•
IN THE SUPERIOR COURT OF GUAM"
TIFFANY WANG individually and ) deriva tively in the name of and on behalf of ) CIVIL CASE NO. CV0252-13 AGORA GUAM LLC , )
Plaintiffs, ) DECISION AND ORDER
VS. ) ) DAVID SU, ALT AMORE 8 INTERNATIONAL LIMITED (aka 9 ALTIMORE) and AGORA GUAM LLC, and DOES I - X inclusive, 10 Defendants. ) I1
12 DAVID SU, ALT AMORE 13 IN T E R N AT IO N AL LIMITED (aka ALTIMORE), 14
15 Counterclaim Plaintiffs, )
16 VS.
17 T IFFANY WANG individually and 18 derivatively in the name of and on behalf of AGORA GUAM LLC , 19
20 Counterclaim Defendants. )
INTRODUCTION 22 This matter came before the Honorable James L. Canto II on Plaintiff Tiffany Wang's 23 motion for appointment of liquidating trustee and sale of as sets as a going conc ern, filed 24 September 27, 2013. Oral arguments were heard on December 16, 2013 . Attorney Daniel J. 25 Berman appeared on behalf of Plaintiff, Attorney George N. Valdez represented Defendants. 26 Having considered the parties ' briefs, oral arguments, and the applicable law, the Court now 27 issues the following Decision and Order. 28
Page 1 of 6 BACKGROUND
In June 2006, Plaintiff Tiffany Wang (hereinafter "Wang") and Defendant David Su (hereinafter "Su "), individually and o n behalf of Altamore International Ltd. (hereinafter
"Altamore"), entered into an agreement (hereinafter "Agreement") where they jointly purchased
5 the Windward Hills Country Club in Yona, Guam (hereinafter , "the Property"). P ursuant to the
6 Agreement, Agora Guam LLC (hereinafter, "Agora") was formed for the purposes of taking
7 title to, holding, and managing the Property. T he two na me d me mbe rs of Agora we re Wa ng
8 and Altamore. At the heart of the dispute are allegations involving the purchase of the Property,
9 breaches o f fi du ci ary duties, acces s t o the financial data of Agora, and management of the
10 Prope rty.
11 O n March 15, 201 3, Plaintiffs filed a complaint against Defendants Su , Altamore,
12 Agora, and Does I-X alleging: (1) Breach of Fiduciary Duty; (2) Fraudulent Concealment; (3)
13 Inspection o f Books and Records and Acco u nt i ng; (4) Appo i nt ment of Liquidating
14 Trustee/Injunctive Relief; (5 ) Unjust E nri chment / Di sgo r gement l At t o mey' s Fees; and (6)
15 Declaratory Relief. (Complaint, 2-6, Mar. 15, 2013).
16 On April 19, 2013, Defendants Su and Altamore filed an answer to the Complaint, a
17 counterclaim, and a demand for jury trial. In the counterclaim, Su and Altamore assert the
18 claims of breach of fiduciary duty, inspection of books, and unjust enrichment against Plaintiff
19 Wan g. (Answer, 5-8, Apr. 19, 2013).
20 On September 27, 2013, Wang filed a motion for appointment of liquidating trustee and
21 sale of assets as a going concern, arguing that, pursuant to the organizational documents as well
22 as the case law precedent affording equitable discretion to the Court in the wi ndi ng up of
23 partnership affairs, Plaintiff is entitled to be appointed as the liquidating trustee to sell assets of
24 the Property. (Mot., 5, Sept. 27, 2013).
25 On October 25, 2013, Defendants Su and Altamore filed an opposition to the motion,
26 arguing: (1) the appointment of a liquidating trustee and the involuntary dissolution of Agora
27 are not authorized under Gu am l aw; (2 ) Agora 's organization do cu ment s prohibit the
28 appointment of a liquidating trustee; (3) the circumstances do not warrant liquidation; (4) more
Page 2 of 6 time for discovery is required to determine the financial state of the Property and to determine
the most appropriate solution to resolve any financial issues. (Opp'n Mot., 3-10, Oct. 2, 2013).
On No v. 1 3 , 2 0 1 3 , W ang fi l ed a repl y. She argues that the financial failure of Agora is
not in material dispute, the organization documents grant management authority to Wang, and that under 18 G C A § 15120(a)(3) o f t he Gu am Limited Liability C ompa ny Ac t allows for
dissolution by court decree when requested by a member who intends to quit. (Reply, 2-8, Nov.
13, 2013).
