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Nicolazzi v. Bone

Court of Appeals of Missouri, Eastern District, Second Division

November 5, 2019

PETER A. NICOLAZZI, Appellant,
v.
LAURA L. BONE, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Bryan L. Hettenbach

          KURT S. ODENWALD, JUDGE.

         Introduction

         Peter A. Nicolazzi ("Nicolazzi") appeals the trial court's judgment in favor of Laura L. Bone ("Bone") on Nicolazzi's declaratory-judgment action challenging Bone's status as a member of the Young in Spirit Adult Daycare, LLC (the "LLC"). Because filing a petition for declaratory judgment to determine LLC member status does not constitute an act of withdrawal under Section 347.123(4)(c), [1] we reverse the judgment of the trial court and remand with instructions to enter judgment consistent with this opinion.

         Factual and Procedural History

         The issue on appeal is purely a question of statutory interpretation. Because this Court previously has reviewed the facts of the case in an earlier opinion, we provide a limited overview of the case's history here.

         Nicolazzi and Bone executed an operating agreement to form the LLC in September 2005. The operating agreement does not contain any provisions regarding withdrawal.

         On June 28, 2011, Nicolazzi filed a petition seeking a declaratory judgment to determine Bone's member status. Nicolazzi alleged in his petition that Bone wrongfully used LLC funds for her own personal use. The petition also sought an accounting of the LLC and a constructive trust. Bone filed a counterclaim alleging breach of contract for failure to make the required capital contribution or to perform management duties, breach of fiduciary confidentiality, and fraudulent misrepresentation.

         The case proceeded to trial. The trial court entered judgment in favor of Bone on November 1, 2017. Among other findings, the trial court found that Bone was the sole remaining member of the LLC and divested Nicolazzi of his interest in the LLC.

         Nicolazzi appealed. This Court affirmed the trial court's judgment except on two issues: whether Nicolazzi breached the operating agreement by attempting to sell his interest in the LLC and whether Nicolazzi withdrew from the LLC. Regarding the latter, this Court found no other actions by Nicolazzi constituted withdrawal under the terms of the operating agreement, including his breaching the operating agreement by failing to make his initial capital contribution, but remanded the case with instructions for the trial court to determine whether Nicolazzi's filing of his petition constituted a statutory "event of withdrawal" pursuant to Section 347.123(4)(c). Nicolazzi v. Bone, 564 S.W.3d 364, 375 (Mo. App. E.D. 2018). On remand, the trial court, with minimal explanation, held that Nicolazzi's filing of his petition did constitute withdrawal from the LLC under Section 347.123(4)(c).[2] Nicolazzi now appeals.

         Points on Appeal

         In his sole point on appeal, Nicolazzi argues that the trial court erred in granting judgment to Bone because it misapplied the law in finding that Nicolazzi's act of filing the petition was an act of withdrawal from the LLC under Section 347.123 (4)(c).

         Standard of Review

         We review questions of statutory interpretation de novo. Ivie v. Smith, 439 S.W.3d 189, 202 (Mo. banc 2014) (internal citation omitted). Accordingly, we "review[] the trial court's determination independently, without deference to that court's conclusions." Pearson v. ...


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