                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0710
                               Filed June 5, 2019


DANIEL FELT and SUSAN KERN,
     Plaintiffs-Appellants,

vs.

DAVID FELT and FELT FARMS LLC,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Bradley McCall,

Judge.



      Plaintiffs challenge whether Felt Farms LLC had any members within ninety

days after Richard Felt’s death. REVERSED AND REMANDED.




      Richard McConville and Michael J. Carroll of Coppola, McConville, Carroll,

Hockenberg & Flynn, P.C., West Des Moines, for appellants.

      Lylea Dodson Critelli and Nicholas Critelli of Critelli Law, P.C., Des Moines,

for appellees.



      Heard by Vogel, C.J., and Mullins and Bower, JJ.
                                           2


BOWER, Judge.

       Daniel Felt and Susan Kern (née Felt) appeal the district court ruling, finding

a limited liability company (LLC) formed by their father, Richard Felt, did not

dissolve following his death. We find the contractual requirements for membership

were not met within ninety days of Richard’s death, and the LLC dissolved as a

matter of law.

       I.        Background Facts & Proceedings

       Richard Felt was a third-generation Dallas County farmer. Richard farmed

with his brother and their father after returning from the Korean War in the 1950s

until their father’s retirement, then the brothers continued farming with each other.

When Richard’s brother retired in the late 1980s, they divided their real estate and

farming property. Richard’s property included approximately one hundred acres

west of Waukee that held the house he grew up in and where he and his wife

Patricia lived. In 1988, Richard and Patricia executed wills leaving all their property

to each other, and then equally to their children upon death of the second spouse.

       Richard and Patricia were the parents of three children: Susan, David, and

Daniel. In 1990, David joined Richard in a joint farming operation. Richard and

Patricia purchased an additional 156-acre farm between Waukee and Adel, which

included a house for David’s family to live in.1 As part of their oral farming operation

agreement, David purchased any new equipment needed and paid for repairs for

the farms and the homes. Approximately ten years after David joined the farming

operation, Daniel asked to join the family business; David told Daniel the farms


1
  David and his wife purchased the house and a surrounding five-acre plot from Richard
and Patricia in 2012.
                                           3


could not support another family at that time. Richard and David continued to farm

together, and Daniel did not ask again to join.

       In the mid-2000s, when Richard mostly retired from farming, Richard and

David entered into an oral lease where David paid cash rent and paid a number of

Richard and Patricia’s bills. Patricia died in 2013. Soon after, Richard was

diagnosed with cancer and underwent treatment from late 2013 until shortly before

his death on November 4, 2015.

       In early 2015, Richard began discussing the creation of a limited liability

company (LLC) with his attorney, Sam Braland. Richard was interested in potential

tax benefits and wanted to keep the farms in the family. Braland had not previously

formed a LLC, so he studied the Iowa LLC statutes and obtained a template of a

farm LLC from the Iowa State Bar Association. He did not consult with an attorney

with more LLC experience. Braland drew up a certificate of organization and an

operating agreement.        On August 28, Richard signed the organizational

documents and operating agreement for a manager-managed LLC named Felt

Farms LLC. Richard transferred all his real property to the LLC in exchange for

ownership of 100 Class A Units (income units) and 900 Class B Units (ownership

and voting units).2 Richard and David were appointed and signed the agreement

as managers of the LLC, and Richard signed separately as its only member.3

Richard did not change his will, which continued to leave his property in equal




2
    At the same time, Richard also transferred two buildings on the farms to David. The
buildings were transferred to David for no consideration due to his extensive remodeling
of the buildings at his own cost to create a storage business.
3
     David testified to knowing he was not a member of the LLC when he signed the
operating agreement as manager.
                                         4


shares to his children. Richard did not tell Daniel or Susan anything about the

LLC.

