Jasmijn Bol v. Breda, LLC

JASMIJN BOL * NO. 2023-CA-0462

VERSUS *
COURT OF APPEAL
BREDA, LLC *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-03245, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Tiffany Gautier Chase
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On Application for Rehearing

(Court composed of Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Abid Hussain
HUSSAIN LAW LLC
3445 N. Causeway Blvd
Suite 706
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLEE

Michael G. Bagneris
BAGNERIS PIEKSEN & ASSOCIATES, LLC
935 Gravier Street, Suite 2110
Suite 2110
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

REHEARING GRANTED;
TRIAL COURT MARCH 23, 2023
JUDGMENT AFFIRMED
FEBRUARY 28, 2024

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TGC
JCL
DNA

Appellee, Jasmijn Bol (hereinafter “Ms. Bol”), petitions this Court for a

rehearing of our January 31, 2024 decision, reversing the trial court’s March 23,

2023 judgment granting the motion for dissolution filed by Ms. Bol. This Court’s

decision to reverse the trial court was procedural and based on a lack of evidentiary

support in the record that the trial court held a contradictory hearing prior to

granting the motion for dissolution. We grant rehearing based upon newly

provided information.

Facts and Procedural History

The facts are set forth in our original opinion. Bol v. Breda, LLC, 2023-

0462, pp. 1-3 (La.App. 4 Cir. 1/31/24), ___ So.3d ___, 2024 WL 370306 *1-2. On

February 5, 2024, Ms. Bol filed an application for rehearing asserting that the trial

court conducted a contradictory hearing on March 2, 2023. Ms. Bol attached

correspondence from the trial court judge confirming that a contradictory hearing

was held. The correspondence further details that the hearing was held by Zoom

but because the court reporter did not stamp the physical record, it was not

properly reflected. Upon receipt of the application for rehearing, this Court ordered

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supplementation of the record with the transcript from the hearing on the motion

for dissolution. On February 16, 2024, the record was supplemented with the

March 2, 2023 hearing transcript.

Our original opinion reversed the trial court’s judgment finding a procedural

error occurred which necessitated a remand to the trial court to conduct a

contradictory hearing. As a result of the supplementation of the record, we will

now consider the merits of Michael Schexnayder’s (hereinafter “Mr.

Schexnayder”) appeal of the trial court’s March 23, 2023 judgment granting

dissolution of Breda, LLC.

Standard of Review

As stated in our original opinion, we review a trial court’s finding that

judicial dissolution is warranted, because it is not reasonably practicable to carry

on the business, under a manifest error/clearly wrong standard of review. S.

Louisiana Ethanol L.L.C., v. CHS-SLE Land, 2014-0127, p. 20 (La.App. 4 Cir.

2/4/15), 161 So.3d 83, 95.

Discussion

“The formation and operation of limited liability companies in Louisiana is

governed by La. R.S. 12:1301, et seq.” Pocket Billiards & Bar, LLC v. Fast &

Affordable Coll. Student Movers, Inc., 2022-0109, p. 4 (La.App. 4 Cir. 8/10/22),

346 So.3d 399, 402 (quoting In re Cat Island Club, L.L.C., 2011-1557, p. 4

(La.App. 3 Cir. 5/2/12), 94 So.3d 75, 78. “[U]pon dissolution the members [of a

limited liability company] shall wind up the limited liability company’s affairs.

The windup…may be conducted by appointment of one or more liquidators… .”

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La. R.S. 12:1336. After settlement of debts, any remaining assets shall be

distributed in accordance with La. R.S. 12:1337.1

On appeal, Mr. Schexnayder challenges the trial court’s judgment granting

dissolution of Breda, LLC. Mr. Schexnayder argues that there are factual

questions, surrounding the company’s viability and Ms. Bol’s legal right to seek

dissolution, which makes judicial dissolution improper. We will address each issue

in turn.

Viability of the Company

Mr. Schexnayder contends that Breda, LLC remains a viable company

because of its assets, which consists of four rental units. However, the codal

articles do not explicitly outline factors for dissolution and we do not find that Mr.

Schexnayder’s assertion constitutes sufficient grounds to compel the parties to

remain business partners. See S. Louisiana Ethanol L.L.C., 2014-0127, p. 22, 161

So.3d at 96 (Noting that “factors considered for dissolution of a limited liability

company are not delineated… .”); See also Weinmann v. Duhon, 2001-1267, p. 7

1 La. R.S. 12:1337 provides:

A. Upon the winding up of a limited liability company, any assets remaining after
paying or adequately providing for the payment of all debts and liabilities of the
limited liability company, including all costs and expenses of the liquidation and
any and all contingent liabilities of which the members or liquidator has
knowledge, shall be distributed as follows:

(1) Except as provided in the articles of organization or a written operating
agreement, to members or former members in satisfaction of liabilities for
distributions under R.S. 12:1324 or 1325.

