ROBL CONSTRUCTION, INC., a Kansas Corporation, Plaintiff–Appellant v. Andrew G. HOMOLY, Defendant–Appellee.
Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges. Kelsey J. O'Donnell, argued, Kansas City, MO, (Daniel Owen Herrington, I, Kansas City, MO, on the brief), for Plaintiff–Appellant. David W. White, argued, Kansas City, MO, (Lynn Weddle Judkins, Overland Park, KS, on the brief), for Defendant–Appellee.
In this diversity case, see 28 U.S.C. § 1332(a)(1), (c)(1), Robl Construction, Inc. (Robl Construction), a Kansas citizen, appeals the adverse grant of summary judgment to Andrew Homoly, a Missouri citizen, on Robl Construction's claim that Homoly breached an agreement personally to guarantee 40% of a $431,544.02 loan1 Robl Construction made to Homoly & Robl, L.L.C. (Company). The district court found Homoly did not personally guarantee any loan from Robl Construction. Because the record and the parties' submissions reveal Robl Construction and Homoly genuinely dispute whether Homoly—by word and deed—authorized Robl Construction's loan to the Company and personally guaranteed repayment in accordance with the terms of the Company's agreements, we reverse and remand for further proceedings.
On October 29, 2002, Robl Construction, through its president Steve Robl, and Homoly formed the Company to purchase and develop residential real estate. Robl Construction and Homoly executed an operating agreement and a separate Buy–Sell, Option, and Financing Agreement (buy-sell agreement). Both agreements govern the Company's financial affairs and define the members' rights and duties in accordance with Kansas law. The buy-sell agreement controls in the event of an inconsistency.
As the only members of the Company, Robl Construction held a 60% share and Homoly held a 40% share. Steve Robl was the Company's tax matters partner, and his wife, accountant Vera Robl, assisted with the Company's financial records. Homoly primarily worked as a project manager in the field.
In 2004, the Company began to have financial problems. From 2006 to 2011, the Company operated at a loss and needed additional capital to continue operations. Robl Construction was periodically advancing money to the Company, and Steve Robl, Vera Robl, and Homoly discussed whether the Company should make a capital call or treat the advances as a revolving loan.
No, the 71,000 is new money we've put in to cover all the carrying costs of the inventory. To match it, you would need to put in 47,666․ I've been treating the 71,000 like a loan from Robl Const, but I need to know what the plans are—will it be capital and you will match it, or will it be a loan and be repaid?
Wow, if my portion is $82,566, does this mean we are in the hole by $206,400? ․ I could put in that much money, but it would be a good sized hit for my liquidity․ With that in mind, I guess I would prefer the money from Robl to be considered a loan and then you guys get repaid with interest. If Steve would rather me put in a capital call, however, I will go ahead and write the check.
Relying in part on this email exchange, Robl Construction avers the parties agreed to treat Robl Construction's periodic advances to the Company as a revolving loan. As Robl Construction sees it, Homoly not only requested the loan, but also agreed to be personally liable for 40% of the $431,544.02 debt pursuant to § 8 of the buy-sell agreement, under which Robl Construction and Homoly each “agree[d] to personally guarantee [their proportionate share of] any and all loans” to the Company at the request of the Company and the lender. See Kan. Stat. Ann. § 17–7688(b) (allowing members to opt out of the state's default non-liability rule and “agree to be obligated personally for any or all of the debts, obligations and liabilities of the limited liability company” “under an operating agreement or under another agreement”).
On March 29, 2011, Robl Construction formally demanded that Homoly repay his share of the unpaid loan. When Homoly refused, Robl Construction sued Homoly for breach of contract, seeking $172,617.61 in damages—Homoly's share of the debt. Homoly moved for summary judgment, arguing (1) if the advances to the Company were failed capital calls, Robl Construction could seek, at most, dilution of Homoly's interest in the Company, and (2) if the advances were a loan, Robl Construction failed to meet the conditions precedent in the parties' agreements and to satisfy the statute of frauds with respect to Homoly's alleged guarantee.2 In response, Robl Construction insisted the advances were a loan and argued genuine factual disputes precluded summary judgment.
Ostensibly accepting Robl Construction's characterization of the advances as a loan, the district court granted Homoly's motion, “find[ing] the money Robl gave the Company was not a personally guaranteed loan.” Robl Construction appeals.
Robl Construction and Homoly agree on little, but they do agree Kansas law governs their dispute. See H & R Block Tax Servs. LLC v. Franklin, 691 F.3d 941, 943–44 (8th Cir.2012) (applying state substantive law as specified by contract because Missouri, the forum state in a diversity case, generally enforces contractual choice-of-law provisions). We review de novo the district court's application of state law and its grant of summary judgment. See Bannister v. Bemis Co., 556 F.3d 882, 884 (8th Cir.2009). Summary judgment is required “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Robl Construction contends this was error because the district court “premised its holding exclusively on the email exchange and failed to consider other evidence that Homoly” authorized and “personally guarantee[d] the loan.” Robl Construction further asserts “[t]he District Court erroneously stepped into the role of fact finder and failed to resolve all facts and inferences in” Robl Construction's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 249 (1986) (“[A]t the summary judgment stage the judge's function is not ․ to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”); Henrickson v. Drotts, 548 P.2d 465, 468 (Kan.1976) (“A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.”). Robl Construction's points are well taken.
Under Kansas law, “[t]he question whether a binding contract was entered into depends on the intention of the parties and is a question of fact.” Reimer v. Waldinger Corp., 959 P.2d 914, 916 (Kan.1998); see also Hays v. Underwood, 411 P.2d 717, 720–21 (Kan.1966) (explaining that conflicting evidence and competing inferences as to the existence and terms of a contract present fact questions). “[W]hether a party's duty under a contract was based on a condition precedent is” also a fact question, Cravotta v. Deggingers' Foundry, Inc., 215 P.3d 636, 642 (Kan.Ct.App.2009), as is the question of breach, see Wichita Clinic, P.A. v. Louis, 185 P.3d 946, 959 (Kan.Ct.App.2008). “[I]nterpretation of the written terms of a contract, however, [is] a question of law.” Reimer, 959 P.2d at 916.
A contract may be oral, written, or a mixture of both. See, e.g., Chilson v. Capital Bank of Miami, 701 P.2d 903, 907 (Kan.1985). “Whether an ambiguity exists in a written instrument is a question of law for the court.” Hollenbeck v. Household Bank, 829 P.2d 903, 906 (Kan.1992). “[W]here ambiguity or uncertainty is involved, the parties' intent may be determined from all the language used in the contract, the circumstances existing when the agreement was made, the object sought to be obtained, and other circumstances, if any, which tend to clarify the intention of the parties.” Id. “The terms of an oral contract and the consent of the parties may be proven by the parties' acts and by the attending circumstances, as well as by the words that the parties employed.” Unified Sch. Dist. No. 446, Independence, Kan. v. Sandoval, 286 P.3d 542, 546 (Kan.2012).
Predictably unswayed by Robl Construction's evidence, Homoly urges a different interpretation. Having disputed most of Robl Construction's “Additional Material Facts,” Homoly maintains “nothing in the materials offered” shows the advances were a loan or that the conditions of the parties' agreements were met, including Homoly's consent to the loan and his assent to personal liability for the Company's debt.
Homoly, in his appellate brief, claims his intent in agreeing and consenting to personal liability in the buy-sell agreement was limited to a specific loan from a bank. Homoly also disputes the meaning and import of the pivotal 2006 email exchange and challenges Robl Construction's understanding of the parties' frequent communications about the loan and Homoly's personal liability for the debt. For example, in response to Vera Robl's testimony that Homoly's periodic requests for Robl Construction to “cover” Company shortages constituted “a loan in every way,” Homoly contends his request to “cover” is “at best, an oral request for money and not a request for a loan”—arguably a distinction without a difference.
But questions of intent and whether the parties' statements and actions satisfied the conditions precedent in their agreements are precisely the type of factual disputes a jury must decide. See, e .g., First Nat'l Bank of Hutchinson v. Kaiser, 564 P.2d 493, 496–97 (Kan.1977); M West, Inc. v. Oak Park Mall, L.L.C., 234 P.3d 833, 845–46 (Kan.Ct.App.2010); Cherryvale Grain Co. v. First State Bank of Edna, 971 P.2d 1204, 1209 (Kan.Ct.App.1999).
