South Louisiana Ethanol L.L.C. v. CHS-SLE Land

161 So. 3d 83, 2014 La.App. 4 Cir. 0127, 2015 La. App. LEXIS 163, 2015 WL 474369
CourtLouisiana Court of Appeal
DecidedFebruary 4, 2015
DocketNo. 2014-CA-0127
StatusPublished
Cited by7 cases

This text of 161 So. 3d 83 (South Louisiana Ethanol L.L.C. v. CHS-SLE Land) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Louisiana Ethanol L.L.C. v. CHS-SLE Land, 161 So. 3d 83, 2014 La.App. 4 Cir. 0127, 2015 La. App. LEXIS 163, 2015 WL 474369 (La. Ct. App. 2015).

Opinion

TERRI F. LOVE, Judge.

h CHS-SLE Land, LLC (“LLC”) owns a riverfront parcel along the west bank of the Mississippi River, known as Tract E-2. South Louisiana Ethanol, LLC (“SLE”) sued CHS, Inc. (“CHS”) and the LLC, seeking dissolution of the LLC. The trial court granted CHS’ claim for declaratory relief finding CHS acquired and holds lessee rights under a 99-year lease (“1968 Lease”) pertaining to the subject property, and granted SLE’s claim for dissolution of the LLC. We find no error in the trial court’s judgment as CHS acquired lessee rights to Tract E-2 by assignment and the LLC acquired the property subject to the 1968 Lease. We also find no error in the trial court’s judgment which granted CHS’ exceptions of no cause of action for partition and no right of action for partition. Finally, we find no error in the trial court’s granting of judicial dissolution of the LLC as the evidence is sufficient to establish that it is not reasonably practicable to carry on the business of the LLC.

| .FACTUAL AND PROCEDURAL BACKGROUND

CHS is a grains and food cooperative that owns and operates a grain elevator, ship dock, barge unloader, and barge fleet in Myrtle Grove, Plaquemines Parish, Lou[86]*86isiana. Their facility, located along the west bank of the Mississippi River and in operation since 1994, exports grains and other agricultural products aboard deep draft ocean vessels. The main barge fleeting area is along a tract of land known as Tract E-2, which CHS claims it leases under an August 1, 1968 lease with a 99-year term. CHS also fleets its barges from an adjacent tract of land formerly owned by Entergy Corp., f/k/a the Louisiana Power and Light Company (“LP & L Property”). The lease on the LP & L Property had an indefinite term and was susceptible to termination on 90 days’ notice.

In 2006, William Hurst (“Mr. Hurst”), Kennett Stewart (“Mr. Stewart”), and John Paul (“Mr. Paul”) formed SLE to purchase property adjacent to CHS’ Myrtle Grove facility. The SLE property included a partially completed ethanol plant that SLE hoped to bring into commercial production. To actualize SLE’s plans, SLE needed a supply of grain feedstock and access to the riverfront to ship the ethanol the facility produced. In early 2007, SLE began negotiations with CHS to purchase grain for its ethanol plant, and also inquired about subleasing part of Tract E-2 for a riverfront dock. CHS agreed to sell grain to SLE; however, the parties could not reach an agreement on SLE’s plan for a dock. CHS was reluctant to sublease Tract E-2 because it was concerned it would impede CHS’ fleeting operations.

13When CHS learned SLE was in negotiations to purchase the LP & L Property and would be in a position to cancel CHS’ lease on that property with only 90 days’ notice, CHS worked out a compromise with SLE which is memorialized in the April 2007 “Mutual Fleeting Servitudes Agreement” (“MFSA”). The MFSA provided for the two parties to share use of the Mississippi River frontage. Specifically, SLE or its affiliate would purchase the LP & L Property and would make available to CHS the long-term right to fleet CHS’ barges along the property. In return, CHS would permit SLE use of a portion of Tract E-2 so that it could build a dock.

