A recent decision by the Louisiana Court of Appeals considered the effect of the seriatim deaths of several members of an LLC and, ultimately, whether an action for judicial dissolution initiated by a member who subsequently passed away could continue. In this instance, the court found that the action for judicial dissolution of the LLC could continue. Schauf v Schauf, No. 51, 919-CA, __ So.3d __, 2018 WL 1937068 (La. App. 2d Cir. Apr. 25, 2018).
Angela Schauf organized the Schauf Family LLC in 2001, keeping 50 percent of the ownership for herself and distributing to each of her four children a 12.5-percent interest. Those four children were Peter, Paul, Mary, and Kathryn. Angela and all of the children executed an operating agreement. The LLC’s only asset was farmland that was leased out. Angela passed away, and her interest in the LLC was divided among the four children, resulting in each of them becoming a 25-percent member. Then, each of Peter and Kathryn passed away, leaving their interests in the LLC to their respective spouses, Jo Ann and Michael.
Thereafter, disagreements arose with respect to the LLC, and each of Jo Ann (assignee of Peter) and Michael (assignee of Kathryn), as well as Mary, an original member, sought to dissolve the LLC, sell its assets, and distribute the proceeds. Paul objected to any dissolution and also rejected the proposal that he buy out the other members. Nonetheless, everyone except Paul voted to dissolve the LLC and appoint Jo Ann as its liquidator.
Thereafter, Paul filed suit, asking for a ruling that the appointment of the liquidator and the vote to dissolve the LLC were null and void. Mary then passed away, and a motion was filed to substitute Jo Ann, Mary’s executrix, in the lawsuit. In turn, the trial court granted Paul’s application for summary judgment, in which the vote to liquidate and the appointment of Jo Ann as the LLC’s liquidator was declared void. Conversely, the defendants’ motion for summary judgment was denied on the basis that they had no authority to dissolve the LLC and liquidate its assets. The defendants filed this appeal.
The court’s opinion begins with a review of the status of the estate of a deceased member under the Louisiana LLC Act. Specifically, the estate does not become a member (absent a contrary provision in either the articles or operating agreement).
Thus, an LLC’s articles of organization or a written operating agreement could, but have not in this case, provide that a person who inherits a decedent member’s interest in the LLC would become a member of the LLC or would have certain rights that are provided only to members.
From there, the court offered some observations as to the status of a decedent member’s estate vis-a-vis the LLC, namely:
The rule treating a decedent member’s legal representative as an assignee of the decedent’s interest may be problematic. As an assignee of the decedent member’s interest, the decedent’s legal representative is entitled only to receive distributions from the LLC as authorized by the LLC’s operating agreement or by the members, to share in the LLC’s profits and losses, and to receive allocations of the LLC’s items of income, gain, loss, deduction, and credit. A decedent member’s legal representative may not become a member of the LLC or exercise any of the rights or powers of a member unless the LLC’s articles of organization or a written operating agreement provides otherwise or the legal representative is admitted as a member of the LLC. Thus, the legal representative of a decedent member may not participate in the management of the LLC, vote on the LLC’s affairs, or inspect the LLC’s records unless the LLC’s articles of organization or an operating agreement specifically accords such management rights to the decedent’s legal representative or the legal representative is admitted as a member of the LLC. Without the right to vote or inspect records, a decedent member’s legal representative will have little ability to protect the interests of the decedent’s estate or heirs with respect to the decedent’s interest in the LLC. Id. at *6–*7.
Still, the court noted that an action for judicial dissolution may be brought by any member on the grounds that it “is not reasonably practicable to carry on the business of the LLC in conformity with its articles of organization and operating agreement.” Id. at *3, quoting La. R. S. 12:1335. The court went on to find that Mary had been a member of the LLC at the time the petition for judicial dissolution was filed, that “[h]er death did not terminate the dissolution process once it had been initiated.” and that JoAnn, as Mary’s executrix, could continue the dissolution action. Id. at *8.
Almost in passing, the court rejected the suggestion that because the articles of organization provided that the LLC would dissolve after 25 years, it could not be dissolved prior to that time.
If this decision is restricted to its facts—namely, an action for judicial dissolution—it is an entirely reasonable outcome. At the time the action for judicial dissolution was filed, three of the four persons having a derivative economic interest in the LLC’s assets no longer wish to be in business together. Likewise, one-half of the members did not want to be in business with the other half. It would be dangerous, however, to extend this decision beyond the context of an action for judicial dissolution. If, in contrast, the suit were to have involved a derivative action or a request to inspect documents by a member who then passes away, different policy concerns focused upon the LLC’s internal management would arise.