Tschetter v. Berven

2001 SD 11, 621 N.W.2d 372, 2001 S.D. LEXIS 12

• Court: South Dakota Supreme Court
• Decided: January 17, 2001
• Docket: None
• Status: Published

Opinions

SABERS, Justice

[¶ 1.] Marvie and Kim Tschetter, Clarence and Goldie Tschetter (Tschetters) purchased units from Venerts Investment, Inc., James Berven, and William Folkerts (Venerts) in Huron Kitchen LLC, a limited liability company, (Huron LLC) the entity which would construct and own a Country Kitchen restaurant. Tschetters claimed that: 1.) these units constitute securities under South Dakota law, and that: 2.) Venerts breached their duty in failing to assess the suitability of Tschetters for investment in Huron LLC. The trial court denied Tschetters’ motions for summary judgment and granted judgment to Ve-nerts by dismissing Tschetters’ claims as a matter of law. We affirm.

FACTS

[¶2.] In 1994, Venerts entered into an agreement with Country Hospitality Corporation (CHC) to develop several Country Kitchen restaurants over a period of years. Venerts contacted Marvie and Kim Tschet-ter after learning from the architect retained by Country Kitchen that Tschetters were interested in the investment. Ve-nerts contacted Clarence and Goldie, Mar-vie’s parents, after learning from Marvie that they were also interested. Venerts met with Tschetters and provided them a business plan which described the project.

[¶ 3.] After additional meetings with Ve-nerts, Tschetters eventually invested in Huron LLC. Marvie and Kim purchased 6.750 units for $83,750.00, representing one ownership share of a total of eleven in Huron LLC. Clarence and Goldie purchased 13.5 units for $67,500, making them owners of two shares in Huron LLC. An operating agreement was entered into on April 4, 1995 and the Country Kitchen in Huron was opened in the fall of 1995.

[¶ 4.] Several months later, financing difficulties caused Tschetters and others to personally guarantee loans from First Madison Bank to Huron LLC. Nevertheless, the Country Kitchen continued to experience financial difficulties and closed November 1996. After the restaurant closed, First Madison Bank commenced an action against the personal guarantors, including Tschetters, to recover the monies loaned. Tschetters responded with cross-claims against Venerts for negligence and breach of South Dakota’s Uniform Securities Act.

[¶ 5.] Tschetters moved for summary judgment asserting that: 1.) the units in the Huron LLC are “securities” under SDCL 47-31A-401(m); and 2.) Venerts owed a duty to determine the suitability of Tschetters to invest in Huron LLC. The trial court denied both motions. Tschetters appeal. Venerts filed a notice of review of: 3.) the trial court’s decision denying the admissibility of evidence concerning settlement negotiations to prove Tschetters’ role in Huron LLC.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for summary judgment is well-established:

In reviewing a grant or denial of a summary judgment under SDCL 15-6-56, we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.

Kern v. City of Sioux Falls, 1997 SD 19, ¶ 4, 560 N.W.2d 236, 237. “The determination of whether a duty exists is a question of law for the court.” Gilbert v. United Nat. Bank, 436 N.W.2d 23, 27 (S.D.1989). Similarly, “the construction of a statute and its application to the case at hand presents a question of law.” Shevling v. Butte County Bd. of Comm’rs, 1999 SD 88, ¶ 12, 596 N.W.2d 728, 730. “Whether an instrument is a security is a question of law.” Nutek Information Systems, Inc., v. Arizona Corporation Commission, 194 Ariz. 104, 977 P.2d 826, 829 (Ct.App.1998); see also Securities Exchange Commission v. W.J. Howey, Co., 328 U.S. 293, 297, 66 S.Ct. 1100, 90 L.Ed. 1244, 1249 (1946). “We review questions of law de novo.” Hamerly v. City of Lennox Bd. of Adj., 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568.

[¶ 7.] 1. WHETHER THESE UNITS IN HURON LLC ARE SECURITIES UNDER SOUTH DAKOTA’S UNIFORM SECURITIES ACT.

