It might seem uncontroversial that the members of a limited liability company cannot follow with a personal lawsuit for injuries after their LLC litigates, and loses, claims based on the same issues.
But it took the Business Court a while to get to that conclusion last week, in Lancaster v. Harold K. Jordan and Co., 2014 NCBC 22.
The Plaintiffs were the member-managers of Village Landing, LLC. The LLC had made claims against Harold K. Jordan and Co. in an arbitration asserting that HKJ had misrepresented that it would build condominiums instead of the townhomes called for under the construction contract. It said that this had caused the LLC "great financial harm."
Right before the arbitration began, the member-managers sued HKJ for damages. Then, the LLC lost on those claims in the arbitration. The arbitrator, in his Award, specifically rejected the allegations regarding the townhome/condominium issue.
Nonmutual Collateral Estoppel
The unsuccessful arbitration meant that the LLC member-managers also failed in their Business Court lawsuit, which Judge Jolly dismissed based on collateral estoppel. In reaching that result, he observed that he was "not aware of any North Carolina precedent addressing the attempted use of nonmutual collateral estoppel against nominally different plaintiffs." Op. ¶30.
It could be that you don’t remember the term "nonmutual collateral estoppel" because you went to law school as long ago as I did. But it "prevent[s] a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against a different defendant." Op. ¶30 (quoting Bendet v. Sandoz Pharms. Corp., 308 F.3d 907, 910-11 (8th Cir. 2002)).
So whether nonmutual collateral estoppel applied turned on the question of whether there was an "identity of parties" between the LLC in the arbitration and the member-managers in the Business Court lawsuit. That can be shown by the parties being "in privity," but North Carolina law is that "privity with a corporation is not established solely by one’s position as a corporate officer or shareholder." Op. Par. 34 (relying on Troy Lumber v. Hunt, 251 N.C. 624, 627 (1960).
The LLC Members Had Control Over The Arbitration
The NC Supreme Court recognized, in Thompson v. Lassiter, 246 N.C. 34 (1957), that there is a "well established exception" to the "general rule" that an identity of parties is necessary to prevail on a res judicata defense. Op. ¶¶35-36. (Wait, you sharp eyed readers are thinking: This is a case involving collateral estoppel, not res judicata. Judge Jolly said that "the court notes that res judicata and collateral estoppel are companion doctrines, that traditionally have shared the identity requirement." Op. ¶31).
So, that exception, applicable to both res judicata and collateral estoppel, has four elements:
(a) control of both the original and present lawsuit, (b) a proprietary interest or financial interest in the prior judgment, (c) an interest in the determination of a question of fact or a question of law regarding the same subject matter or transactions and (d) notice of participation.
The first element, control, "is met when a corporation is dominated by a single party or entity or is otherwise the alter ego of that party or entity." Op. Par. 39. Given that the Plaintiffs were the sole member-managers of the LLC, plus their active involvement in the arbitration (by calling eighteen witnesses to testify), Judge Jolly found that the control element was met. It probably did not help that one of the Plaintiffs had testified at the arbitration that the Plaintiffs and the LLC were "one and the same."
The second element, a proprietary interest in the prior judgment, was also met, given that the LLC was "essentially a pass though entity" and the Plaintiffs were "financially intertwined" with the LLC. Op. ¶41.
As for an interest in the determination of questions of fact or law, Judge Jolly wrote that:
At the very core of Plaintiffs’ Claims against HKJ in this matter is the allegation that HKJ either negligently or purposely misled Plaintiffs in constructing "condominiums, rather than townhouses." This was the precise issue that Village Landing litigated extensively against HKJ in the Arbitration Action, an alleged misrepresentation that Plaintiffs’ counsel contended was the proximate cause of millions of dollars in losses. Not only did Plaintiffs have an "interest" in the Arbitrator’s determination on this issue, it was central to their LLC’s entire case against HKJ in the Arbitration Action – as it is in their individual action here.
The notice element was obviously met due to the Plaintiffs’ involvement in the LLC’s arbitration.
What Counts In Collateral Estoppel Is ISSUES, Not Claims
The Plaintiffs argued that their personal claims were "separate and distinct" from the claims pursued by the LLC in arbitration. It didn’t make any difference.
Judge Jolly observed that "our courts have repeatedly held that ‘collateral estoppel precludes the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.’" Op. ¶50 (emphasis in original)(quoting Hailes v. N.C. Ins. Guar. Ass’n, 337 N.C. 329 (1994)).
Since the arbitration had resolved the issue of whether HKJ had misrepresented that it was building townhomes instead of condominiums, the Plaintiffs were foreclosed from pursuing claims based on that issue.
The Remaining Elements For Collateral Estoppel Were Met
Judge Jolly quickly ticked through the remaining elements of collateral estoppel. The issue had been "actually litigated" as it was "clear that litigation of issues in an arbitration action satisfies the ‘actual litigation’ prong of the collateral estoppel doctrine." Op. ¶55. It had been "actually determined" because the Arbitration Award was a reasoned one because it directly discussed and decided the issue of misrepresentation. Op. ¶56. Given its centrality to the Award, it was also "necessary and essential" to the Award. Op. ¶57.
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The easiest takeaway from this case is that LLC members can’t pursue their own personal claims after their LLC has already arbitrated claims resting on those same issues.