D IS C U S S IO N
10 1. J urisdic tio n
11 The Court has j u ri sd i ct i o n t o enforce the provisions of the Gu am Limited Liability
12 Co mpany Act , 1 8 GCA § 1 5 1 0 1 et seq. 18 GCA § 15133 (2005).
13 II. Dissolution of a LLC
14 Under Guam law, the dissolution of a limited liability company shall occur upon the 15 occurrence of any of the following events:
16 (1) When the period fixed for the duration of the limited liability company 17 expires. (2) By the unanimous written agreement of all members. 18 (3) Upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member or upon the occurrence of any other event which terminates the 19 continued membership of a member in the limited liability company, unless the 20 business of the limited liability company is continued by the consent of all the remaining members or under a right to continue stated in the articles of 21 organization of the liability company. 22 18 GCA § 15120(a)(1)-(3) (2005).
23 Upon the occurrence of any of these events, the limited liability company shall execute a 24 statement of inte nt to diss olve in the fo rm prescribed by the Depart ment of Re ve nue and 25 Taxation. 18 G C A § 15120(b) (2005). A limited liability company may also be dissolved 26 involuntarily. 18 GCA § 15127 (2005). 27
Page 3 of 6 III. Ag o r a ' s Org a niza tio na l Do c ume nts
Wang argues that Agora's organizational documents permit her to occupy the position of liquidating trustee. Specifically, she asserts: (1) the Agree ment Bet ween Joi nt Investors
Regularizing Thei r Relationships in Contemplation of Purc ha s e and Management of Golf
Co u rse Reso rt i n Gu am (herei naft er "Agreement Regu l ari zi ng Rel at i o nshi ps") grant s Wang t he
right to perfo rm administrative or managerial functions within the business operations in
connection with tasks of her choosing; (Decl. Su, Exhibit "C" at 5, Oct. 25, 2013); a nd (2) Article X o f the Operating Agreement for Ago ra Gu am LL C (hereinafter "Operat i ng
9 Agreement") provides that the winding up of the affairs of the company shall be conducted 10 exclusively by the liquidating trustee (Decl. Su, Exhibit "B" at 17, Oct. 25, 2013). Predicated 11 on the s e two factors, Wang argues she is thus entitled to occupy the position of liquidating
12 trustee. Su and Al t amo re argu e t hat t he co ndi t i o ns fo r a di sso l u t i o n set fo rt h i n t he Operat i ng
13 Agre e me nt have not been me t, and there fore, neither the dissolution of Ago ra no r the
14 appointment of Wang as liquidating trustee is appropriate.
15 Article X of the Operating Agreement, in relevant part, provides as follows:
16 Article X. Dissolution and Termination 17 1. Dissolution. The Company shall continue in effect until dissolved upon the first to occur of the following: 18 (a) t he dea th, expulsion, Bankruptcy, cou rt declaration of incompetence wi th respect to, or dissolution of any Member, unless the Company is continued by 19 the consent of at least a "majority-in-interest" (within the meaning of Rev. 20 proc. 94-46, 1994-2 C.B.
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•
IN THE SUPERIOR COURT OF GUAM"
TIFFANY WANG individually and ) deriva tively in the name of and on behalf of ) CIVIL CASE NO. CV0252-13 AGORA GUAM LLC , )
Plaintiffs, ) DECISION AND ORDER
VS. ) ) DAVID SU, ALT AMORE 8 INTERNATIONAL LIMITED (aka 9 ALTIMORE) and AGORA GUAM LLC, and DOES I - X inclusive, 10 Defendants. ) I1
12 DAVID SU, ALT AMORE 13 IN T E R N AT IO N AL LIMITED (aka ALTIMORE), 14
15 Counterclaim Plaintiffs, )
16 VS.
17 T IFFANY WANG individually and 18 derivatively in the name of and on behalf of AGORA GUAM LLC , 19
20 Counterclaim Defendants. )
INTRODUCTION 22 This matter came before the Honorable James L. Canto II on Plaintiff Tiffany Wang's 23 motion for appointment of liquidating trustee and sale of as sets as a going conc ern, filed 24 September 27, 2013. Oral arguments were heard on December 16, 2013 . Attorney Daniel J. 25 Berman appeared on behalf of Plaintiff, Attorney George N. Valdez represented Defendants. 26 Having considered the parties ' briefs, oral arguments, and the applicable law, the Court now 27 issues the following Decision and Order. 28
Page 1 of 6 BACKGROUND
In June 2006, Plaintiff Tiffany Wang (hereinafter "Wang") and Defendant David Su (hereinafter "Su "), individually and o n behalf of Altamore International Ltd. (hereinafter
"Altamore"), entered into an agreement (hereinafter "Agreement") where they jointly purchased
5 the Windward Hills Country Club in Yona, Guam (hereinafter , "the Property"). P ursuant to the
6 Agreement, Agora Guam LLC (hereinafter, "Agora") was formed for the purposes of taking
7 title to, holding, and managing the Property. T he two na me d me mbe rs of Agora we re Wa ng
8 and Altamore. At the heart of the dispute are allegations involving the purchase of the Property,
9 breaches o f fi du ci ary duties, acces s t o the financial data of Agora, and management of the