[¶ 8.] This case presents a question of first impression in South Dakota. “We start with the proposition that statutes governing the registration and sale of securities are remedial in nature and are designed to protect the unwary buyer and thus should be liberally construed.” Hofer v. General Discount Corp., 86 S.D. 133, 192 N.W.2d 718, 722 (1971). However, to receive this liberal construction Tschetters must establish that the units they purchased are securities.

[¶ 9.] In South Dakota, “security” is defined as:

any note; stock; treasury stock; bonds; debentures; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificates; preorganization certificate or subscription; transferable shares; investment contracts; voting-trust certificates; certificate of deposit for a security; certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease; viatical settlement; or, in general, any interests or instrument commonly known as a security, or any certificate of interest or participation in, temporary or interim certificate for, receipt for guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. Security does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed sum of money either in a lump sum or periodically for life or some other specified period.

SDCL 47-31A-401. Tschetters contend that the units they purchased in Huron LLC are “investment contracts” and therefore “securities” under SDCL 47-31A 401.¹ South Dakota’s definition of “security” is substantially similar to the definition of “security” in the Securities Act of 1938 and the Securities Exchange Act of 1934. See Securities Act of 1933, 15 USCA 77(b)(1) (1997); Securities Exchange Act of 1934, 15 USCA 78(c)(a)(10) 1997. Therefore, we look to courts interpreting similar provisions for guidance.

[¶ 10.] “We must therefore begin where all analyses of investment contracts start, with Securities & Exchange Commission v. W.J., Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946).”² Williamson v. Tucker, 645 F.2d 404, 417 (5th Cir.1981) cert denied 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). LLC membership interests constitute “securities” if they fulfill the criteria established by the United States Supreme Court in Howey. Keith v. Black Diamond Advisors, Inc., 48 FSupp 2d 326 (S.D.N.Y.1999); KFC Ventures, LLC v. Metaire Medical Equipment Leasing Corp., 2000 WL 726877, *2 (E.D.La.2000). The United States Supreme Court has stated that an “investment contract” is a “ ‘security’ when a person 1.) invests money 2.) in a ‘common enterprise’ and 3.) is led to expect profits solely from the efforts of the pro-motor or a third party.” Nutek, 977 P.2d at 830 (citing Howey, 328 U.S. at 301, 66 S.Ct. at 1100, 90 L.Ed. at 1244.)

[¶ 11.] The critical inquiry is the third prong of the Howey test-whether Tsehet-ters were led to expect profits solely from the efforts of the promotor or a third party. We acknowledge, as other courts have done, that the use of the term “solely” is “not to be taken literally.” Id. “Rather, the third prong is satisfied if ‘the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which effect the failure or success of the enterprise.’ ” Nutek, 977 P.2d at 830; citing SEC v. Glenn W. Turner Enters. Inc., 474 F.2d 476, 482 (9thCir.1973). The United States Supreme Court has also noted the definition of a security “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others in the promise of profits.” Howey, 328 U.S. at 299, 66 S.Ct. at 1103, 90 L.Ed. at 1250.

[¶ 12.] The leading case interpreting the third prong of the Howey test is Williamson v. Tucker, 645 F.2d at 404. Williamson approaches this inquiry by recognizing that substance should take precedence over form. Id. at 422-23. The Williamson court set forth three factors to aid in this determination:

1. an agreement among the parties leaves so little power in the hands of " the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or

2. the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or

3. the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager or the enterprise or otherwise exercise méaningful partnership or venture powers.

Id. at 424. These factors are not all-inclusive, and other considerations may come into play in each case. Id. at n. 5. In addition, we do not isolate these factors but consider them as a whole. Koch v. Hankins, 928 F.2d 1471, 1476-78 (9thCir.1991); Nutek, 977 P.2d at 831.

