud and mutual mistake
claims." A review of the record shows, however, that the
amount awarded was designated by CSC's counsel and accepted by
the trial court as the amount of attorneys' fees incurred in
defending only Count Three, the fraud count. Because the
attorneys' fees incurred in defending Count Two were not
identified or separately claimed and the award made did not
include any amounts claimed to have been incurred for defense
of Count Two, we do not address the propriety of sanctions
pursuant to the mutual mistake claim. Oxenham v. Johnson, 241
Va. 281, 290, 402 S.E.2d 1, 6 (1991).
For the above reasons, we will affirm the judgment of the
trial court.
Affirmed.
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