Belle-Jar Management, L.L.C. v. Process Techs, L.L.C.

37 So. 3d 487, 2009 La.App. 3 Cir. 1420, 2010 La. App. LEXIS 637
Louisiana Court of Appeal·Decided May 5, 2010·No. 09-1420·Published

Opinion

THIBODEAUX, Chief Judge.

11Process Techs is a Louisiana limited liability company whose members are Kram Management, L.L.C. and Belle-Jar Management, L.L.C. The members agreed to liquidate and dissolve Process Techs, and the parties entered into a liquidation agreement. The Liquidation Agreement established the orderly winding down of Process Techs’ ongoing business operations. Disputes arose during the liquidation regarding several ongoing projects. After reviewing the projects, the judicial liquidator discretionarity distributed the funds. Kram challenged the liquidator’s distributions. The trial court approved the distributions recommended by the liquidator. Kram appealed. For the foregoing reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether the trial court erred:

(1) in finding that Kram failed to exhaust its remedies as provided in the Liquidation Agreement;
(2) in denying Kram’s objection to the proposed distribution of funds that a setoff is due from Belle-Jar for its failure to charge published rates on Job 1888; and,
(3) in finding insufficient evidence to show that Belle-Jar usurped the installation of certain computers as part of Jobs 1865 and 1866.

II.

FACTS AND PROCEDURAL HISTORY

Kram and Belle-Jar agreed to dissolve Process Techs, a company they jointly owned. The parties entered into an Agreement and Plan for Liquidation of Process Techs. The Liquidation Agreement established an orderly process to end l2Process Techs’ business operations. All cash and receivables of the company were divided equally between each member. The Liquidation Agreement provided that Process Techs’ ongoing projects would be assigned to each member, with Process Techs retaining the billing and receivables of those projects. The Agreement also provided that each member would invoice Process Techs at an hourly rate of $45.00 per hour for all labor necessary to complete the project assigned, and Process Techs would retain no less than a twenty percent profit.

Belle-Mar filed a Petition for Judicial Dissolution and Liquidation of Process Techs after it became apparent that the members of the company were unable to implement and complete the voluntary plan of liquidation and dissolution agreed to in the Liquidation Agreement. At that time, the liquidator possessed funds in the amount of $457,628.82, and only Belle-Mar and Kram had pending claims to the funds. Since Kram and Belle-Jar disagreed as to the payment of claims, the liquidator submitted a motion for proposed distribution of funds with the trial court. The motion sought to authorize the liquidator to distribute funds to the members in payment of claims each member had against Process Techs.

Pursuant to the terms of the Liquidation Agreement, Process Solutions, L.L.C., a company owned by Mark, Kelly, the owner of Kram, completed the projects assigned to Kram under the Liquidation Agreement, and Failsafe Controls, L.L.C., a *490 company owned by Kirk Robicheaux, the owner of Belle-Jar, completed the projects assigned to Belle-Jar under the Liquidation Agreement. Failsafe submitted to Process Techs invoices amounting to $52,517.00 for work performed by it, which the liquidator proposed to pay. Process Solutions submitted invoices to Process Techs in the amount of $18,293.77, which the liquidator also proposed to pay. The liquidator, based upon information submitted by the parties, determined that one Isproject assigned to Belle-Jar, Job 1883, failed to meet the twenty percent profit margin required by the Liquidation Agreement and had a deficit of $3,260.75, which was to be offset from any distributions payable to Belle-Jar. The liquidator also determined that four projects assigned to Kram failed to meet the twenty percent profit margin: Jobs 1989, 2022, 2013, and 2005. These jobs resulted in a deficit of $1,022.63, which the liquidator proposed to offset from any distributions payable to Kram. Belle-Jar agreed with the proposed distribution submitted by the liquidator, subject to a correction regarding the profitability it achieved on Job 1883. After reviewing updated information, Belle-Jar agreed that the job costs on the project were $103,231.29 and that the profit on the job was $8,370.24, which resulted in a deficiency of $12,276.02, rather than the offset of $3,260.75 proposed by the liquidator.

Kram opposed the distribution proposed by the liquidator, alleging that additional offsets should be charged against Belle-Jar. The trial court heard Kram’s objections to the proposed distributions. The court approved the distributions recommended by the liquidator and rejected Kram’s opposition to the proposed distributions, with the exception of an increase in the offset to Belle-Jar for Job 1883, an increase that Belle-Jar acknowledged and agreed to prior to the hearing. Kram subsequently filed this devolutive appeal from the trial court’s judgment.

III.

LAW AND DISCUSSION

Standard of Review

We review the trial court’s judgment for manifest error.

[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict |4in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

Alleged Failure to Charge “Published Rates”

Kram argues that the trial court erred in not ruling on Kram’s objection to the proposed distribution based upon Belle-Jar’s failure to charge “published rates” on Jobs 1954 and 1955. The trial court held that this objection was untimely and without merit as Kram failed to exhaust the remedy provided in Section 3.01(d) of the Liquidation Agreement. 1 Specifically, Kram failed to invoke the dispute resolution process regarding designation of a *491 knowledgeable person to set rates and contest disputes involving invoices.

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Belle-Jar Management, L.L.C. v. Process Techs, L.L.C., 37 So. 3d 487, 2009 La.App. 3 Cir. 1420, 2010 La. App. LEXIS 637 (La. Ct. App. 2010).

37 So. 3d 487 (Belle-Jar Management, L.L.C. v. Process Techs, L.L.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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