Further, under Kansas law, Homoly cannot avoid contractual liability “merely by claiming the conditions [precedent] have not been met.” Barbara Oil Co. v. Patrick Petroleum Co., 566 P.2d 389, 393 (Kan.Ct.App.1977). A party hoping to avoid liability “must affirmatively show that (1) the condition precedent actually failed and (2) because of such failure, the contract will not be performed.” Id. Whether Homoly refused to perform based on “a genuine and good faith claim that a condition precedent failed is a question for the jury.” Id.; accord JDN Dev. Co. v. Terra Venture, Inc., 265 F.Supp.2d 1239, 1250–51 (D.Kan.2003) (denying summary judgment where a party flatly asserted conditions precedent were not met).
Without addressing Homoly's burden and the jury's role in deciding questions of failed conditions under Barbara Oil Co., 566 P.2d at 393, the dissent concludes we should not allow a jury to resolve this contract dispute because, in the dissent's view, Robl Construction waived any argument that Robl Construction “fulfilled § 6.03(D) and (I) of the operating agreement by loaning money to the Company with Homoly's prior consent.” Post at 19. Leaving aside the incongruity of Homoly agreeing to guarantee the loan personally without consenting to the loan itself, the dissent's conclusion that Robl Construction “essentially ignores” § 6.03(D) and (I) is at odds with the record. Post at 18.
Rather than ignore the conditions precedent in § 6.03(D) and (I), Robl Construction, challenging the district court's determination that Homoly expressed a “preference—not request” for a loan, explicitly and repeatedly asserted in its appellate brief that the conditions were met. The dissent acknowledges as much, noting Robl Construction specifically asserted “Homoly consented to” the loan. Post at 20 n. 6. Yet the dissent summarily dismisses that assertion because it “addresse[d]” a different argument. Id. The dissent's belief that this statement is the “only place in which Robl Construction even hints to argue that it fulfilled § 6.03(D),” id., conflicts with the record and the dissent's own analysis. In framing Robl Construction's arguments, the dissent admits Robl Construction asserted the loan met the requirements of the parties' agreements—which would unequivocally include § 6.03(D) and (I)-but concludes such a “general denial” is inadequate to preserve the issue. Post at 17.
Drawing a fine distinction between Homoly authorizing the loan and requesting it, the dissent concedes Robl Construction stated Homoly “requested” the loan and presumes Robl Construction was “arguing that such a request constituted the necessary ‘prior consent of a Super–Majority–in–Interest’ to fulfill § 6.03(D).” Post at 17. Yet this presumption apparently is not enough to prevent waiver. In claiming “Robl Construction waive[d]” its arguments, post at 19–20, the dissent overlooks, among other things, Robl Construction's assertions that (1) “Robl Construction presented direct and circumstantial evidence ․ Homoly consented to the Robl Construction loans,” and (2) the 2006 email exchange indicated “Homoly request[ed] Robl Construction make a loan and Robl Construction ‘would get repaid.[’]” (Emphasis added). We are satisfied Robl Construction did not waive its argument that Homoly consented to the loan as required by § 6.03(D).
The same is true for § 6.03(I). Despite claiming Robl Construction “essentially ignore[d]” § 6.03(I), the dissent later explains Robl Construction did not ignore § 6.03(I) at all but instead “argue[d] § 8 of the buy-sell agreement acts as Homoly's written consent,” which satisfies § 6.03(I). Post at 18, 21. Robl Construction adequately preserved this issue as well.
We also question some of Homoly's proposed interpretations of the writing and timing requirements in the parties' agreements. For example, Homoly does not provide any support for his assertions that § 6.03(D) of the operating agreement requires “signed written consent” for loans in excess of $10,000, or that the parties cannot designate the money from Robl Construction as a loan or request a guarantee after the receipt of funds. (Emphasis added). In Homoly's view, the Company had to obtain his consent before receiving any money from Robl Construction, even though he and Robl Construction had not yet decided whether the Company would treat the initial advances as a capital contribution or a loan.
As we read it, § 6.03(D) prohibits only “[t]he creation of any obligation or commitment of the Company, including the borrowing of funds, in excess of $10,000” without super-majority consent. (Emphasis added). At the least, the language is open to an interpretation under which the parties intended to require super-majority consent only before the Company was bound, and an undesignated advancement of funds does not necessarily impose any obligation on the Company. A reasonable jury could find there was no such binding obligation or commitment from the Company unless and until the parties decided to treat the advances as a loan. At that point, the jury could reasonably find the requisite consent.
Even if the timing of the advances—as opposed to the obligation to repay—is unambiguously relevant, Homoly's analysis is incomplete. Most of the advances occurred after the 2006 email exchange and after disputed communications about the alleged loan. Homoly argues the evidence does not establish the Company “complied with the Super–Majority–in–Interest requirements necessary to even allow such loan(s) to be authorized prior to each being made.” But if the parties agreed to a single revolving loan, as Robl Construction contends, with support from the email, we would not expect a separate consent before each advance.
To the extent the parties intended a series of smaller loans, record testimony from Vera Robl, Steve Robl, and Homoly describing frequent discussions about such loans plausibly suggests multiple loan requests from Homoly. Even absent direct evidence of consent for each advance, some of Robl Construction's alleged advances do not run afoul of § 6.03(D) because they do not exceed $10,000. Homoly does not account for these obvious inconsistencies and conceptual gaps.
The facts also suggest Homoly may have ratified at least part of the loan to the Company by knowingly accepting the benefit. See Cherryvale Grain, 971 P.2d at 1208 (“ ‘The acceptance and retention of the proceeds of a loan or of the benefits thereof, although made without authority, amount to an implied ratification of the loan.’ “ (quoting Allison v. Borer, 293 P. 769, 772 (Kan .1930))); see also Sunflower Bank, N.A. v. Airport Red Coach Inn of Wichita, L.L.C., 175 P.3d 883, 2008 WL 360641, at *4 (Kan.Ct.App. Feb. 8, 2008) (per curiam) (unpublished table decision) (evaluating whether the members of a limited liability company impliedly ratified a loan that was not authorized by the operating agreement based on the receipt of loan proceeds and other evidence of the members' intent).
Homoly testified he knew the Company “was getting a loan from Robl Construction, and they just kept getting more,” and he understood that the money allowed the Company to operate without selling assets or making a capital call. Yet Homoly never told his business partner to stop loaning money to the Company. Robl Construction has adduced sufficient evidence of implied consent by ratification to create genuine disputes of material fact at least with respect to part of the loan.
Nor can we accept Homoly's suggestion that written personal guarantees he and Robl Construction once executed at the request of a bank in connection with a construction loan indicate § 8 of the buy-sell agreement requires a separate “written consensual personal guarantee” before Homoly became personally liable. Neither the contract language nor the record supports Homoly's proposed separate guarantee requirement.
First, pursuant to § 8, Homoly expressly and unambiguously “agree[d] to personally guarantee any and all loans by any such lender to Company” “[i]f requested by the Company and any lender.” (Emphasis added). See Stauth v. Brown, 734 P .2d 1063, 1069 (Kan.1987). Section 8 says nothing about a separate written guarantee. If Robl Construction and Homoly truly intended to require a separate guarantee as Homoly suggests, they could have easily written that requirement into § 8, just as they expressly required a promissory note in § 7. They did not. “ ‘Words cannot be read into the agreement which impart an intent wholly unexpressed when it was executed.’ “ Mears v. Hartford Fire Ins. Co., 667 P.2d 902, 905 (Kan.Ct.App.1983) (quoting In re Estate of Johnson, 452 P.2d 286, 291 (Kan.1969)). “[T]he more logical conclusion is that the contract imposes no such obligation.” Boos v. Nat'l Fed'n of State High Sch. Assocs., 889 P.2d 797, 802 (Kan.Ct.App.1995).
Second, assuming we found § 8 ambiguous as to the parties' intent regarding a separate guarantee, Homoly is still unable to establish he is entitled to summary judgment as a matter of law. “[I]f the language of a contract is ambiguous and the intent of the parties cannot be ascertained from undisputed extrinsic or parol evidence, summary ․ judgment is inappropriate.” Waste Connections of Kan., Inc. v. Ritchie Corp., 298 P.3d 250, 265 (Kan .2013) (emphasis added); see also Nungesser v. Bryant, 153 P.3d 1277, 1288 (Kan.2007) (“When the evidence pertaining to the existence of a contract or the content of its terms is conflicting or permits more than one inference, a question of fact is presented.”); First Nat'l Bank, 564 P.2d at 496 (“Whether the guaranty was limited by a concurrent agreement of the parties ․ was ․ an issue of fact which could not be resolved as a matter of law.”).