(2) Except as provided in the articles of organization or a written operating
agreement, to members and former members, first, for the return of their capital
contributions, and secondly, respecting their membership interests, in the
proportions in which the members share in distributions.

B. In the event that there are contingent liabilities for which provision has been
made as above, the members conducting the dissolution or liquidator shall not be
dismissed until the contingent liabilities and debts have been paid or settled in
full.

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(La.App. 5 Cir. 3/26/02), 818 So.2d 206, 210 (“While the defendants assert that the

dealership is viable and should not be destroyed by dissolution, that will not be the

effect of terminating the company. The dealership is simply an asset owned by the

company and that asset can be sold or otherwise transferred to different ownership

upon dissolution of the limited liability company… .”). Although the company

assets continue to be profitable, that has no bearing on whether judicial dissolution

is warranted. La. R.S. 12:1335, does not require viability as a prerequisite to

judicial dissolution if it is no longer reasonably practicable to carry on the

business. Upon dissolution of Breda, LLC, the rental units may be transferred to

either Ms. Bol or Mr. Schexnayder without diminution of the assets. We therefore

find Mr. Schexnayder’s argument unpersuasive.

Right to Dissolution

Ms. Bol seeks dissolution under two statutes, La. R.S. 12:1334(4) and

12:1335. La. R.S. 12:1334(4) provides:

Except as provided in the articles of organization or a written
operating agreement, a limited liability company is dissolved and its
affairs shall be wound up upon the first to occur of the following:

(4) Entry of a decree of judicial dissolution under R.S. 12:1335.

La. R.S. 12:1335, provides:

On application by or for a member, any court of competent
jurisdiction may decree dissolution of a limited liability company
whenever it is not reasonably practicable to carry on the business in
conformity with the articles of organization or operating agreement.

Mr. Schexnayder avers that the only mechanism by which Ms. Bol can seek

judicial dissolution is through the provisions contained in a limited liability

company’s articles of incorporation or under the terms of an operating agreement.

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La. R.S. 12:1335 provides for dissolution when it is not reasonably

practicable to continue a limited liability company. Although the statute does not

define “reasonably practicable,” we apply and consider the general prevailing

meaning within the context in which the phrase is used and the law as a whole. La.

C.C. arts. 11 and 12. S. Louisiana Ethanol L.L.C., 2014-0127, p. 23, 161 So.3d at

96 (This Court’s agreement with the trial court’s general prevailing meaning of

“reasonably practicable,” which the trial court defined as “capable of being put into

practice or of being done or accomplished; feasible.”). At the hearing, the trial

court astutely noted that the acrimony between the parties created an unattainable

working relationship. The parties disagree about critical financial matters regarding

the company including each party’s financial contribution towards property taxes;

the amount of debt; and delinquent utility bills. Applying a manifest error standard

of review, this Court does not reverse the factual findings of a trial court unless a

reasonable basis does not exist for the trial court's factual determinations and the

trial court's findings are clearly wrong. Waters v. Oliver, 2016-1262, p. 6 (La.App.

4 Cir. 6/22/17), 223 So.3d 37, 43. “When two permissible views of the evidence

exist, the fact finder’s choice cannot be clearly wrong or manifestly erroneous.”

Causey v. New Orleans Reg’l Transit Auth., 2018-0983, p. 6 (La.App. 4 Cir.

3/20/19), 267 So.3d 187, 191 (citation omitted). The trial court made a factual

determination, based upon the evidence presented and determined that the parties’

acrimonious relationship will continue to create disagreements; thus, making

continuation of the business not reasonably practicable. We find no error in the

factual determination of the trial court.

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Conclusion

Based upon the record before this Court, the trial court did not err in

granting Ms. Bol’s motion for dissolution nor is it statutorily required. The

viability of Breda, LLC is not sufficient grounds to prohibit dissolution. Further,

we find that Ms. Bol has the legal right to seek judicial dissolution under La. R.S.

12:1334(4) and La. R.S. 12:1335. Accordingly, we grant rehearing and affirm the

trial court’s March 23, 2023 judgment.

REHEARING GRANTED;
TRIAL COURT MARCH 23, 2023
JUDGMENT AFFIRMED

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