10 Prope rty.
11 O n March 15, 201 3, Plaintiffs filed a complaint against Defendants Su , Altamore,
12 Agora, and Does I-X alleging: (1) Breach of Fiduciary Duty; (2) Fraudulent Concealment; (3)
13 Inspection o f Books and Records and Acco u nt i ng; (4) Appo i nt ment of Liquidating
14 Trustee/Injunctive Relief; (5 ) Unjust E nri chment / Di sgo r gement l At t o mey' s Fees; and (6)
15 Declaratory Relief. (Complaint, 2-6, Mar. 15, 2013).
16 On April 19, 2013, Defendants Su and Altamore filed an answer to the Complaint, a
17 counterclaim, and a demand for jury trial. In the counterclaim, Su and Altamore assert the
18 claims of breach of fiduciary duty, inspection of books, and unjust enrichment against Plaintiff
19 Wan g. (Answer, 5-8, Apr. 19, 2013).
20 On September 27, 2013, Wang filed a motion for appointment of liquidating trustee and
21 sale of assets as a going concern, arguing that, pursuant to the organizational documents as well
22 as the case law precedent affording equitable discretion to the Court in the wi ndi ng up of
23 partnership affairs, Plaintiff is entitled to be appointed as the liquidating trustee to sell assets of
24 the Property. (Mot., 5, Sept. 27, 2013).
25 On October 25, 2013, Defendants Su and Altamore filed an opposition to the motion,
26 arguing: (1) the appointment of a liquidating trustee and the involuntary dissolution of Agora
27 are not authorized under Gu am l aw; (2 ) Agora 's organization do cu ment s prohibit the
28 appointment of a liquidating trustee; (3) the circumstances do not warrant liquidation; (4) more
Page 2 of 6 time for discovery is required to determine the financial state of the Property and to determine
the most appropriate solution to resolve any financial issues. (Opp'n Mot., 3-10, Oct. 2, 2013).
On No v. 1 3 , 2 0 1 3 , W ang fi l ed a repl y. She argues that the financial failure of Agora is
not in material dispute, the organization documents grant management authority to Wang, and that under 18 G C A § 15120(a)(3) o f t he Gu am Limited Liability C ompa ny Ac t allows for
dissolution by court decree when requested by a member who intends to quit. (Reply, 2-8, Nov.
13, 2013).
D IS C U S S IO N
10 1. J urisdic tio n
11 The Court has j u ri sd i ct i o n t o enforce the provisions of the Gu am Limited Liability
12 Co mpany Act , 1 8 GCA § 1 5 1 0 1 et seq. 18 GCA § 15133 (2005).
13 II. Dissolution of a LLC
14 Under Guam law, the dissolution of a limited liability company shall occur upon the 15 occurrence of any of the following events:
16 (1) When the period fixed for the duration of the limited liability company 17 expires. (2) By the unanimous written agreement of all members. 18 (3) Upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member or upon the occurrence of any other event which terminates the 19 continued membership of a member in the limited liability company, unless the 20 business of the limited liability company is continued by the consent of all the remaining members or under a right to continue stated in the articles of 21 organization of the liability company. 22 18 GCA § 15120(a)(1)-(3) (2005).