Finally, even if we could consider extrinsic evidence, see Butts v. Lawrence, 919 P.2d 363, 367 (Kan.Ct.App.1996) (explaining that, absent ambiguity, it is “error to consider ․ extrinsic evidence of the parties' intent”), and resolve the alleged ambiguity in § 8, Homoly fails to adduce any competent evidence that the parties intended to include an unexpressed separate guarantee requirement in § 8. The fact the members once separately documented personal guarantees at the request of a third-party lender does not indubitably and forever establish the members' intent to require a separate guarantee for every loan. Indeed, the record is completely devoid of any evidence regarding the members' motive for executing the written guarantees on which Homoly relies—depriving those guarantees of evidentiary value. See, e.g., Canyon Creek Dev., LLC v. Fox, 263 P.3d 799, 801 (Kan.Ct.App.2011) (recognizing courts must “view the evidence in the light more favoring the nonmoving party” and refusing to “speculate about the existence, motivating influence, or possible consequence of any [personal] guaranties” because “there [we]re no facts whatsoever on th[e] issue” in the record).
Homoly has failed to show he is entitled to judgment as a matter of law under the parties' agreements.
Although the district court did not reach this issue, Homoly argues Robl Construction's failure to satisfy the statute of frauds with respect to Homoly's purported guarantee provides an alternative basis to affirm summary judgment. See Kan. Stat. Ann. § 33–106 (“No action shall be brought whereby to charge a party upon any special promise to answer for the debt ․ of another person ․ unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.”). We disagree.
the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute [of frauds], although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.
Allen v. Turner, 106 P.2d 715, 719 (Kan.1940) (quotation omitted); accord Davis v. Patrick, 141 U.S. 479, 488 (1891) (“[C]ases sometimes arise in which, though a third party is the original obligor, the primary debtor, the promisor has a personal, immediate, and pecuniary interest in the transaction, and is therefore himself a party to be benefited by the performance of the promisee. In such cases the reason which underlies and which prompted this statutory provision fails, and the courts will give effect to the promise.”).
The Kansas Supreme Court has “held that whether such a promise was original or collateral [i]s ordinarily one of fact” to be determined from the surrounding circumstances. Allen, 106 P.2d at 719; accord Owensboro Wagon Co. v. D.A. Wilson & Co., 101 P. 4, 6 (Kan.1909). That question of intent precludes summary judgment on this issue.
Robl Construction and Homoly have dramatically different views of the evidence. At this stage, the only question we must answer is whether “the evidence is such that a reasonable jury could return a verdict for” Robl Construction on its breach of contract claim “or whether it is so one-sided that [Homoly] must prevail as a matter of law.” Anderson, 477 U.S. at 248, 252 (emphasis added). After careful review, we conclude the evidence is not so one-sided as to justify taking this case from the jury.
When viewed in the light most favorable to Robl Construction, the record “evidence is such that a reasonable jury could,” id. at 248, find Homoly authorized and personally guaranteed at least part of the loan in accordance with the parties' agreements. This is not to say the jury would have to believe Robl Construction's account, but a reasonable jury could. At trial, Homoly may challenge Robl Construction's witnesses and its interpretation of the evidence; however, at this point, Homoly has fallen short of proving no genuine dispute of material fact exists on this record and that Homoly is entitled to summary judgment as a matter of law. We reverse the district court's judgment and remand for further proceedings.
I respectfully dissent. In my review of this case, I believe the majority somewhat misses the mark by focusing on disputes of fact regarding Homoly's consent to be personally bound. The contract language requires focus on an antecedent inquiry: whether the loan(s) themselves are enforceable debts. If Robl Construction violated the operating agreement by improperly loaning the Company money without meeting the requisite conditions precedent, then neither the Company nor Homoly would be liable for their respective debts under the invalid loan.
The majority not only liberally construes Robl Construction's arguments but raises arguments that Robl Construction did not. When Homoly moved for summary judgment, he argued five points: (1) the operating agreement did not provide for a direct cause of action for failing to meet a capital contribution; (2) the necessary preconditions to trigger liability under a capital contribution were not met; (3) the necessary preconditions to trigger a personal guarantee under § 8 of the buy-sell agreement were not met; (4) the loan was invalid because Robl Construction violated § 6.03(D) of the operating agreement; and (5) any alleged oral agreement of Homoly to be personally bound did not satisfy the statute of frauds. In its opposition, Robl Construction only addressed issues (1), (2), (3), and (5). Robl Construction sidestepped issue (4) with a general denial by asserting that “Robl Construction's loan and Homoly's personal guarantee and authorization do not violate the Operating Agreement or the Buy–Sell Agreement.” Elsewhere, Robl Construction stated in passing that Homoly “requested” the loan. Although this argument was not clearly outlined, Robl Construction was presumably arguing that such a request constituted the necessary “prior consent of a Super–Majority–in–Interest” to fulfill § 6.03(D).
Robl Construction's argument avoids issue (4), that is, whether Robl Construction violated the operating agreement by advancing the Company monies without the “prior consent of a Super–Majority–in–Interest” under § 6.03(D). Further, § 6.03(I) requires either the prior consent of a Super–Majority–in–Interest to impose personal liability on any Member “for any debt or obligation of the Company,” or the “written consent” of that Member to be personally bound. Robl Construction essentially ignores these contractual provisions.
Homoly argues on appeal that he is entitled to judgment as a matter of law because Robl Construction broke the very rules that governed the operation of the Company. His points are well taken. As stated above, Robl Construction has not advanced an argument as to Homoly's authorization of the loan, but it has submitted evidence on his personal guarantee. Thus, my disagreement with the majority rests in Robl Construction's waiver of arguing that it fulfilled § 6.03(D) and (I) of the operating agreement by loaning money to the Company with Homoly's prior consent.
In Kansas, “[t]he general rule is that the extinguishment, release or discharge of the principal's contract relieves the guarantor of his or her obligation to pay.” Hill Petroleum Co. v.. Pathmark Int'l, Inc., 759 F.Supp. 722, 725 (D.Kan.1991) (citing Iola State Bank v. Biggs, 662 P.2d 563, 570 (Kan.1983)). “The guaranty is an obligation collateral to another contractual duty to perform․ It is in the nature of a warranty by the guarantor that the thing guaranteed to be accomplished by the principal shall be done, and is not an engagement jointly with the principal to do the act.” Biggs, 662 P.2d at 567 (citing Trego WaKeeney State Bank v. Maier, 519 P.2d 743 (Kan.1974)). “As the extent of the liability of the principal debtor generally measures and limits the liability of the guarantor, and a guaranty is dependent on the existence of a principal obligation, if the principal contract is invalid for reasons inherent in itself, the guaranty generally is also invalid.” 38A C.J.S. Guaranty § 15 (footnotes omitted); see also 38 Am.Jur.2d Guaranty § 51 (1968) (“The guaranty promise is a promise to answer for the debt or the default of the principal debtor under his contract with the creditor. Therefore, unless the debtor is bound under the principal contract, there is no obligation which is guaranteed and the guarantor is not liable to the creditor if the debtor fails to perform.”), quoted in Precision Sawing, Inc. v. Cane Creek Concrete Servs., Inc., No. 5:13CV00054 JLH, 2014 WL 1154125, at *3 (E.D.Ark., May 20, 2014).
Robl Construction did not show Homoly actually authorized the loan as is required by § 6.03(D) and (I) of the operating agreement. Addressing subsection (D), Robl Construction does not argue that Homoly gave his prior consent to the over $10,000 loan before the Company assumed the debt.6 When a contract is unambiguous, “[t]he interpretation and legal effect of a contract is a question of law for the court to decide, not a jury.” Wolfe Elec., Inc. v. Duckworth, 266 P.3d 516, 534 (Kan.2011) (citing Osterhaus v. Toth, 249 P.3d 888, 896 (2011)). Section 6.03(D) prohibits the creation of an obligation of the Company, which includes taking on a debt of over $10,000. Robl Construction contends Homoly agreed to personally guarantee the loan but ignores the antecedent inquiry of whether he authorized the loan in the first place. Logically, these are distinct legal questions. Whether Homoly agreed to personally guarantee the loan only becomes a material fact dispute if the debt itself is legally enforceable. As a result, I would affirm the district court's grant of summary judgment on the basis that Robl Construction has failed to show a genuine dispute of material fact that Homoly gave his prior consent to the loan, and due to Robl Construction's violation of § 6.03(D), Homoly is entitled to judgment as a matter of law.