       Braland also prepared power-of-attorney documents granting David the

authority to make decisions on behalf of Richard. In the months prior to Richard’s

death, David took action as financial power-of-attorney to change several of

Richard’s investments to payable-on-death accounts evenly split among himself

and his siblings.   He also transferred some deposits to the LLC to fund its

operation. Richard died on November 4. After Richard’s death, David used

Richard’s remaining funds to pay funeral and other outstanding expenses, then

split the remainder evenly among himself and his siblings. Richard’s will was not

admitted to probate until September 2017.

       Following Richard’s death, David informed Daniel and Susan the family

properties were in an LLC. In December 2015, Braland wrote to the siblings to

provide them documents relating to Richard’s estate. The letter informed the

siblings,

              With regard to the limited liability company, the three of you
       have succeeded in equal shares to all ownership units of the
       company. I believe it would be prudent for all of us to meet in January
       for the purpose of issuing certificates of ownership to each of you,
       and to briefly discuss the operation of the company, and to answer
       questions you might have.

       The parties did not meet with Braland in January. Effective January 14,

2016, David obtained liability insurance for Felt Farms LLC, which he verified

covered him and his siblings as members on May 4, 2016. The named insured

parties for the farms’ property insurance was changed to Felt Farms LLC and

David superseded Richard effective November 5, 2015.             Susan and Daniel
                                         5


consulted with their own attorney regarding the LLC and its implications during this

period.

       In September 2016, Braland consulted with another attorney with more

experience in LLCs. After learning of the distinction between transferees and

members, David issued equal interests to himself, Susan, and Daniel. On October

18, Daniel and Susan proposed a member-managed LLC or partition of the land.

David did not agree to the proposed changes.

       In December 2016, David wrote checks to himself and his siblings from the

Felt Farms LLC checking account.          David termed the payments as 2016

distributions which consisted of cash rent David had paid the LLC and money in

the account prior to Richard’s death. All three siblings cashed their checks.4 The

LLC provided K-1s to each of the siblings for tax purposes.5 In March 2017, David

unilaterally under his authority as manager arranged for a letter of credit for the

LLC, and signed the documents under his authority as manager of the LLC.

       On February 21, 2017, Daniel and Susan filed suit challenging the creation

of the LLC and some of Richard’s inter vivos transfers under several theories—

including three types of tortious interference and elder abuse—and requesting

declaratory judgment on the status of the LLC. They alleged David exercised

undue influence on Richard and questioned Richard’s mental competence. In

September, Daniel and Susan filed a motion for summary judgment, in part

alleging the LLC had no members within ninety days of Richard’s death. The court


4
  David also wrote checks to each of the siblings in December 2017. Daniel and Susan
had not cashed the checks at the time of trial.
5
  The K-1s have each person checked as a “resident partner,” and on the bottom of the
page the word “Member” is typed in with the sibling’s name.
                                        6


ruled “in the light most favorable to the Defendants,” the LLC had a member, David,

within the ninety day period.

       From February 19 through 23, 2018, the Daniel and Susan’s claims were

tried to the bench with numerous witnesses from each side. In its ruling, the court

dismissed all counts against David and Felt Farms LLC. The court specifically

found David became a Class A member within ninety days of Richard’s death. On

appeal, Daniel and Susan challenge the district court’s interpretation and

construction of the LLC operating agreement and the determination of David’s

membership in the LLC following Richard’s death.

       II.    Standard of Review

       “We generally review the construction and interpretation of a contract as a

matter of law. Thus, we are not bound by the construction or interpretation made

by the trial court.” Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999).

“Contract ‘[i]nterpretation involves ascertaining the meaning of contractual words;

construction refers to deciding their legal effect.’” Payton v. DiGiacomo, 874

N.W.2d 673, 677 (Iowa Ct. App. 2015). The construction of a contract is reviewed

as a question of law for the court. RPC Liquidation v. Iowa Dep’t of Transp., 717

N.W.2d 317, 321 (Iowa 2006). The construction of a contract is controlled by intent

of the parties, which we determine by the language of the contract itself. Iowa R.

App. P. 6.904(3)(n); see Hartig Drug Co., 602 N.W.2d at 797.

