MISSION RES. v. Triple Net Properties

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

MISSION RESIDENTIAL, LLC                    OPINION BY
                                  SENIOR JUSTICE CHARLES S. RUSSELL
v.   Record No. 062250                   January 11, 2008

TRIPLE NET PROPERTIES, LLC


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Gaylord L. Finch, Judge∗

      This is an appeal from an order denying a motion to stay

arbitration proceedings pursuant to Code § 8.01-581.02(B).

                         Facts and Proceedings

      The facts are not in dispute.    In 2004, Triple Net

Properties, LLC (Triple) was a firm engaged in the business of

syndicating commercial properties for sale to investors as

real estate securities.     Mission Residential, LLC (Mission)

was a firm with expertise in locating, evaluating, purchasing

and managing multi-family apartment properties.     The two

firms, which were otherwise unrelated, entered into a joint

venture for the purpose of identifying, purchasing, managing

and selling multi-family properties for investors seeking to

avail themselves of the tax advantages offered by Section 1031




      ∗
       The record shows that Judge J. Howe Brown heard the case
and made the ruling that is the subject of this appeal. Judge
Gaylord L. Finch later entered the amended order from which
the appeal is taken. Judge M. Langhorne Keith subsequently
entered an order denying a stay of arbitration pending appeal.
of the Internal Revenue Code, 26 U.S.C. § 1031, for like-kind

exchanges of qualifying properties.

     In order to accomplish that purpose, Mission and Triple

agreed to form a limited liability company named NNN/Mission

Residential Holdings, LLC (Holdings) and executed an

“Operating Agreement” for Holdings dated “as of October 1,

2004.”   The operating agreement provides that Mission and

Triple are to be the sole members of Holdings, with equal

membership interests, and are to manage Holdings jointly.    The

sole question presented by this appeal is the effect of

Section 13.9 of the operating agreement, which provides in

pertinent part:

     “Disputes. The Members shall in good faith use
     their best efforts to settle disputes regarding
     their rights and obligations hereunder. All
     disputes that the parties have failed to resolve
     shall be submitted to arbitration. All arbitration
     to resolve a dispute shall be conducted in
     accordance with the provisions of this Section 13.9
     and to the extent not inconsistent therewith, the
     Commercial Arbitration Rules of the American
     Arbitration Association (“AAA”) . . . . The
     arbitrator’s award shall be final, binding and not
     subject to appeal.”

     In March 2006, Triple commenced an arbitration proceeding

against Mission, asserting a direct claim for breach of

contract and also a derivative claim against Mission on behalf

of Holdings.   The arbitrator ruled that Triple lacked standing

to assert the direct claim, but allowed Triple’s derivative



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claim on behalf of Holdings to go forward.    In August 2006,

Mission brought this action in the circuit court, seeking a

declaratory judgment that there was no agreement to arbitrate

disputes between Holdings and Mission, requesting an order to

stay the arbitration proceeding pursuant to Code § 8.01-

581.02(B), and seeking other relief.

     Mission asked the arbitrator to defer a ruling on the

arbitrability of Triple’s derivative claims pending a judicial

determination of that issue, but the arbitrator declined to do

so, and on August 29, 2006, ruled that the derivative claims

were arbitrable.   The arbitrator based his ruling on Rule R-

7(a) of the Commercial Arbitration Rules of the American

Arbitration Association, which was incorporated by reference

in Section 13.9 of the operating agreement.   Rule R-7(a) makes

the arbitrator the sole judge of the issue of arbitrability.

     In October 2006, after a review of the pleadings,

exhibits and arguments of counsel, the circuit court ruled

that the arbitrator had correctly decided the issue of

arbitrability.   The court entered an order denying the motion

to stay arbitration and dismissing Mission’s complaint.    We

awarded Mission an appeal.

                             Analysis

     The law of contracts governs the question whether there

exists a valid and enforceable agreement to arbitrate.    Such


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an agreement must contain the essential elements of a valid

contract at common law.     The question whether such a contract

exists is a pure question of law, to which we apply a de novo

standard of review.   Phillips v. Mazyck, 273 Va. 630, 635-36,

643 S.E.2d 172, 175 (2007) (citations omitted).

     “A party cannot be compelled to submit to arbitration

unless he has first agreed to arbitrate.”      Doyle & Russell,

Inc. v. Roanoke Hosp. Ass’n, 213 Va. 489, 494, 193 S.E.2d 662,

666 (1973) (citations omitted).       When the question before the

court is whether the parties have agreed to arbitrate, there

is no presumption in favor of arbitrability.      Rather, the

party seeking arbitration has the burden of proving the

existence of the agreement.    See First Options of Chicago,

Inc. v. Kaplan, 514 U.S. 938, 945-46 (1995).       A presumption in

favor of arbitrability arises only after the existence of such

an agreement has been proved, and the remaining question is

whether the scope of the agreement is broad enough to include

the disputed issue.   Id.    Here, Triple bore the burden of

proving that Mission had contracted to arbitrate Mission’s

disputes with Holdings.

     We adhere to the view that the public policy of Virginia

favors arbitration.   TM Delmarva Power, L.L.C. v. NCP of Va.,

L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002).

Nevertheless, that policy does not impair the constitutional


                                  4
right of a party to have access to the courts, including the

right to a jury trial if requested, unless that party has, by

contract, voluntarily waived those rights.

     Triple argues that the operating agreement committed the

parties to that agreement, Mission and Triple, to arbitrate

all "disputes regarding their rights and obligations

hereunder,” and that Triple’s derivative claim was nothing

more than a dispute regarding Mission’s duties under the

operating agreement.   We do not agree.   Triple’s argument

ignores the separate existence of Holdings, which was not a

party to the operating agreement.

     Like a corporation, a limited liability company is a

legal entity entirely separate and distinct from the

shareholders or members who compose it.   Code §§ 13.1-1009, -

1019; C.F. Trust, Inc. v. First Flight Ltd. P’ship, 266 Va. 3,

9, 580 S.E.2d 806, 809 (2003).   A derivative action is an

equitable proceeding in which a member asserts, on behalf of

the limited liability company, a claim that belongs to that

entity rather than the member.   Code § 13.1-1042.   The

derivative claims asserted by Triple belonged to Holdings, not

to Triple.   Little v. Cooke, 274 Va. 697, 709, 652 S.E.2d 129,

136 (2007); Simmons v. Miller, 261 Va. 561, 573, 544 S.E.2d

666, 674 (2001) (citation omitted).   A party asserting a

derivative claim is not the real party in interest, but is “at


                                 5
best the nominal plaintiff.”    Ross v. Bernhard, 396 U.S. 531,

538 (1970); see also Little, 274 Va. at 709, 652 S.E.2d at 136

(citing Mount v. Radford Trust Co., 93 Va. 427, 431, 25 S.E.

244, 245 (1896)).   Although Mission and Triple might have

chosen to employ language that would have committed them to

arbitrate their disputes with Holdings, they did not do so.

Thus, there was no contractual undertaking by which Mission

had agreed to arbitrate any dispute with Holdings.

                           Conclusion

     Because Triple failed to carry its burden of proving the

existence of an agreement by Mission to submit to arbitration

its disputes with Holdings, we will reverse the judgment

appealed from and remand the case for further proceedings

consistent with this opinion.

                                           Reversed and remanded.




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