Second, § 6.03(I) requires the “prior consent of a Super–Majority–in–Interest” when the Company takes “[a]ny act which would cause a Member, absent such Member's written consent, to become personally liable for any debt or obligation of the Company.” Homoly asserts that he never gave such written consent. Robl Construction does not dispute that but argues that § 8 of the buy-sell agreement acts as Homoly's written consent. Both Robl Construction and the majority note that in cases of inconsistencies between the operating agreement and the buy-sell agreement, the latter controls. According to Kansas law, however, we must consider the two agreements together. See First Nat'l Bank of Hutchinson v. Kaiser, 564 P.2d 493, 496 (Kan.1977) (“Where two instruments are executed by the same parties at or near the same time in the course of the same transaction, and concerning the same subject matter, they will be read and construed together.” (citing Amortibanc Inv. Co. v. Jehan, 551 P.2d 918 (Kan.1976); Place v. Place, 486 P.2d 1354 (Kan.1971); Skinner v. Skinner, 270 P. 594 (Kan.1928))). It is undisputed that the buy-sell agreement and the operating agreement were both executed on the same day by the same parties and concern the same subject matter of the governing rules of the Company. Therefore, the two documents should be construed together.
Taking this into account, Robl Construction's interpretation of § 8 is contrary to Kansas law. Robl Construction argues that § 8 of the buy-sell agreement is in fact the very written consent required by § 6.03(I). This interpretation effectively reads § 6.03(I) out of the operating agreement. Why require the prior written consent of a member to be personally liable for Company debts in § 6.03(I) if such a section is unnecessary because § 8 of the buy-sell agreement acts as such prior written consent? Such an interpretation would lead to the absurd result of reading language out of the operating agreement in violation of Kansas contract interpretation principles. See Garvey Ctr., Inc. v. Food Specialties, Inc., 519 P.2d 646, 649–50 (Kan.1974) (“Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision.” (quotation and citation omitted)); Johnson Cnty. Bank v. Ross, 13 P.3d 351, 353 (Kan.Ct.App.2000) (“The law favors reasonable interpretations [of contracts], and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided.” (citing City of Manhattan v. Galbrath, 945 P.2d 10, 14 (Kan.Ct.App.1997))).
The more reasonable interpretation that harmonizes the two contract provisions understands that § 6.03(I) requires a written consent from a Member to be personally bound for any debt of the Company, but § 8 highlights a subset of these types of debts in which a lender would want added security of the Company's debt in the form of a member's personal guaranty. Presumably, a written personal guaranty under § 8 would also fulfill the requirements of § 6.03(I).7 Section 8 is not meant to fulfill § 6.03(I) and consequently write it out of the operating agreement; rather, § 8 is meant to provide a separate mechanism for the Company to acquire loans when the lender requires additional security to guarantee the loans.
Therefore, I would hold that Robl Construction has failed to present specific facts to show a triable issue for a jury as to whether § 6.03(I) was fulfilled. Further, as a matter of law, § 8 should not be interpreted as fulfilling § 6.03(I). Accordingly, I would affirm the district court's grant of summary judgment on this basis.
1. The parties varyingly refer to a revolving loan with multiple advances and multiple loans. Deferring to what we understand is Robl Construction's preferred characterization, we use the singular. See Young v. Allstate Ins. Co., 685 F.3d 782, 783, 784 (8th Cir.2012) (explaining at summary judgment, we must “view[ ] the evidence and draw[ ] all reasonable inferences in the light most favorable to [Robl Construction], the non-moving party”).
2. Though he equivocates some, for purposes of appeal Homoly concedes the money was a loan, stating “[t]he District Court recognized that Robl Construction selected to pursue its claims as only a loan and not as a capital contribution” and “[n]o material fact dispute exists concerning whether or not the monies were loans or capital contributions.” We thus do not consider that issue.
3. Homoly's claim that tax amendments he filed in 2011 “resolve [ ] any claim as to alleged tax benefits” and moot Robl Construction's argument that he received a benefit from the loan is without merit. That Homoly amended his taxes after denying liability for the loan does not deprive his prior actions of evidentiary value at trial. See Fed.R.Evid. 401.
4. Even if the district court erred, this court is not constrained by the district court's rationale. It is well settled that “this court may affirm for any reason supported in the record, even if that reason is different from the rationale of the district court.” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 1002 (8th Cir.2011) (citation omitted). Further, “[t]his court may affirm the district court even if it committed legal error in reaching the correct result.” Id. (citations omitted).
5. A breach-of-contract claim for a personal guarantee fails when the loan to be personally guaranteed is not valid. It fails because most jurisdictions (including Kansas) require a valid contract to exist as a necessary element of the claim. See Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan.2013) (citing Commercial Credit Corp. v. Harris, 510 P.2d 1322, 1325 (Kan.1973)). If the personal guarantee is invalidated because the principal loan contract is invalid, an enforceable contract does not exist between the guarantor and the lender.
6. The only place in which Robl Construction even hints to argue that it fulfilled § 6.03(D) is in § II.A of its Appellant's Brief, entitled “The monies Robl Construction loaned to the Company were loans Homoly consented to, not capital contributions.” (Emphasis added.) If Homoly indeed consented to the loan, this would fulfill the required prior consent of a Super–Majority–in–Interest because both he and Robl Construction consented to the Company taking on this debt. Upon closer examination, however, it is apparent that § II.A addresses the district court's finding that the money advanced by Robl Construction was a loan and not a failed capital contribution. Thus, Robl Construction does not argue that Homoly gave his prior consent to the loan itself. Instead, it argues that Homoly considered treating the monies as a loan rather than capital contributions.
7. The record offers an example of such a transaction. Both Homoly and Robl Construction signed personal guarantees for loans to the Company from the lender North American Savings Bank, F.S.B. This example is not meant to prove the intent of the parties. Instead, it shows how a written personal guaranty can satisfy both § 8 and § 6.03(I).


text:
Stephen E. Woods for the plaintiff.
Stephen Gordet for the defendants.
The plaintiff husband brought a complaint in the Probate Court against the defendants Levinson (his former wife) and Patsy F. Famiglietti, asking that the wife's conveyance of her interest in the former marital residence to Famiglietti be set aside and this interest conveyed to him. The judge dismissed the complaint "without prejudice to the filing of a petition or complaint seeking partition." Reading the husband's complaint favorably to him, Nader v. Citron, 372 Mass. 96 , 98 (1977), we conclude that he has alleged facts which, if proved, would entitle him to relief, and, therefore, we reverse.
We recite the facts as they appear from the husband's complaint, amendments thereto, and attached exhibits. The husband and wife were divorced in 1970. No provision was made in the divorce decree concerning the parties' martial residence or alimony for either party. The husband was ordered to pay support for the parties' three minor children (whose dates of birth do not appear in the record appendix), but that order was revoked when custody of the children was transferred from the wife to the husband in 1971.
It appears that the wife left the Commonwealth some time in 1970. Since her departure, the husband and the children have resided in the former marital home, which, after the divorce, was held by the husband and wife as tenants in common. See Bernatavicius v. Bernatavicius, 259 Mass. 486 , 490 (1927). On February 23, 1979, the wife conveyed by deed her interest in the property to Famiglietti. The husband, on May 1, 1979, brought this complaint. As originally filed, the complaint sought a transfer of the property by way of a division under G. L. c. 208, Section 34. Thereafter, the husband amended his complaint to allege that the wife's conveyance to Famiglietti was fraudulently made to defeat his request that the wife's interest in the property be awarded to him as alimony, which he also sought by his complaint.
On appeal, the husband concedes that his request for a division of the property was properly dismissed. See Hay v. Cloutier, 389 Mass. 248 , 252-254 (1983).