[¶ 13.] Based on the evidence in the record and South Dakota law, Tschet-ters had substantial rights and powers. South Dakota law vests the members of an LLC with management powers in proportion to their contribution of capital. SDCL 47-34-16. The members have the power to elect the managers of the LLC and set their responsibilities.

[¶ 14.] In addition, the Operating Agreement vested management powers of the Huron LLC in its members, which included Tschetters. These members were given notice of meetings and any member could call a meeting. The day-today decisions were made by two managers who were required to be members of the Huron LLC, and selected by the other members. The Huron LLC maintained and provided access to all records of actions taken by its members. Members could authorize loans on behalf of the company by agreement. The members had the authority to select an attorney to review the legal affairs of the Huron LLC. The members had the right to receive profits and distributions when warranted. The members could authorize incidental expenses within an aggregate of $12,500. The members were empowered to make any other routine actions incidental to the day-to-day activity of Huron LLC. The members were allowed to select officers for the Huron LLC and could remove the accountant with or without cause.

[¶ 15.] The Huron LLC’s operating agreement establishes that substantial power and responsibility was vested in its members. The record also establishes that Mande, acting for all the Tschetters, exercised substantial control over the affairs of Huron LLC. Apparently, Clarence and Goldie acquiesced in relying on Marvie and Kim for information and action. The minutes kept by the Huron LLC show that Tschetters were informed and active in this entity. Tschetters actions on behalf of Huron LLC after the restaurant began to fail shows they were aware of and capable of exercising the powers which they held as members.

[¶ 16.] Tschetters stress the fact that Huron LLC entered into a management agreement with CHC to establish their dependence on the efforts of others. However, our inquiry is the Tschetters role in the Huron LLC. The fact that Huron LLC acquiesced in management powers to CHC is not determinative. The Huron LLC retained the ability to terminate the management contract if the manager failed to perform “any material covenant, agreement, term or provision ... for a period of thirty days.” Apparently, here, the failure to perform exceeded a period of thirty days several times over. The management agreement required CHC to “direct, supervise, manage, and operate the [restaurant in an efficient and economical manner,” “execute a marketing plan to attract guests,” “determine and arrange to contract for all advertising and promotion [ ] deem[ed] necessary and appropriate for the operation of the [r]estaurant.” Apparently, the failure to perform as required caused CHC’s termination. The management agreement does not divest all power from Huron LLC but, instead, provides Tschetters and other members of Huron LLC substantial power and ability to conduct the necessary oversight of the restaurant’s operation.

[¶ 17.] The record fails to establish that this was a situation where the managers were so dominant that the members would be lost without them. See Nutek, 977 P.2d at 833. “The mere choice by a partner to remain passive is not sufficient to create a security interest.” Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240-41 (4thCir.1988). This determination “does not and should not hinge on the particular degree of responsibility assume[d] within the firm, nor does the delegation of membership responsibilities, or the failure to exercise membership powers, ‘diminish the investor’s legal right to a voice in partnership or company matters.’” Keith, 48 FSupp.2d at 334 (quoting Hirsch v. duPont, 396 F.Supp. 1214 (S.D.N.Y.1975)). We acknowledge that the investor asserting that an “investment contract” constitutes a “security” has a “difficult burden to overcome.” Nutek, 977 P.2d at 831.

[¶ 18.] Tschetters have the burden of establishing that their expectation of profits was based on the entrepreneurial efforts of others to establish an “investment contract.” As indicated in one treatise, only in unusual circumstances would a member-managed LLC “be able to argue that they must rely on the entrepreneurial efforts of others rather than on their own management skills.” Carol Goforth, Why Limited Liability Company Membership Interests Should Not Be Treated As Securities and Possible Steps to Encourage This Result, 45 Hasting L.J. 1223, 1275 (1994). This may be especially true when, as here, the investment related to a restaurant, rather than complicated communications systems, as in Nutek. In such an entity, the members retain substantial power over the LLC. Id. “The general framework is essentially antithetical to the notion of member passivity.”