23 Upon the occurrence of any of these events, the limited liability company shall execute a 24 statement of inte nt to diss olve in the fo rm prescribed by the Depart ment of Re ve nue and 25 Taxation. 18 G C A § 15120(b) (2005). A limited liability company may also be dissolved 26 involuntarily. 18 GCA § 15127 (2005). 27
Page 3 of 6 III. Ag o r a ' s Org a niza tio na l Do c ume nts
Wang argues that Agora's organizational documents permit her to occupy the position of liquidating trustee. Specifically, she asserts: (1) the Agree ment Bet ween Joi nt Investors
Regularizing Thei r Relationships in Contemplation of Purc ha s e and Management of Golf
Co u rse Reso rt i n Gu am (herei naft er "Agreement Regu l ari zi ng Rel at i o nshi ps") grant s Wang t he
right to perfo rm administrative or managerial functions within the business operations in
connection with tasks of her choosing; (Decl. Su, Exhibit "C" at 5, Oct. 25, 2013); a nd (2) Article X o f the Operating Agreement for Ago ra Gu am LL C (hereinafter "Operat i ng
9 Agreement") provides that the winding up of the affairs of the company shall be conducted 10 exclusively by the liquidating trustee (Decl. Su, Exhibit "B" at 17, Oct. 25, 2013). Predicated 11 on the s e two factors, Wang argues she is thus entitled to occupy the position of liquidating
12 trustee. Su and Al t amo re argu e t hat t he co ndi t i o ns fo r a di sso l u t i o n set fo rt h i n t he Operat i ng
13 Agre e me nt have not been me t, and there fore, neither the dissolution of Ago ra no r the
14 appointment of Wang as liquidating trustee is appropriate.
15 Article X of the Operating Agreement, in relevant part, provides as follows:
16 Article X. Dissolution and Termination 17 1. Dissolution. The Company shall continue in effect until dissolved upon the first to occur of the following: 18 (a) t he dea th, expulsion, Bankruptcy, cou rt declaration of incompetence wi th respect to, or dissolution of any Member, unless the Company is continued by 19 the consent of at least a "majority-in-interest" (within the meaning of Rev. 20 proc. 94-46, 1994-2 C.B. 688) of the remaining Members within ninety (90) days following, or notice thereof, the occurrence of any such events; 21 (b) the unanimous written consent of Members to dissolve the Company; 22 (c) the entry of a judicial dissolution of the Company under the Act; (d) sale or other disposition of all or substantially all of the Company's assets; 23 and (e) May 1 5 , 2 0 3 6 . 24
25 3. Liquidating Trustee (a) Upon the dissolution of the Company, the affairs of the Company shall be 26 wo u nd up and terminated and the Memb ers shall continue to sha re Net Income, Net Loss, Distributable Cash and other items of the Company during 27 the winding-up period in accordance with the provisions of Articles IV and V 28 hereof. The winding-up of the affairs of the Company and the distribution of
Page 4 of 6 its assets shall be conducted exclusively by the Liquidating Trustee, who is hereby authorized by law for these purposes... (Decl. Su, Exhibit "B" at 17-18, Oct. 25, 2013). Thus, the liquidating trustee begins the winding-up of the affairs and the distribution of
the company's assets upon the dissolution of the company. Id. In this case, Wang has failed to
show the necessary condition to the appointment of a liquidating trustee, that is, the dissolution
of Agora. Wang discusses the financial burdens she has personally suffered while managing
Agora, but this is not a condition of dissolution as set forth under Guam law or the Operating Agreement. Furthermore, this Court is unable to enter a judicial dissolution of Agora without a
unanimous written agreement of a ll members or an event whi ch terminates the continued 10 membership of a member of Agora. See 18 GCA § 15120 (a)(2)-(3) (2005). No evi d ence o f either was ever put before the Court. 12 Moreover, the Cou rt is not convinced by Wang's argument that the Argument 13 Regularizing Relationships entitles her to be appointed as liquidating trustee and conduct a sale 14 of the assets. Paragraph 4 of the Agreement Regularizing Relationships provides that unanimity 15 of decision- making between Su and Wang is required for any decision to dissolve Agora and 16 any decision to sell the assets of Agora or any significant portion thereof. ( Decl. Su, Exhibit 17 "C" at 2-3, Oct. 25, 2013). The Court finds that the plain language of the contract prevents 18 Wang from conducting a sale of all of the assets relating to the Property without Su's approval. 19 See 18 GCA § 871 04 (2005 ) ("The language of a contract is to govern its interpretation, if the 20 language is clear and explicit, and does not involve an absurdity."); Camac ho v . Camacho, 1997 21 Guam 5 ¶ 33 ("[I]n interpreting a clause of a contract to determine the intent of the contracting 22 parties, whenever possible, the express language of the contract should control."). 23 For these reasons , Wang's motion for appointment of liquidating trustee and sa le o f 24 assets as a going concern shall be denied. 25
26 // I
Page 5 of 6 I
CONCLUSION
Based upon the foregoing, Wang's motion for appointment of liquidating trustee and
sale of assets as a going concern is hereby DENIED.
S O O R D E R E D this 2 � day of February, 2014.
13 HON. JAMES L. CANTO II 14 J udg e , S upe rio r Co urt o f Gua m 15
25 SERVICE VIA COURT BOX 26 I acknowledge that a copy of the original hereto was placed in the co : 27
Page 6 of 6