Golden Tee, Inc. v. Venture Golf Schools, Inc.

969 S.W.2d 625, 333 Ark. 253, 1998 Ark. LEXIS 302
CourtSupreme Court of Arkansas
DecidedMay 14, 1998
Docket97-878
StatusPublished
Cited by31 cases

This text of 969 S.W.2d 625 (Golden Tee, Inc. v. Venture Golf Schools, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Golden Tee, Inc. v. Venture Golf Schools, Inc., 969 S.W.2d 625, 333 Ark. 253, 1998 Ark. LEXIS 302 (Ark. 1998).

Opinion

Ray Thornton, Justice.

Appellant Golden Tee, Inc. (Golden Tee), a limited partner in Hot Springs Village Golf School Limited Partnership (Golf Partnership), filed this action for fraud, breach of contract, and breach of fiduciary duty against another limited partner, Cooper Communities, Inc. (Cooper), and against the general partner, Venture Golf Schools, Inc. (Venture). The action was filed as an individual action directed against appellees Venture and Cooper, and was not brought as a derivative action asserting rights on behalf of the Golf Partnership for recovery of alleged damages to the Golf Partnership. The trial court found that Golden Tee could not present proof to show a genuine dispute of material fact required to support essential elements of its claims for fraud, and that Golden Tee lacked standing to bring an action for injuries to the Golf Partnership except as a derivative action, and granted appellees’ motion for summary judgment. Golden Tee appeals, asserting that the trial court erred because issues of material fact remained. We find no error and affirm.

Mr. Roger C. Kluska, who later became President of Golden Tee, was a golf professional who began a dialogue with Mr. Randy Brucker, his next-door neighbor, in early 1992 about the development of a golf school in Hot Springs Village. Mr. Kluska submitted a design for a three-hole golf school, driving range, putting green, clubhouse, and other facilities to Mr. Brucker, who later became President of Venture. Mr. Brucker was a representative of Cooper, and in May, Mr. Kluska was invited to Bella Vista to show his plans for a golf school to the corporate management of Cooper. In late September, Cooper expressed an interest in the project and indicated that if Mr. Kluska would come up with $200,000, for a 25% share in the project, Cooper would put up $800,000 for a 75% share. Mr. Kluska persuaded three other golf professionals to join with him, and in November, informed Cooper that they were ready to go forward with the project. The four golf professionals formed Golden Tee. Venture was also incorporated, and Cooper joined in the formation of the limited Golf Partnership on November 19. In addition to the general partner, Venture, and Golden Tee and Cooper as limited partners, the agreement forming the limited Golf Partnership was signed by the four golf professionals who owned all the shares of stock in Golden Tee.

The Golf Partnership was formed pursuant to the Arkansas Revised Limited Partnership Act of 1991, Ark. Code Ann. § § 4-43-101 to -1206, and specifically provided that all the parties to the agreement consented and agreed to employment agreements between the general partner, Venture, and the four golf professionals; as well as to the leasing and use of Cooper’s property for the Golf Partnership’s business. It was further provided that upon the termination and dissolution of the Golf Partnership, properties leased from Cooper and all leasehold improvements should revert to Cooper. All parties agreed that in the event there should be a negative cash flow produced from operations of Golf Partnership exceeding a cumulative loss of $200,000, Venture had authority to terminate and dissolve the Golf Partnership. The golf school opened for business in the summer of 1993.

Cooper had planned for the contingency that the project might fail by developing an exit strategy involving the donation of the improvements to the Hot Springs Village Property Owners’ Association (POA), and it did not disclose this plan to Golden Tee. Cooper had also prepared some proforma projections of operations over a ten-year period, with estimates of a monthly management fee of $400 and the depreciation of improvements at $10,000 per year. Mr. Kluska had seen these proforma projections at about the time the Golf Partnership was formed.

By October of 1994, the Golf Partnership had sustained a negative cash flow of more than $500,000, and even if the management fees that were charged by Cooper and objected to by Golden Tee are entirely eliminated as an expense, the negative cash flow was $438,582. Mr. Kluska stated that he knew that the Golf Partnership had experienced a negative cash flow in excess of $200,000. Based upon the provisions of the agreement, Venture terminated and dissolved the partnership, and the school closed in November 1994. The real estate and improvements reverted to Cooper, who donated the property, together with other property to the POA for development as a golf course.

After the school closed, Cooper charged the Golf Partnership the present value of future lease payments left on the lease agreement with the Golf Partnership. The total amount due was $376,000, with $94,000 of the liability charged to Golden Tee. This reduced the amount left in Golden Tee’s capital account to $587.

Our standard for reviewing a grant of summary judgment is well settled. The remedy of summary judgment should only be granted if there exists no genuine issue of material fact and the party moving for summary judgment is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Smothers v. Clouette, 326 Ark. 1017, 1020, 934 S.W.2d 923, 925 (1996). We view the issue in the light most favorable to the party opposing the judgment, and the court resolves all inferences and doubts against the moving party. Id. If the party moving for summary judgment makes a prima facie showing that no issues of fact exist, and the non-moving party fails to show that such issues do exist, then the court must affirm the trial court’s grant of a summary judgment. Pyle v. Robertson, 313 Ark. 692, 694, 858 S.W.2d 662, 663 (1993).

The response and supporting material must set forth specific facts showing that there is a genuine issue of fact for trial. Norris v. Bakker, 320 Ark. 629, 632, 899 S.W.2d 70, 71 (1995). Our rules of civil procedure clearly provide that the trial court may only consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any” for purposes of summary judgment. Ark. R. Civ. P. 56(c).

Standing

Our analysis begins with the issue whether the party who is seeking damages has standing. If we conclude that Golden Tee has standing, then we must decide whether Golden Tee has alleged facts upon which relief can be granted.

The Arkansas General Assembly has recognized that a derivative suit may be instituted by a limited partner in certain circumstances. See Ark. Code Ann. § 4-43-1001 (Repl. 1996). Recognizing this possibility, we must distinguish between causes of action that accrue to the Golf Partnership and those that accrue to one or more of the limited partners as individuals. See Edwin W. Hecker, Jr., Limited Partners’ Derivative Suits Under the Revised Uniform Partnership Act, 33 Vanderbilt L. Rev. 343, 355 (1980). The “prevailing criterion is whether the claimed injury is primarily to the partnership and only indirectly to the partners through their interest in the partnership — a partnership claim — or is direct and unique to the partner(s) — an individual claim.” 4 Alan R. Bromberg and Larry E. Ribstein on Partnership § 15.04(f), at 15:31 (1997).

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Bluebook (online)
969 S.W.2d 625, 333 Ark. 253, 1998 Ark. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golden-tee-inc-v-venture-golf-schools-inc-ark-1998.