[¶ 19.] We hold that the third prong of the Howey test, as interpreted by Williamson, has not been met. In other words:

1. This agreement did not leave so little power in the hands of the partner as a limited partnership would;

2. The partner or venturer was not so inexperienced and unknowledgeable in the business affairs as to be incapable of intelligently exercising his partnership or venture powers; or

3. The partner was not so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace [him] or otherwise exercise meaningful partnership or venture powers.

[¶ 20.] If an interest in a limited liability company constitutes a “security,” then that entity must comply with our securities law or exempt themselves from the application of those laws. This question can only be addressed on a case-by-case basis. Here, Tschetters did not sustain their burden. These “units” were not “securities” under this law and we affirm issue 1.

[¶ 21.] 2. WHETHER VENERTS HAD A DUTY TO ASSESS THE SUITABILITY OF TSCHETTERS FOR INVESTMENT IN HURON LLC.

[¶ 22.] “[I]t is generally recognized that one who undertakes to provide professional services has a duty to the person for whom the services are performed to use such skill and care ordinarily exercised by others in the same profession.” Limpert v. Bail, 447 N.W.2d 48, 51 (S.D.1989). Tschetters assert that such a duty was created when they filled out a “suitability agreement” which was reviewed by Venerts. If this is the law in this case, the Venerts would be required to “exercise due care in the performance of [their] assumed obligation.” Id.

[¶ 23.] Whether Venerts assumed a duty of care is a question of law. See Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995). This duty “may be defined as an obligation [ ] which the law will give recognition and effect.” Hoekman, v. Nelson, 2000 SD 99, ¶ 8, 614 N.W.2d 821, 823. Tschetters have the burden to prove that such a duty existed. Id. at ¶ 12.

[¶ 24.] The only evidence Tschet-ters offer to support their contention that a duty existed is the “suitability agreement” itself. Examining this document, we find that it did not create a legal duty. This is not a situation where Venerts undertook to perform a contractual duty. See Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 231 (S.D.1994) (Sabers, J., dissenting). It is apparent from examining the “suitability agreement” that it was not a task assigned to Venerts, but, instead, a device to benefit Tschetters by forcing them to think about their investment and at the same time providing assurance to Venerts of their investors’ financial position. This benefit does not alone create a legal duty.

[¶ 25.] The form was completed by Tschetters and individually signed by each. It provided a brief statement of the financial security of Tschetters, and indicated that Tschetters “to the extent [deemed] necessary, [obtained] personal and professional advice from a financial advisor with respect to the risks inherent in this investment.”

[¶ 26.] This “suitability agreement” does not create a legal duty for Venerts. Instead, it focuses responsibility on Tschetters. The best description for this instrument would be a “wake up call” for Tschetters to further consider their investment decision. This instrument did not create a legal duty for Venerts to advise Tschetters about potential risk.

[¶ 27.] We affirm issue 2.³

[¶ 28.] We conclude that the trial court correctly granted summary judgment in favor of Venerts. Therefore, it is not necessary to address issue 3.

[¶ 29.] KONENKAMP and AMUNDSON, Justices, concur. [¶ 30.] MILLER, Chief Justice, and GILBERTSON, Justice, concur in part and dissent in part.

1 . In addition to asserting that the "units” constitute an "investment contract” Tschet-ters also argue that the "units are commonly known as securities” and, therefore, meet the definition of 47-31A-401. However, as recognized by the United States Supreme Court:

We perceive no distinction for present purposes, between an 'investment contract’ and an ‘instrument commonly known as a security.’ In either case, the basic test for distinguishing the transaction from other commercial dealings is ‘whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.’

United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621, 632 (1975).

2 . Tschetters suggest the use of three other tests to make this determination, however, Howey’s common enterprise test is the majority rule and we find it persuasive, especially as interpreted in Williamson. See infra for discussion.

3 . South Dakota’s Uniform Securities Act does not apply as we hold the "units” did not constitute "securities” as defined therein.