The parties also entered into a grain procurement agreement (“Procurement Agreement”) where SLE would purchase from CHS grain feedstock for its ethanol plant. CHS alleges that the MFSA and the Procurement Agreement were directly linked in that if no feedstock was purchased, the MFSA would terminate and the parties’ rights and positions would return to their original state prior to the agreement. Notably, the MFSA stated:

Whereas, CHS, as successor in interest to Mississippi Grain Elevator, Inc., leases the property [Tract E-2] pursuant to a lease dated as of August 1,1968, which represents approximately one thousand thirty-five (1035) linear feet along the Mississippi River.

Around the same time that the MFSA was executed, SLE also began negotiations with CLL Limited Partnership, Ltd. (“CLL”) to purchase Tract E-2. Pursuant to the 1968 Lease, however, CHS enjoys a right of first refusal on the property and advised CLL that it would match SLE’s offer in an effort to protect its long-term use of Tract E-2 after the 1968 Lease expires. The testimony in the Lrecord indicates that the parties wanted to avoid a bidding war, so CHS and SLE agreed to purchase Tract E-2 together.

In July 2007, CHS and SLE formed a limited liability company to buy and hold Tract E-2. The formation of the LLC was memorialized in a Letter Agreement drafted by attorney Francis J. Lobrano (“Mr. Lobrano”) for his then client SLE, addressed to CHS Vice-President Gary [87]*87Anderson (“Mr. Anderson”). The Letter Agreement was signed by Mr. Stewart and Mr. Anderson as representatives for SLE and CHS. The parties agreed that the LLC would purchase Tract E-2 from CLL, and CHS and SLE would be its only members, each owning a 50% interest in the company. Additionally, the Letter Agreement recognized that Tract E-2 would be used by both CHS and SLE as contemplated in the MFSA. In particular, CHS and SLE would have the right to lease from the LLC portions of Tract E-2 as specified in the MFSA.

Mr. Stewart and Mr. Lobrano, witnesses for SLE, testified at trial that the Letter Agreement was never intended to serve as the LLC’s operating agreement, and no formal operating agreement was ever executed. The trial court ruled that the LLC has no formal operating agreement and that the Letter Agreement is the only document evidencing the business purpose of the LLC.

In August of 2007, the LLC purchased Tract E-2 from CLL for $255,000.00. The Cash Sale states that Tract E-2 was purchased “subject to” and “tak[ing] cognizance of’ the 1968 Lease amongst other encumbrances. Additionally, the Cash Sale provides that the property was purchased subject to “all reservations and | ¿all servitudes, rights-of-way, alienations, encroachments and other matters, whether or not of record.... ”

Thereafter, SLE filed a permit application to build a dock on the upriver portion of Tract E-2. SLE’s manager Mr. Stewart then formed a new company with his wife, TKS Ventures, LLC (“TKS”), and in September 2007, TKS bought the LP & L Property as contemplated in the MFSA.

In October 2007, after CLL sold Tract E-2 to the LLC, CHS made attempts to pay CLL rent for the 2007-2008 period; however, CHS received a letter from CLL that it no longer owned the property. The evidence at trial indicates that after initially acquiring Tract E-2 the LLC did not set up a bank account to receive lease payments. Although CHS did not pay rent on Tract E-2 between 2007 and 2011, CHS offered testimony at trial that this was due to a “clerical oversight.” In 2011, CHS, as a manager of the LLC, opened a bank account in the LLC’s name and deposited into the account rent payments for the missing time period.

By 2008, financing fell through for SLE’s ethanol plant, and SLE filed for bankruptcy in August 2009 which resulted in a plan of liquidation in April of 2011. During the bankruptcy proceedings, SLE sought the court’s approval to sell its interest to a purchaser of SLE’s choosing, which CHS opposed and the bankruptcy court denied.

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Cite This Page — Counsel Stack

Bluebook (online)
161 So. 3d 83, 2014 La.App. 4 Cir. 0127, 2015 La. App. LEXIS 163, 2015 WL 474369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-louisiana-ethanol-llc-v-chs-sle-land-lactapp-2015.