1. We treat the husband's amended complaint as a request for alimony from the wife under Section 34. See Kellermann v. Kellermann, 10 Mass. App. Ct. 856 (1980), and cases therein cited. Prior to the amendment of Section 34, by St. 1974, c. 565, specific property could be awarded a spouse for purposes of support, but not as a division. See Coe v. Coe, 313 Mass. 232 , 235 (1943); DuMont v. Godbey, 382 Mass. 234 , 235 (1981). In amending Section 34, the Legislature intended to "empower . . . [the] courts to deal broadly with property and its equitable division in ways not previously authorized." Bianco v. Bianco, 371 Mass. 420 , 422 (1976). Hence, St. 1974, c. 565, conferred upon the courts the power to make an equitable division of property in addition to that power already possessed, to transfer property for purposes of support. If the husband can demonstrate his need for alimony, cf., Davidson v. Davidson, 19 Mass. App. Ct. 364 , 366-367 (1985), it is within the power and discretion of the judge to transfer the wife's interest, if any, in the property to satisfy any alimony obligation that might be imposed.
2. Whether the wife has an interest in the property, as alleged by the husband, or whether her conveyance of that interest was honest can and should be determined in the same proceeding conducted on the husband's complaint for alimony. It does not appear from the pleadings and attached exhibits whether the conveyance by the wife to Famiglietti was somehow precipitated by an advance warning that she might have had concerning any intention by the husband to seek alimony from her, or whether the husband's complaint for alimony was prompted by her conveyance. Cf. DuMont v. Godbey, 382 Mass. at 237. There the court stated that "where a divorce is imminent, a spouse may be a `creditor' under the Uniform Fraudulent Conveyance Act, G. L. c. 109A, Section 1, entitled to complain of conveyances designed to frustrate the right to alimony or assignment of property." See also Tsomides v. Tsomides, 3 Mass. App. Ct. 750 (1975). However, it does not appear that at this time the husband is a creditor of the wife by reason of any judgment against her that he seeks to satisfy, such as in Foster v. Evans, 384 Mass. 687 , 691 (1981). Ultimately, the property may have to be partitioned under G. L. c. 241, Section 6. See Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64 , 65 (1983).
There is, however, no need to put the parties to multiple suits to resolve what is essentially one dispute. We recognize that a complaint "in equity to set aside a fraudulent conveyance . . . [is] not cognizable under general equity jurisdiction," Foster v. Evans, 384 Mass. at 691. See G. L. c. 215, Section 6, first paragraph. That does not mean, however, that the complaint was properly dismissed for want of jurisdiction. "[A] Probate Court judge faced with such a serious jurisdictional issue should not, in the future, dismiss a complaint on that ground. Instead, the proper procedure is for the judge to ask the Chief Administrative Justice to transfer the case, or the judge, or both, to the appropriate department of the Trial Court. See G. L. c. 211B, Section 9, inserted by St. 1978, c. 478, Section 110. See also G. L. c. 211, Section 4A. Cf. Glick v. Greenleaf, 383 Mass. 290 , 295 n.7 (1981)." Konstantopoulos v. Whately, 384 Mass. 123 , 129 (1981).
3. Accordingly, the judgment is affirmed as to Count I and reversed on Counts II and III.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
This module implements extensible arrays. All operations are purely applicative (no side-effects). The implementation, based on the implementation of Set, uses balanced binary trees, so that insertion, deletions, and updates take logarithmic time in the size of the array.
create d n creates a vec of length n, where each cell contains d.
Returns the length of the vec.
Tests whether a vec is empty or not.
get i v gets element i of vec v; the first element of v is element 0.
set i d v sets the element in position i of vec v to value d. The position must already exist.
append d v extends the vec v, by adding the element d at the end.
setappend d0 d i v sets the element in position i of v to value d, if v is long enough. Otherwise, it extends v with as many elements d0 as needed, then appends the value d in position i.
concat v1 v2 concatenates the vecs v1 and v2.
pop i v returns (e, v'), where e is the element in position i of vec v, and v' is obtained by removing e from v.
remove i v removes the element in position i of vec v.
insert i d v inserts element d in position i of vec v. All elements following i are shifted right by 1. If i is 0, then d is inserted in the first position of the vec. If i is length v, then d is inserted at the end of v, extending it by 1.
sub i j v returns the sub-vec of v consisting of all elements with indices k with i <= k < j.
iter f v applies f to all elements in v. The elements are passed to f in increasing index order.
Similar to iter, but the function is passed also the index of the element to which it is applied.
reviter f v applies f to all elements in v. The elements are passed to f in decreasing index order.
rangeiter f i j v applies f to all elements in v that have index k with i <= k < j. The elements are passed to f in increasing index order.
rangeiteri f i j v is the same as rangeiter f i j v, but f is applied also to the index of each element.
revrangeiter f v i j applies f to all elements in v that have index k with i <= k < j. The elements are passed to f in decreasing index order.
revrangeiteri f i j v is the same as revrangeiter f i j v, but f is applied also to the index of each element.
map f v returns a vec, obtained by applying the function f to each element of v. The elements are passed to f in increasing order.
mapi f v is the same as map f v, but the function f is applied also to the index of each element.
fold f v a computes (f dN ... (f d0 a)...), where d0 ... dN are data in the vec, in increasing order.
foldi f v a computes (f N dN ... (f 1 d0 a)...), where d0 ... dN are data in the vec, in increasing order.
rangefoldi f i j v folds function f over the elements in the range i, i+1, ..., j-1 of the vector v. The function f is passed the index of the vec element, the element itself, and the accumulation. The folding proceeds in increasing index order.
revrangefoldi f i j v is equivalent to rangefoldi f i j v, except that the folding proceeds in decreasing, rather than increasing, index order.
of_list l returns a vec consisting of the elements of l, in the same order.
to_list v returns a list containing the elements of vec v, in the order in which they appear in v.
of_array a returns a vec consisting of the elements of array a, in the same order.
to_array v returns either None, if the vector is empty, or Some of an array containing the elements of vec v, in the order in which they appear in v. The option type is needed, as there is no way to make an array of zero length without specifying one element of the array.
visit_post ve vn a implements a post-order visit to the tree representation of a. ve is the evaluation of an empty tree. For an internal node with data d and left and right children that evaluate to l, r, the function returns vn l d r.
visit_in ve vl vr a implements an in-order visit to the tree representation of a. ve is the evaluation of an empty tree. For an internal node with data d and left and right children cl, cr, the function returns vr (vl cl' d) cr', where cl' is the evaluation of cl, and cr' is the evaluation of cr. Moreover, cr' is computed only after vl cl' d is computed.

matches: v. v. v. v. v. v. v. v. v.


APPEAL from a judgment and orders of the circuit court for Dodge County: Brian A. Pfitzinger, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before Higginbotham, Sherman and Blanchard, JJ.
¶1 Sherman, J. This appeal arises out of the formal administration of the Estate of Margaret Elegreet (the Estate), which took place over a period of approximately four and one-half years. During the Estate’s formal administration, the beneficiaries were embroiled in a separate civil lawsuit regarding the disbursement of Elegreet’s personal property, the original appointed personal representative died, a successor personal representative was appointed, and gift taxes went unpaid for tax years 2001 and 2002, resulting in significant fees and interest owing to the Internal Revenue Service. The length of time it took to discover and pay the delinquent gift taxes and blame for that oversight became a significant theme throughout the final years of the administration.
¶2 Eventually, in February 2010, the probate court entered a judgment approving the final account and settlement of the Estate, which included a payment of attorney’s fees for the personal representative, and entered an order discharging the personal representative. Nora DeSalvo, a beneficiary of the Estate, appeals both the judgment and orders. Because the Estate had no assets remaining, the court entered an order requiring each beneficiary to deposit $5,000 with the clerk of the court to finance the appeal. DeSalvo appeals that order as well.
¶3 On appeal, DeSalvo challenges the following decisions by the probate court with respect to the final accounting of the estate: (1) the court’s determination as to the amount of fees the personal representative is entitled to; (2) the court’s decision not to reduce the personal representative’s compensation by the amount of interest and fees that accrued on the delinquent gift taxes during his tenure as personal representative and by an unspecified amount in light of his performance; (3) the court’s decision not to award a larger amount of fees to the attorneys DeSalvo privately retained during the course of the administration; and (4) the court’s decision not to assess those attorney fees against the personal representative. DeSalvo also appeals the court’s discharge of the personal representative and decision not to reappoint him as personal representative for the present appeal, as well as the court’s order that each beneficiary deposit $5,000 with the clerk of court to finance this appeal. For the reasons discussed below, we affirm in part and reverse in part.
