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E & A Consulting Group, Inc. v. World Baseball Village Management, LLC

Court of Appeals of Nebraska

August 20, 2013

E & A Consulting Group, Inc., appellant,
v.
World Baseball Village Management, LLC, et al., appellees.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Sarpy County: Max Kelch, Judge.

Heather Voegele-Andersen and Brenda K. Smith, of Koley Jessen, P.C, L.L.O., for appellant.

W. Eric Wood, of Downing, Alexander & Wood, for appellees.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

E & A Consulting Group, Inc. (E&A), filed an action against World Baseball Village Management, LLC, formerly known as World Baseball Village, LLC (WB Management); World Baseball Village of Utah, LLC (WB Utah); World Baseball Village Holdings, LLC (WB Holdings); 4 DAS, LLC; and Rhett Andersen, seeking to pierce WB Management's corporate veil in an effort to recover a judgment against WB Management. The district court for Sarpy County granted summary judgment in favor of WB Utah and WB Holdings, and subsequently granted summary judgment in favor of Andersen. Default judgment was entered against WB Management and 4 DAS, and they are not part of this appeal. E&A appeals the trial court's orders granting summary judgment in favor of WB Utah, WB Holdings, and Andersen. Because we find there are no genuine issues of material fact, we affirm.

BACKGROUND

In November 2009, the district court for Sarpy County entered a judgment, pursuant to a jury verdict, against WB Management and in favor of E&A in the amount of $83, 505.17, plus interest and court costs. The judgment was based on E&A's claims that WB Management had breached agreements between the parties regarding the development of a baseball/sports complex, now known as The Cat Osterman Experience, by failing to pay amounts due for consulting services performed by E&A.

On July 1, 2011, E&A filed a complaint against WB Management, WB Utah, WB Holdings, 4 DAS, and Andersen alleging two causes of action. The first cause of action alleged fraudulent misrepresentation against WB Management. E&A alleged that representatives of WB Management made fraudulent representations to E&A, including that WB Management was a properly established entity, that it was a capitalized entity, and that it could remit payment in full for the services E&A provided pursuant to agreements between the parties.

The second cause of action in the complaint requested that the court "pierce the corporate veil" of WB Management and determine that WB Utah, WB Holdings, and Andersen are jointly and severally liable for the payment of E&A's judgment against WB Management. E&A alleged that WB Management's capitalization was grossly inadequate; that once the judgment was entered in favor of E&A, WB Management's representatives determined that WB Management would become the management entity, while WB Utah would hold certain property associated with the baseball/sports complex; that the corporate structures of WB Management, WB Utah, and WB Holdings were related and were created without any regard to proper corporate structure; and that WB Holdings and Andersen diverted any potential assets from WB Management to WB Utah in an effort to evade WB Management's obligations to E&A. The complaint alleged that as a result of the above allegations, WB Utah and WB Holdings are responsible for any actions and liabilities of WB Management.

On September 26, 2011, WB Utah, WB Holdings, and Andersen filed an answer. WB Management and 4 DAS failed to file any response to E&A's complaint. E&A filed a motion for default judgment against WB Management and 4 DAS, which the trial court granted.

WB Utah and WB Holdings subsequently filed a motion for summary judgment asserting that they were entitled to judgment as a matter of law. A hearing was held on the motion. WB Utah and WB Holdings presented an affidavit of a manager of WB Holdings and presented E&A's answers to interrogatories. E&A offered an affidavit, with several attachments, of one of its attorneys, including testimony given by Andersen at a debtor's examination of WB Management.

The evidence established that the first services performed by E&A for which it sought payment from WB Management were rendered in October 2006. The last day of services for which E&A sought payment was July 17, 2007. WB Management was registered as a limited liability company in Nebraska on August 13, 2007, 27 days after the last work was performed by E&A.

WB Management's current and only member is WB Holdings, which was organized in Utah on September 14, 2009, and first capitalized on January 1, 2010. Andersen is a manager of WB Management, as well as a manager of WB Utah and WB Holdings.

WB Management has never been capitalized and has never owned any real estate, any personal property, or any assets. It has never had a bank account, employed any individuals, or filed any tax returns.

WB Utah was organized in Utah on May 16, 2007, and was capitalized 2 days later. In January 2010, WB Holdings became the only member of WB Utah. WB Utah owns the dormitories that are part of the baseball/sports complex. The city of Bellevue, Nebraska, owns the baseball diamonds, the barn, and the land that has been turned into the playing complex.

WB Utah and WB Holdings have never contributed any capital to WB Management, have never transferred any assets to WB Management, have never received any assets or property of any nature from WB Management, have never conducted any business through WB Management, have never had any contract or business relationship with WB Management, have never received any funds or assets that were at any time the property to WB ...


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