       III.   Governing Law

       The governing statutory provisions are found in Iowa’s Revised Uniform

Limited Liability Company Act—Iowa Code chapter 489 (2015). However, the

operating agreement governs the LLC, with the statutory provisions governing
                                           7


where the operating agreement does not otherwise provide.                  Iowa Code

§ 489.110(1)–(2).

       A.     Operating Agreement. The applicable contract here is the LLC’s

operating agreement. The operating agreement establishes Felt Farms as a

manager-managed LLC. Section 2.03 of the agreement separates the ownership

and income rights relating to the LLC. Income rights are vested in the Class A

units of the company.6 One hundred Class A units were issued at formation. Class

B units represent voting and ownership rights. Nine hundred Class B units were

issued at formation. Becoming a unit holder in the company does not admit the

holder to membership in the company. The transfer of Class A units requires

written consent from the manager.         The transfer of Class B units requires

unanimous approval of the Class B members. A non-member unit holder has the

right to receive allocations and distributions relating to the units held but no voting

rights. The operating agreement requires any “person admitted as an additional

or substitute Member shall execute a Joinder Agreement and thereby become a

party to this Agreement” and then obtain the rights, powers, duties, and obligations

of a member.7

       A member is dissociated from the company upon the member’s death.

Death of a member only causes dissolution of the company if it makes the LLC

ineligible to conduct its activities, it becomes unlawful or impossible for the LLC to




6
   However, under the operating agreement the manager has sole discretion to distribute
income to Class A unit holders, Class B unit holders, or any person or entity holding no
units of the company.
7
   The record does not include a joinder agreement signed by any of the siblings.
                                            8


carry on its business, or if the death causes an event requiring dissolution under

the LLC act.

       The operating agreement grants the managers—Richard and David at the

time of formation—the right to independently make any and all decisions relating

to the LLC except for six enumerated actions requiring approval of the members

holding all of the ownership units to the LLC.8 The manager has the sole authority

to buy or sell company assets—including land—borrow money, execute any

contracts relating to the company, distribute funds, and decide “any matter relating

to the activities of the Company.” The manager also has the sole authority to

transfer Class A units, redeem Class A units, admit Class A members, and expel

Class A members.

       B.      Applicable statutory law. The Iowa LLC Act provides a person can

become a member after the LLC has formed when:

       a.     As provided in the operating agreement.
       b.     As the result of a transaction effective under article 10
              [Merger, Conversion, and Domestication].
       c.     With the consent of all the members.
       d.     If, within ninety consecutive days after the company ceases
       to have any members, all of the following occur:
              (1) The last person to have been a member, or the legal
           representative of that person, designates a person to become a
           member.
              (2) The designated person consents to become a member.

Iowa Code § 489.401(4). “A person that becomes a member of a limited liability

company is deemed to assent to the operating agreement.” Id. § 489.111. The




8
   The six actions requiring member approval are reorganization, dissolution, disposition
of all or substantially all assets in a single plan, amendment of the operating agreement,
the transfer of Class B units and admission or expulsion of Class B members, and the
removal and appointment of managers.
                                          9


transfer of a transferable interest—referred to as units in this operating

agreement—does not entitle the transferee to participate in the management or

conduct of the company’s activities or have access to company records, but does

entitle the transferee to receive distributions the transferor would have been

entitled to.    Id. § 489.502(1)–(2).   A member is not required to possess a

transferable interest, and holding a transferable interest does not entitle a

transferee to membership. See id. §§ 489.401(5), .502(7).

       “A limited liability company is dissolved, and its activities must be wound up,

upon the occurrence of the following: Once the company has at least one member,

the passage of ninety consecutive days during which the company has no

members.” Id. § 489.701(1)(c). “A person is dissociated as a member from a

limited liability company when . . . the person dies.” Id. § 489.602(6)(a). “[T]he

company continues after dissolution only for the purpose of winding up.”           Id.

§ 489.702(1).

