Saturday, May 25, 2019
Wednesday, May 22, 2019
Service of Petition for Charging Order Upon LLC
In a recent decision from a federal district court in Georgia, it was held that, under the Georgia LLC Act, a petition for a charging order need not be served on the LLC itself. First Southwestern Financial Services, LLC v. Dennis Waters Construction, LLC, Civil Action No.: 4:13-CV-260, 2019 WL 1782123 (S.D. Ga. April 23, 2019).
In this instance, First Southwestern sought a charging order against the interest of Dennis Waters in numerous LLCs. Although it is not entirely clear as to why the question arose (the defendant never responded to the request for a charging order), the court considered whether it was necessary to serve the application for the charging order upon the subject LLC. Comparing the Georgia LLC Act’s charging order statute (O.C.G.A. § 14-11-504) to those of other states including with the equivalent provision of the Kentucky Uniform Partnership Act (Ky. Rev. Stat. Ann. § 362.481), in the absence of a provision in the Georgia statute requiring that service of the charging order be made as well upon the LLC, as well as a limited rights afforded one to whom a charging order is granted, it was held the service on the LLC is not required.
Tuesday, May 21, 2019
More on LLCs Must Be Represented By Attorneys; Alaska Speaks
Across the states, it is accepted that an LLC may appear in court only through an attorney. On the recent decision from Alaska’s adopted that same rule. Parlier v. Can-Ada Crushing & Gravel Co., S. Ct. No. S-17358, 2019 WL 2064048 (Alaska May 10, 2019).
In this decision, the Alaska Supreme Court extended a statute which requires that a corporation be represented in court only by an attorney to include LLCs, citing in support not only prior Alaska law but also the decisions from other jurisdictions.
Sunday, May 19, 2019
The Fall and Execution of Anne Boleyn
Today, May 19, marks the anniversary of the execution in 1536 of Anne Boleyn on spurious charges of adultery and therefore (by one argument) treason. While she would be included in Foxe’s Book of Martyrs, a 16th century effort at Protestant hagiography, all indications are that Anne died a Catholic; it is difficult to otherwise understand her request that the Eucharist be placed in her chambers at the Tower of London in the days before her execution.
It was a convoluted process that brought Anne to execution.
Previously, Henry VIII had been married to Catherine of Aragon. That marriage would ultimately sour on the fact that only one of the children of Henry and Catherine survived infancy, that being Mary. England was not, it was feared, ready to be ruled by a queen. The only example of it doing so, that being the reign of the Empress Matilda (daughter of King Henry I) was referred to as the “Anarchy.” Seeking to perpetuate the dynasty and avoid the possibility of civil war after his death, Henry pursued the Divorce (it was actually what we would refer to today as an annulment) so that he could marry Anne Boleyn.
The Divorce could not easily be had consequent to at least a pair of factors. Initially, on theological grounds, the basis for the Divorce was weak. Second, Eleanor’s nephew, Charles V, was King of both Spain and the Netherlands and as well Holy Roman Emperor. He was able to delay any Papal decision on the Divorce, thereby depriving Henry of the one thing he did not have, namely time. Ultimately, Henry would schism the English church from Roman communion (an act which earned for Henry his very own bull of excommunication). The marriage to Catherine of Aragon was then annulled by Thomas Cramer, Archbishop of Canterbury notwithstanding that he did not have he authority to do so. Now “single,” Henry proceeded to marry Anne Boleyn. She, already pregnant at the time of the marriage, would be the mother of Elizabeth. Elizabeth would be their only child. Henry was now in no better position than he was before; two potential female heirs to the throne did not address the perceived need for a male heir. Anne’s fortunes would ultimately be destroyed consequent to a series of events whose genesis is still greatly debated, but it is clear that the charges of adultery and incest for which she was convicted and executed were entirely fabricated. Regardless, by some means Thomas Cromwell was told to make it happen, and he did.