¶4 Margaret Elegreet died testate on December 2, 2002. In her last will, Margaret named her three adult children, DeSalvo, Karen (Carrie) Walls, and Steven Elegreet, as equal beneficiaries of her estate. Disputes arose among the beneficiaries regarding the distribution of Margaret’s personal property and a civil action between those parties ensued. The probate court directed that a formal administration of the Estate be conducted and the court appointed Attorney John Stoltz as personal representative of the Estate.
¶5 In April 2006, Stoltz died and the court appointed Attorney Karl Green, a law partner of Stoltz, as successor personal representative of the Estate. In June 2007, the court authorized an interim payment to Green for his fees and expenses up until May 11, 2007, in the amount of $7,703.50.
¶7 In March 2009, Green filed a final account reflecting a payment to the U.S. Treasury in the amount of $16,433.07, which included interest and fees on the delinquent 2001 and 2002 gift taxes. The final account also reflected the interim attorney’s fees payment of $7,703.40 and a request by Green for an additional $5,136.60 in fees and expenses.
¶8 A hearing was held in May 2009 regarding the March 2009 final accounting. At the hearing, DeSalvo asked that the court order that Green personally pay $5,000 in interest on the delinquent gift taxes because it was partly Green’s fault that interest had accrued on the delinquent taxes. The court declined to enter such an order at that time. However, after a discussion between the court and the parties regarding the delinquent taxes and Green’s efforts to resolve that issue, the court directed DeSalvo’s attorney, Thomas Olsen, to determine who was responsible for interest and penalties on the delinquent taxes, at various times since 2001, and in what amount.
¶9 In November 2009, Green filed another final accounting. That accounting reflected that Green had issued two additional payments to the U.S. Treasury, one in the amount of $4,459.08 for “2001 Form 709 Penalty/Add[itional] Interest,” and one in the amount of $3,051.34 for “2002 Form 709 Penalty/Add[itional] Interest.” Green also requested an additional $5,590 in fees. All of Green’s fees were calculated at an hourly rate of $200.
¶10 At a hearing on the November 2009 final accounting, the court addressed, among other things: (1) the amount of compensation Green should receive; (2) whether Green should be penalized for the fees and interest that the Estate incurred because the 2001 and 2002 gift tax returns were not timely paid; and (3) whether and to what extent DeSalvo should be reimbursed for legal expenses she paid her attorney, Olsen, and expert witness, Franklin. With respect to Green’s fees, the court found that the amount of fees requested by Green was reasonable. Nevertheless, it reduced the total fees to be awarded to Green by $1,550.73, which was the amount of interest incurred by the Estate for the delinquent 2001 and 2002 gift taxes while Stoltz served as personal representative of the Estate. The court declined to assess any additional sums against Green. The court also ruled that the Estate was to reimburse DeSalvo $1,580,25 of the $3,1675.50 in fees and expenses DeSalvo paid Franklin, and awarded Olsen a “token” amount of $1,000 in attorney fees.
¶11 In January 2010, Green filed another final accounting, which incorporated the court’s rulings at the November 2009 hearing, and which reflected that the three beneficiaries would each receive a distribution of approximately $455.20. In February 2010, the court entered a final judgment closing the estate and a separate order discharging Green as personal representative.
¶12 DeSalvo appeals the final judgment and the order discharging Green as personal representative. In May 2010, the probate court entered an order directing each of the beneficiaries of the Estate to deposit $5,000 with the court to finance the appeal. DeSalvo appeals that order as well.
¶13 Additional facts will be discussed below as necessary.
¶14 On appeal, DeSalvo contends that the probate court abused its discretion in the following five respects: (1) determining that Green should be paid by the Estate at his hourly rate as an attorney rather than the personal representative rate under Wis. Stat. § 857.05(2); (2) declining to assess against Green the interest that accrued on the delinquent 2001 and 2002 gift taxes during the time period he served as personal representative of the Estate; (3) refusing to award a larger amount of attorney fees to Franklin and Olsen; (4) awarding Franklin and Olsen fees out of the Estate; and (5) discharging Green as personal representative of the Estate and refusing to reappoint Green as personal representative in the present appeal. DeSalvo also contends that the court erred as a matter of law in directing each of the beneficiaries of the estate to deposit $5,000 with the court to finance this appeal. We address each of DeSalvo’s contentions below.
If the personal representative or any law firm with which the personal representative is associated also serves as attorney for the decedent’s estate, the court may allow him or her either executor’s commissions, (including sums for any extraordinary services as set forth in sub. (2)) or attorney fees. The court may allow both executor’s commissions and attorney fees, and shall allow both if the will of the decedent authorizes the payments to be made.
¶16 In the amended final accounting filed with the court in November 2009, Green requested a final payment of fees totaling $5,590 for work done subsequent to May 11, 2007, the date to which he had previously been paid. Green charged the estate $200 per hour for his services. Green did not bill any of his services at the personal representative rate authorized under Wis. Stat. § 857.05(2).
¶17 At the November 2009 hearing, DeSalvo disputed the amount of fees to which Green was entitled. Limiting its review to those fees requested by Green in the November 2009 final accounting, the probate court found that the amount requested by Green was reasonable. However, it reduced the total amount of fees by $1,550.73, which the court found to be the amount of interest and fees on the delinquent gift taxes attributable to Green’s predecessor, Stoltz.
¶18 DeSalvo argues that the probate court erroneously exercised its discretion when it awarded Green his requested amount of fees less $1,550.73, because it failed to explain why Green was entitled to be compensated entirely at his attorney rate. Relying on Sherman v. Hagness, 195 Wis. 2d 225, 536 N.W.2d 133 (Ct. App. 1995), DeSalvo argues that the probate court should have determined which of Green’s billed services are customarily performed by an attorney and authorized only those services to be billed at Green’s attorney rate. The remainder, according to DeSalvo, should have been paid at the rate authorized by Wis. Stat. § 857.05(2).
¶19 In Sherman, we explained that although Wis. Stat. § 857.05(3) allows a personal representative who is also an attorney to be compensated at an hourly attorney fee for legal services provided and/or as a personal representative under § 857.05(2), it does not “empower the probate judge, in his or her discretion, to allow the attorney who also serves as personal representative to bill the estate at his or her customary hourly rate for all services.” Sherman, 195 Wis. 2d at 229-30 (emphasis added). Instead, “‘[i]n probate proceedings the compensation for legal services rendered should be limited to those of a strictly professional character.’” Id. at 230 (quoted source omitted).
¶20 The probate court in this case reviewed Green’s final bill at the November 2009 hearing and found the charges to be “reasonable under the circumstance[s] of this case.” In reaching that decision, the court recognized that Green had not billed the Estate for all of his involvement with the estate. For example, Green had not billed the Estate for his appearance at the November 2009 hearing.
¶21 A proper exercise of discretion contemplates that the court explain its reasoning. Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. Although the court explained that it found Green’s bill to be reasonable in light of the circumstances, it did not explain how or why all of the services provided by Green, including those not billed, were legal in nature. When the court does not explain its reasoning, we may search the record to determine if it supports the court’s discretionary decision. Id.
¶22 The evidence in the record relating to the fees requested by Green in the November 2009 final accounting includes Green’s billing statement and statements made by Green at the November 2009 hearing. The billing statement itemizes Green’s charges and includes a brief description of each service provided by Green for which the Estate is being billed. However, we are unable to say from those brief descriptions, with any degree of certainty, which of those services provided by Green were legal services.
¶23 At the hearing, Green advised the court that litigation between the beneficiaries took place until April 2008, and that “effectively almost all of the work [for the Estate prior to when the April civil litigation was resolved] … relates specifically to litigation work that an attorney would be paid for.” According to Green, after April 2008, his work “was in pursuit of [the delinquent] tax problem.” At that point, according to Green, he was “trying to assist the beneficiaries in resolving the tax issues which [he thought] require[d] an attorney or as the Court found out the assistance of an expert accountant.” Green advised the court that in his view, it “is reasonable to state” that his bill was “essentially for attorney’s fees.” However, a review of Green’s billing statement suggests that some of the charges after April 2008 are not for legal services, but rather services customarily performed by a personal representative. For example, on January 29, 2008, Green billed the Estate for a letter to DeSalvo’s attorney including receipts for the sale of a vehicle belonging to the Estate and an interest income statement. We fail to see, from the brief description provided by Green, how this charge relates to the delinquent tax issue, or why it should be considered a legal service.