       IV.      Analysis

       Both the operating agreement and the statutes make clear membership is

not the same as possession of a transferable interest. See id. § 489.401(5). The

parties do not dispute the units transferred equally to David, Daniel, and Susan

upon Richard’s death. See id. § 633.350. As unit holders, each had a right to

allocations and distributions from the LLC.

       The only question before us is whether the LLC had a member in

compliance with the operating agreement within the ninety days following

Richard’s death—between November 4, 2015, and February 2, 2016. Once the
                                        10

ninety days passed, if the LLC had no member it dissolved as a matter of law. See

Iowa Code § 489.701.

      A.     Before Richard’s death. Under the operating agreement, Richard

was the only member upon the formation of the LLC. Richard owned all units of

ownership (B units) and income rights (A units). Richard did not name any of his

children as noneconomic members at the time of formation or any time before his

death. Notwithstanding a provision naming David as “Tax Matters Member,” the

operating agreement expressly lists Richard as the only member in three places:

the preamble, Exhibit A of the agreement listing initial member contributions, and

on the execution page of the agreement. Richard did not transfer any shares to

any of the children or invite his children to be members prior to his death. Nor did

David invite himself and consent to be a Class A member prior to Richard’s death,

despite the authority to do so as manager. Richard was the only member of the

LLC at the time of his death.

      B.     November 5, 2015. The parties do not dispute the units transferred

ownership upon Richard’s death pursuant to Iowa Code section 633.350. The

operating agreement did not include a transfer-on-death provision or any provision

establishing any and all of the children as members upon Richard’s death. The

district court noted Braland could have advised David of the steps to admit and

document the admission of members, including the preparation of a joinder

agreement within the ninety-day period if he had understood the law and the

operating agreement he drafted, and that Braland failed to do so.

      David testified he became Class A member of the LLC upon his father’s

death, accepting himself as a new member. The only change in behavior he could
                                         11


identify with membership was the right to dividends.9 David admitted there is no

documentation of his admission as a member. David’s expert witness testified

David’s continuing management of the LLC constituted acceptance of Class A

membership.

       The district court agreed with David, finding his conduct showed he believed

himself to be a manager and a member of the LLC. The court found this “entirely

consistent with the result intended by Dick when he created the LLC.” The court

also found David did not need to execute a joinder agreement because he was

already a signatory of the operating agreement.

       We find David’s execution of the joinder agreement was necessary to his

membership. The operating agreement expressly requires, “A person admitted as

an additional or substitute Member shall execute a Joinder Agreement and thereby

become a party to this Agreement, and shall have all the rights and powers and be

subject to all the restrictions and obligations of a Member.” (Emphasis added.)

David executed the operating agreement in 2015 as manager, agreeing to take on

and exercise the broad powers and authority of manager for this LLC—including

the express permission to engage in self-dealing and permission to buy, sell, or

mortgage the LLC’s assets as desired.

       Without executing a joinder agreement, David has not contracted to accept

the rights, powers, duties, and obligations of a member in addition to his rights and

obligations as manager. Because of the express nature of the joinder agreement


9
  Not only were the dividends not issued until December 2016, non-member Class A unit
holders have the same right to dividends as Class A members under the operating
agreement. The issuance and acceptance of dividends alone does not evidence
membership in the LLC.
                                         12


requirement, we find it controls over the statutory provision deeming assent to the

operating agreement through membership. Moreover, execution of the joinder

agreement is a tangible method the operating agreement offers for a new member

to show consent to membership given the restricted nature of members’ actions.

       C.     November 13, 2015. When the siblings were working on thank-you

notes following Richard’s funeral, David informed Daniel and Susan that Richard

had placed all his land in an LLC. At that time, David did not offer membership to

Daniel or Susan. It is unclear David was able to explain anything about the effects

of the LLC, though he did say they would not need an executor and the LLC should

minimize expenses.