On April 30, 1536 Mark Smeaton, a court musician and hanger-on, was arrested, this being the first overt step in Cromwell’s plan to bring down Anne Boleyn. According to one source, Cromwell had Smeaton brought to his own house and there tortured him. Eventually, Smeaton would be racked and confess to have committed adultery with Anne Boleyn. Some five additional men would be arrested on similar grounds. One of them, Wyatt, was not ultimately charged.
The first trial (albeit indirect) of Anne Boleyn took place on May 12, 1536. Anne, however, was not a participant in the trial. Rather, at this trial each of Mark Smeaton, Henry Norris, William Brereton and Francis Weston were charged with multiple acts of adultery with the Queen. Sadly, no transcript of the proceedings, if made (and that is doubtful), survives. All were found guilty, thereby sealing Anne’s fate. She did not attend the trial; rather, at that time she was confined in the Tower of London. Her father, Thomas Boleyn, did sit on the jury – his vote in favor of their conviction sealed the fate of his children.
On May 15, 1536, Anne Boleyn as well as her brother George were tried on allegations of adultery and incest. As to Anne, the conclusion of this “trial” was a foregone conclusion. Four of the men with whom Anne was accused of having engaged in adultery, Mark Smeaton, Henry Norris, William Brereton and Francis Weston, had already been convicted on May 12, and, so goes the adage, it does take two to tango. George was convicted on the charges against him.
Although some incomplete notes of this trial do survive, sadly no transcript is available; it would no doubt make interesting reading. It is clear that both Anne and then George (George’s trial was separate and held after that of Anne) denied all charges against them. Those denials (as well as the expected denials of the other men charged with having committed adultery with Anne) must be accepted at face value. As has been demonstrated by several scholars, most conclusively Eric Ives, the author of the definitive biography of Anne, Anne and her various co-conspirators could not have been guilty of the charges made – even with the incomplete records available to us today, it can be demonstrated that in numerous instances Anne and a particular gentleman were charged with having committed adultery at a particular time and place when, in fact, either or both of them were at a different place or even two difference places. The truth, however, was not the issue; the outcome of the trial was a foregone conclusion before it ever started. Henry was tired of Anne, and Cromwell had been charged to bring about her fall. End of story.
On May 14, Cramner, Archbishop of Canterbury, had declared the marriage of Henry and Anne to have been invalid ab initio, possibly (the papers as to his determination have been lost) on the basis of her prior contract of marriage to Henry Percy the son of the then Fifth Earl of Northumberland (this Henry would be the Sixth Earl). An alternative basis was that Mary Boleyn, Anne's sister, had been Henry's mistress, and on that basis the marriage could have been invalid based upon consangruity. Regardless as to why, Anne would not die as the Queen of England, having never been validly married to Henry, and their daughter Elizabeth (the future Queen Elizabeth I) was rendered illegitimate.
All of Mark Smeaton, Henry Norris, William Brereton and Francis Weston, along with George Boleyn, would be executed on May 17. Anne’s death would not take place until May 19.
Famously, Anne was executed not with the traditional English ax, but rather by a French swordsman. I have never found a satisfactory explanation as to why the swordsman was requested over the axeman; Friedmann (another biographer of Anne) suggested, and Ives admits it as a possibility, that it was at Anne’s request, she desiring the French manner of execution in light of her having been raised in the French court. There is, however, a problem of chronology. Anne was consigned to the Tower on May 2, her alleged partners in adultery (other than her brother George) were tried on May 12, and she was tried on May 15. The swordsman, normally resident in Calais, may have been ordered to come to England before Anne’s trial. If so, there is further evidence that the trials were for show and the verdicts were pre-determined; even though her trial had not yet taken place, the manner of her dispatch may have already been selected. Still she came out ahead (no pun intended); her sentence was commuted to beheading – the regular sentence for a woman convicted of treason was burning at the stake.
Anne was buried in St. Peter ad Vincula, the church on the grounds of the Tower of London. There she joined Sir (now Saint) Thomas More, another of Henry’s victims.