¶24 Because we are unable to determine that the record supports the probate court’s decision, we conclude that the court erroneously exercised its discretion in authorizing that Green be compensated entirely at an attorney rate. On remand, we direct the court to make specific findings as to which of Green’s charges were for legal services and which, if any, were for his services as personal representative.
¶25 The probate court reduced Green’s fees by $1,550.73, which was the amount of interest and fees for the delinquent taxes that accrued while Stoltz served as personal representative of the Estate.
¶26 DeSalvo argues that the probate court failed to properly exercise its discretion when it failed to reduce Green’s compensation by an unspecified amount in light of Green’s performance. According to DeSalvo, the court “ignored evidence of Green’s poor performance as a personal representative and fiduciary with regard  to managing the tax obligations of the [E]state and  his handling of the notice of tax delinquency from the IRS.” DeSalvo argues that the court “should  have found Green derelict in his duty as a fiduciary and even remiss in exercising the ‘ordinary care and good faith’ required” by Green.
¶27 DeSalvo’s argument is undeveloped. She has made no showing that Green should have been aware of the delinquent tax issue at an earlier date, nor has she shown in what manner Green’s performance was, as she alleges, “derelict” or “remiss in exercising  ‘ordinary care and good faith.’” We therefore do not further address this issue. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (an appellate court may decline to address issues that are insufficiently developed).
¶28 DeSalvo also contends that the probate court failed to properly exercise its discretion when it failed to reduce Green’s fees by the amount of interest and fees that accrued on the delinquent gift taxes while Green served as personal representative. In an exhibit to the probate court, DeSalvo estimated that the amount of interest and penalties that accrued while Green served as personal representative is $4,249.54.
¶30 DeSalvo argues that Green had a duty under Wis. Stat. § 857.03 to pay the delinquent taxes and that Green failed to carry out his duty in good faith and with reasonable care, which cost the Estate additional interest and fees on the delinquent taxes. According to DeSalvo, Green did not act in good faith and with reasonable care because Green failed to act on the tax issue until September 2008, and took ten months to pay the taxes after Franklin, DeSalvo’s tax expert, confirmed the amount of the Estate’s gift tax liability.
¶32 We have reviewed the record and DeSalvo’s arguments, and conclude that the circuit court’s findings were not clearly erroneous. See Wis. Stat. § 805.17(2) (we accept a circuit court’s findings of fact if not clearly erroneous). DeSalvo has not shown that Green’s fees should have been reduced for any other reason. Accordingly, we conclude that the court did not erroneously exercise its discretion by not reducing Green’s compensation by the amount of interest and fees that accrued on the delinquent gift taxes during the time period he served as personal representative of the estate.
¶34 DeSalvo contends that the probate court erroneously exercised its discretion by failing to award larger amounts of attorney’s fees for the services performed by Attorneys Franklin and Olsen, which she maintains directly benefited the Estate, because she was a prevailing party.
A court’s decision whether to allow attorney fees under Wis. Stat. § 879.37 to a prevailing party has two components. First, the court must decide whether the party seeking reimbursement of attorney fees is a prevailing party. This decision involves the application of facts to a particular legal standard, which is a conclusion of law that we review independently. If the court concludes that the party is a prevailing party, then the court may, but need not, award attorney fees. This decision calls for an exercise of discretion. We affirm a trial court’s discretionary decision if the court applied the correct law to the relevant facts and reasoned its way to a reasonable conclusion.
¶36 DeSalvo argues that she is a prevailing party because “as a result of the work performed by … Franklin, and by her attorney, [Olsen,] the [e]state realized significant benefits.” With respect to Attorney Franklin, she asserts that all of Franklin’s charges submitted to the probate court for reimbursement were for services that directly assisted Green, and thus benefitted the Estate. However, she does not explain how or why the probate court was wrong in its findings regarding the charges it rejected as not benefiting the Estate. With respect to Olsen, she merely asserts that the court should have awarded a larger amount of fees in light of the court’s acknowledgement that Olsen’s services were invaluable to the estate.
¶37 DeSalvo’s arguments are conclusory and undeveloped. This court does not consider conclusory assertions and undeveloped arguments. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56. Accordingly, we do not address this issue further. See id.
¶38 The probate court determined that the reimbursement for Franklin’s and Olsen’s fees be made from Estate funds. DeSalvo contends that the attorney fees should have instead been assessed against Green because Green was “derelict” in his duty, or, in the alternative, because she is a prevailing party. See Wis. Stat. § 879.37. We disagree.
¶39 Wisconsin Stat. § 879.37 does not authorize a court to order a personal representative to pay a prevailing party’s attorney fees. Section 879.37 provides that “[r]easonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters ....” (Emphasis added.) It does not provide that the fees may be awarded against the personal representative. Reducing the award of attorneys fees to Green would have had the same effect, but we have already determined (in paragraph 32) that the circuit court did not abuse its discretion in deciding not to do so.
¶41 DeSalvo contends the probate court erroneously exercised its discretion when it failed to reappoint Green as personal representative, even though Green had indicated that he would not accept such an appointment. According to DeSalvo, Green would have been “eminently fair to the estate.” She also argues that the probate court’s basis for not appointing Green—Green’s claimed lack of professional competency to oversee the appeal—was pure speculation. DeSalvo acknowledges that even if we agree that Green should have been reappointed as personal representative, it would be impractical to reappointment him at this point. However, she asks that in the event that this case is remanded, Green should be reappointed.
¶42 The appointment of the personal representative for the Estate for the present appeal was a matter of discretion for the probate court. See First Wis. Nat’l Bank of Oshkosh v. Circuit Court for Fond Du Lac County, 167 Wis. 2d 196, 200, 482 N.W.2d 118 (Ct. App. 1992). DeSalvo cites no legal authority supporting her argument that it was an erroneous exercise of the probate court’s discretion not to reappoint Green as personal representative of the Estate for the present appeal when he has declined such representation on the basis of lack of competency. We need not consider arguments unsupported by reference to legal authority. Kruczek v. DWD, 2005 WI App 12, ¶32, 278 Wis. 2d 563, 692 N.W.2d 286. Furthermore, Green had the right, and in fact the obligation, to decline reappointment if he did not believe that he was competent to represent the Estate on appeal. See SCR 20:1:1 (an attorney is required to provide competent representation to his or her client); SCR 20:6:2(a) (an attorney may avoid an appointment by the court if his or her representation of the client “is likely to result in violation of the Rules of Professional Conduct”). Reappointment of Green as personal representative and Green’s acceptance of that appointment may have been a violation of the Rules of Professional Conduct. Accordingly, we conclude that the court did not erroneously exercise its discretion, and we decline to order his reappointment on remand.
¶44 DeSalvo contends that we should vacate the court’s order directing the beneficiaries to deposit $5,000 with the clerk of court because the court lacked legal authority to require that she and the other two beneficiaries use their personal funds to finance litigation pertaining to the Estate.
¶45 The Estate does not dispute DeSalvo’s contention that the court lacked the legal authority to require the beneficiaries to use personal funds to finance the Estate’s litigation expenses on appeal. It is thus taken as admitted. See Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis. 2d 848, 650 N.W.2d 75 (argument asserted by the appellant and not disputed by the respondent may be taken as admitted). However, the Estate argues that we should conclude that the probate court nevertheless had the equitable power to require that each of the beneficiaries deposit $5,000 with the court clerk to finance this appeal because the beneficiaries had, in the past, received substantial assets from Margaret’s trust, the beneficiaries had been involved in extensive litigation that drained the Estate financially, and because the court was obligated to appoint a successor personal representative of the Estate, which had no assets from which the newly appointed personal representative could be paid. Aside from general statements affirming that the probate court has equitable authority, the Estate fails to cite to any legal authority that supports its argument.
¶46 We have not been presented with any legal authority which would allow the circuit court through its equitable power to obligate an appellant, and parties not directly involved in an appeal, to pay an appellee’s litigation expenses irrespective of the outcome, and we were unable to find any in our independent research. We therefore conclude that the court did not have such authority.