       In the following weeks, David contacted Braland about steps to move

forward, and they discussed preparing a letter to send information about the LLC

to all three siblings. Susan separately contacted Braland requesting copies of

Richard’s legal documents, including the LLC documents, Richard’s will, and tax

returns.

       D.     December 23, 2015. In response to these requests, Braland sent a

letter to the siblings dated December 23, 2015. The letter informed them:

       [L]astly, I enclose documents in connection with the formation of Felt
       Farms LLC earlier this year. With regard to the limited liability
       company, the three of you have succeeded in equal shares to all
       ownership units of the company. I believe it would be prudent for all
       of us to meet in January for the purpose of issuing certificates of
       ownership to each of you, and to briefly discuss operation of the
       company, and to answer any questions you might have.

The letter enclosed a number of other documents, including a copy of Richard’s

will, living will, medical power of attorney, general power of attorney, recent tax

returns, and a copy of the asset inventory filed as part of Patricia’s estate.
                                        13


      The letter did not mention membership in the LLC—either to offer

membership, indicate membership meant anything, or express he considered

David to already be a member. The letter did not include a joinder agreement for

any of the siblings to sign to become part of the operating agreement as members,

an explanation of any necessary steps they should take, or any other information

or documentation to facilitate continuation of the LLC.

      Although an expert witness testified the letter was meant as an invitation to

membership, the district court disagreed. We find the letter did not constitute an

invitation to membership. Whether Braland intended an invitation does not matter,

as he was not Richard’s legal or personal representative at the time he sent the

letter. No will had been entered in to probate for Richard, and Braland had not

been retained to represent the estate. Braland, even if acting as attorney for the

LLC, was not the legal representative for Richard any longer and did not have the

authority under the operating agreement or statute to extend a membership offer

to David, Daniel, or Susan.

      The district court concluded the December 23 letter “was simply a response

to Susan’s request for copies of paperwork” and that Braland was unaware of the

ninety-day deadline. We find the wording of the letter clearly contemplates the

transfer of the units but does not constitute an offer or acknowledgement of Class

A or Class B membership. In short, the letter had no effect on whether the LLC

had a member within the ninety-day period.

      E.     January 14, 2016. Acting as manager, David obtained a liability

insurance policy with the LLC as the named insured, which was effective as of

January 14, 2016. The declaration page of policy only lists the LLC, it does not
                                          14


include the name of the manager or any members. The declaration page has a

time stamp in the corner with the time “01/15/16 11:03:32,” indicating either the

policy was obtained at that time or the declarations page was printed then.

       On May 4, the insurance agency wrote a letter to David to confirm a

conversation earlier that day explaining members are not listed as named insureds

on the policy because they are automatically covered by being members. The

letter notes, “The members of the LLC that I received are; David Felt[,] Daniel Felt[,]

Susan Kern[.]” David had handwritten a note on the bottom of the letter that he

had turned in all the names but they did not show on the policy.

       David’s action listing himself, Daniel, and Susan as members could

constitute evidence he intended to consent to membership. However, we do not

find David’s listing himself as member to a third party remedied the contractual

deficiency of the missing joinder agreement.

       F.     Conclusion.      The ninetieth day following Richard’s death was

February 2, 2016. The district court found by a preponderance of evidence that

David had consented and become a Class A member of Felt Farms LLC within the

statutory period and that Daniel and Susan were deemed to have assented to the

operating agreement and membership pursuant to statute. The court reached its

decision “with the goal of honoring [Richard]’s intent when he created the LLC.”

       On our review, we are constrained to construe the contract according to its

terms and the statutory law. We determine the intent of the parties forming the

company from the language of the contract. See Hartig Drug Co., 602 N.W.2d at

797. The operating agreement only provides one way for a potential member to

show agreement to become a member: the joinder agreement. We find none of
                                       15


the unit holders of Felt Farms LLC complied with the contractual requirements for

membership by signing a joinder agreement prior to the expiration of the ninety-

day statutory period. Therefore, the LLC dissolved as of February 3, 2016.

      REVERSED AND REMANDED.