Henry would marry Jane Seymour, his third wife, on May 30. She shortly thereafter became pregnant, ultimately delivering a son who would survive infancy. That child was Edward VI. Jane would die of complications from childbirth. While Henry would go on to marry three more times, namely to Anne of Cleves, Catherine Howard and Catherine Parr, none of them would have children by him. Edward VI would die, probably of tuberculosis, in his mid-teens. Mary and then Elizabeth, the girls Henry feared could not rule, would in turn rule England. As observed by Peter W. Hogg, Succession to the Throne, 33 Nat'l J. Const. L. 83 (2014):
[W]hile Henry VIII was engaged in his obsessive quest for a male heir he could not know that his daughter Elizabeth by Anne Boleyn (the second of his six wives) was destined to become the greatest monarch England had ever known. She became Elizabeth I (Good Queen Bess, as she was known), and ruled for 45 years (1558-1603, England's “golden age”). Henry should have stopped worrying and settled down with Anne Boleyn instead of beheading her.
Thursday, May 16, 2019
More on LLCs May Appear in Court Only Through an Attorney
Most states now have a ruling to the effect that an LLC may appear in court only through an attorney. In Illinois that ruling is Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings, 12 N.E.3d 691 (May 20, 2014), aff’d 88 N.E.3d 699 (Feb. 20, 2017). A recent decision applied that rule in a question over jurisdiction. Cross v. Wal-Mart Stores, Inc., 2019 IL App. (5th) 180350-U, 2019 WL 1984604 (Ill. App 5th May 2, 2019).
This dispute involved a medical LLC’s claims for payment on services rendered to Cross after a slip and fall injury in a Wal-Mart store. The LLC was never served, and the question was whether a non-attorney’s participation in a hearing served to waive the requirement of service and a consent to the court’s jurisdiction. It was held that an LLC had not made a general appearance in an action when the company representative was not an attorney. Rather:
Finally, it cannot be said that the Non-Parties submitted to the court’s jurisdiction when James appeared at the hearing on Plaintiff’s amended petition to adjudicate liens and inchoate claims under the Act. The Plaintiff’s contention that James’ appearance at the hearing to adjudicate the liens was a “general appearance” by the Non-Parties sufficient to waive service of process is misplaced. The Non-Parties are limited liability companies, which can only appear in legal proceedings via an attorney. See Stone Street Partners, LLC, 2014 IL App (1st) 123654, ¶¶ 17, 21. It is undisputed that James, while an employee of the Non-Parties, was not an attorney and was unable to present evidence and argument on behalf of the Non-Parties at the hearing. As a non-attorney, James’ attempted “representation” of the Non-Parties at the hearing does not legally constitute an “appearance” on behalf of the Non-Parties, waiving the right of the Non-Parties to service of process to acquire personal jurisdiction.
2019 WL 1984604, ¶ 35.
Wednesday, May 15, 2019
Dissenter Rights Procedure
In Peter Mahler’s blog New York Business Divorce, Franklin C. McRoberts has posted a summary of the requirements applicable, under New York corporation law, for the prosecution of a dissenter rights action. Why your state may not follow the exact same procedure, this posting provides a useful outline of what you need to look for under the laws of other jurisdictions.
That posting, entitled How to Initiate a Fair Value Appraisal Proceeding as a Dissenter’s Checklist, is available at the following link: HERE IS A LINK.
Monday, May 13, 2019
Business Law Update: Cases (and a Few Statutes) of Which You Need To Be Aware
On Thursday, June 13, at the KBA Annual Convention, the KBA Section of Business Law will be presenting Business Law Update: Cases (and a Few Statutes) of Which You Need to be Aware.
This Business Law Update is designed to bring attendees up to speed on the most important cases handed down by Kentucky and other courts over the last two years. The developments being reviewed are important for both the business law practitioner and the business law litigator. While there will not be time to review every case in the voluminous outline, presenters Elizabeth M. Reeder and Thomas E. Rutledge will highlight particular decisions. In addition, their presentation will address a number of cases that have come down after the due date for the outline.