¶47 However, having reached that conclusion, we cannot say as a matter of law what amount of the $5,000 each beneficiary was obligated to contribute was personal funds, and what amount should be considered disbursements from the Estate available for return to the Estate. See Wis. Stat. § 863.01 (prior distributions may be required to be returned to an estate); Wis. Stat. § 863.31(1) (final judgment may be reopened). It appears from the record that the beneficiaries received disbursements from Margaret’s trust, partial disbursements of property from the Estate, and a cash disbursement from the Estate when the Estate was closed. Amounts received by the beneficiaries from Margaret’s trust were not part of the Estate and are thus personal assets of the beneficiaries. However, the value of any property or cash disbursements received by the beneficiaries from the Estate were assets of the Estate, which should be returned to the Estate to pay the additional expenses the Estate incurred during this appeal. On remand, we direct that the circuit court make appropriate factual findings regarding what amount of prior distributions from the Estate the beneficiaries should return to the Estate, if any, and exercise its discretion accordingly.
¶48 For the reasons discussed above, we conclude that the circuit court erroneously exercised its discretion when it found that Green should be compensated entirely at his attorney rate of compensation. We conclude that the court did not erroneously exercise its discretion by failing to reduce Green’s compensation based on his performance or by the amount of interest and fees that accrued on the delinquent gift taxes during the period he served as personal representative of the Estate. We also conclude that the court did not erroneously exercise its discretion in failing to award DeSalvo a larger amount of reimbursement for the legal fees she paid Franklin or a larger amount of attorney fees for Olsen. Nor did the court err in determining that the reimbursement for Franklin’s and Olsen’s fees be paid from the Estate’s funds. We further conclude that the court did not erroneously exercise its discretion in discharging Green as personal representative of the Estate or by refusing to reappoint him personal representative for purposes of this appeal. Finally, we conclude that the court erred to the extent that it required the beneficiaries to finance the Estate’s expenses for this appeal with their personal funds. We remand this proceeding to the circuit court for further proceedings consistent with this opinion.
By the Court.—Judgment and orders affirmed in part; reversed in part and cause remanded with directions.
(2) Services. Subject to the approval of the court the personal representative shall be allowed for his or her services commissions computed on the inventory value of the property for which the personal representative is accountable less any mortgages or liens plus net principal gains in the estate proceedings at a rate of 2% or a rate that the decedent and the personal representative, or the persons who receive the majority interest in the estate and the personal representative, agree to in writing; and such further sums in cases of unusual difficulty or extraordinary services as the court determines reasonable. If a personal representative is derelict in duty, his or her compensation for services may be reduced or denied.
 We have recalculated the billable hours that the court found to be directly related to assisting Green and it appears that the court, as well as DeSalvo’s counsel, slightly miscalculated. The correct total is 9.02.
Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
 DeSalvo calculates her personal contribution to be $4,544.80, $5,000 less the $455.20 disbursement she received from the Estate.
 The Estate also argues that under Wis. Stat. § 879.33, the probate court had the authority to require DeSalvo to deposit with the court a bond for costs that might be awarded by the court against her, and asks us to hold her responsible for all of the Estate’s costs in defending this appeal. We decline to do so, however, since DeSalvo was partially successful in this appeal.


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Marc Wefers is a Principal in the Boston office of Fish & Richardson. He joined the firm in 1996, having previously served as an associate, patent agent, and technology specialist with the firm.
Marc’s practice focuses on patent strategy, including patent prosecution, adversarial proceedings before the United States Patent and Trademark Office (USPTO), and litigation, especially in the technical areas of physics, optics, and chemistry. Marc has been lead counsel on four interferences before the USPTO, obtaining a favorable judgment in every instance, one of which was appealed and affirmed at the United States Court of Appeals for the Federal Circuit. Marc has also been lead counsel on ten inter-partes review (“IPR”) proceedings at the USPTO, two for Petitioner and eight for Patent Owner. The two IPR proceedings on behalf of a Petitioner led to the cancelation of all requested claims, and the eight IPR proceedings for a Patent Owner led to favorable settlements. Prior to such AIA proceedings Marc was involved in many reexamination proceedings at the USPTO. Marc has also been the technical lead in various patent litigations relating to fiber lasers, fiber amplifiers, and microlithography exposure systems.
Representative clients and technologies include: Carl Zeiss SMT GmbH (optical microlithography equipment), Fujifilm Electronic Materials USA, Inc. (semiconductor chemistry), IPG Photonics Inc. (fiber lasers and amplifiers), Osram Opto Semiconductors GmbH (light-emitting diodes), WiTricity Inc. (wireless power transfer), Thomas Swan & Co. Ltd. (optical networking equipment), and Zygo Corporation (optical interferometry). Several of Marc’s former start-up clients were acquired on favorable terms: Ahura Scientific Inc. (acquired by Thermo Fisher Scientific in 2010 for $145 million) and Rhythmia Medical Inc. (acquired by Boston Scientific in 2012 for $90 million, and an additional $175 million in contingent payments).
“Space-time profiles of shaped ultrafast optical waveforms,” with K.A. Nelson, IEEE J. Quan. Elec. 32, 161 (1996).
“Generation of high-fidelity programmable ultrafast optical waveforms,” with K.A. Nelson, Opt. Lett. 20, 1047 (1995).
Inventor on two patents: M.M. Wefers, K.A. Nelson, “Multi-Dimensional Shaping of Ultrashort Optical Waveforms,” U.S. Patent No. 5,682,262; and M.M. Wefers, K.A. Nelson, “Mask Design for High Fidelity Generation of Programmable Femtosecond Waveforms Using Liquid Crystal Spatial Light Modulators,” U.S. Patent No. 5,719,650.
Prosecuted and analyzed patent applications in areas such as optics, interferometry (e.g., distance measuring interferometry and surface profiling interferometry), spectroscopy (including medical diagnostic techniques and material characterization techniques), biomedical imaging, optical waveguides, optical routers, semiconductors, mass spectroscopy, liquid crystal devices, chemical vapor deposition, amorphous diamond coatings, medical devices, tissue engineering, microlithography, light-emitting diodes, and wireless energy transfer.
Experience with patent prosecution, patent portfolio management, contentious matters before the United States Patent & Trademark Office (USPTO) (including ex parte reexamination, inter partes reexamination, interference, and inter-partes review), due diligence on patent portfolios, patent opinions, patent litigation, and licensing.
Technical lead for Carl Zeiss SMT AG in litigation relating to optical exposure systems for microlithography.
Technical lead for defendant IPG Photonics in several litigations relating to fiber lasers and fiber amplifiers, including in related proceedings in Europe and Japan.
Counsel for Appellee Shafer (real party Carl Zeiss SMT) in appeal by Omura (real party Nikon Corp.) from adverse decision by BPAI in Interference No. 105,678 relating to optical projection objectives used in microlithography.
IPR2013-00362 – Carl Zeiss SMT GmbH v. Nikon Corp.
IPR2013-00363 – Carl Zeiss SMT GmbH v. Nikon Corp.
Lead counsel for Carl Zeiss SMT before the PTAB in inter-partes review petitions relating to microlithography patents owned by Nikon, both of which led to final PTAB decision canceling all claims for which IPR was requested.
IPR2014-00460 – Finisar Corp. v. Thomas Swan & Co. Ltd.
IPR2014-00461 – Finisar Corp. v. Thomas Swan & Co. Ltd..
IPR2014-00462 – Finisar Corp. v. Thomas Swan & Co. Ltd.
IPR2014-00465 – Finisar Corp. v. Thomas Swan & Co. Ltd.
IPR2014-01381 – Fujitsu Network Communications, Inc. v. Thomas Swan & Co. Ltd.
IPR2014-01382 – Fujitsu Network Communications, Inc. v. Thomas Swan & Co. Ltd.
IPR2014-01383 – Fujitsu Network Communications, Inc. v. Thomas Swan & Co. Ltd.
IPR2014-01384 – Fujitsu Network Communications, Inc. v. Thomas Swan & Co. Ltd.
Lead counsel for Thomas Swan & Co. Ltd. as Patent Owner in several IPR proceedings relating to optical networking equipment, all of which settled thereby leaving the patents in force.
Lead counsel for Shafer (real party Carl Zeiss SMT) against Omura (real party Nikon Corp.) in several patent interferences before the BPAI at the USPTO relating to optical projection objectives used in microlithography.
Counsel for Carl Zeiss SMT in various inter partes reexaminations relating to optical systems for microlithography.

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