good morning may it please the court my name is kelsey o'donnell i represent plaintiff appellant robel construction incorporated in this matter today we are asking the court of appeals to reverse the lower court's grant summary judgment in favor of defendant and your homily and against robel construction on its breach of contract claim the waters have been somewhat muddied but today the issues before the court are fairly straightforward considering all the evidence in the c and second if so does this agreement violate the operating agreement or the kansas statute of frauds it is are also be an issue as to whether or not there's actually been the type of long  yes it's a valid loan though that's not necessarily the burden we have to carry in proving that it's a valid one today it's our position is that the e mail from and your family in which he said i would prefer th money from all will be considered a loan and you guys get paid for it repaid with interest taken with the financial quarterly statements that were sent to hamley over a four and a half year period in which this money was categorized as a liability and treated as a loan by the company is sufficient to at the very least raise a reasonable inference that it was a valid one but you quoted his statement with that in mind i guess i would prefer not exactly unequivocal language particularly when followed by if steve would rather be put in a capital call however i will go ahead and write the check it's not unequivocal but our position is that there are at least various reasonable interpretations that could be taken from his statement especially when you consider the fact that the quarterly financial treatment the quarterly financial statements treated these monies as a loan it's our infer that in fact the decision was made to borrow funds from roble construction it's our position that the two thousand and six email agreement and the paragraph eight of the buy sell agreement when taken together with the quarterly financial statements constitute a contract for  there is no promise or no within the four corners of a document but i would like to draw the honors attention to pat the language of paragraph eight of the buy sell agreement which states that robel and hamley here by agree to personally guarantee any and all company company loans if requested first got to be a company loan that's correct and has to be approved by a supermajority of the interest that's correct in section six zero three d of the operating agreement requires consent of supermajority it does not by the plain language require written consent and it's our position that the four and a half years of e mail i don't think we have a statute of frauds problem i think that well first i think that this promise falls outside the statute of frauds under the main purpose doctrine where the primary benefit robel president of rubble construction says that in his deposition they discussed it several times testifies in her deposition that they discussed it several times these discussions are then confirmed by that two thousand mail and then we would also argue that drawing a reasonable inference from these facts in light of the fact that we received his own company's financial statements over four and a half year period these statements treated this money as a loan to a company he never objected to this treatment he never said i didn't consent to this treatment and in fact he called there a law for an and so then it may defeat a summary judgment but the issue i think the judge smith said about about the statute of frauds which is and you really you didn't even address that in your response here pleadings on submarine judgment it's our position that the buy sell agreement which uses that language hereby agrees and effectuate is that personal guarantee language within the buy sell agreement when it you take that with the financial statements and that two thousand and six email and the law does allow you to take multiple writings as evidence of a written contract when you take these three together we have what we have is your argument that you have the written contract is the buy sell agreement and then all you're looking at is under that contract whether there are sufficient facts to show that they made the capital and the whale money went is outside the statute of frauds under the main purpose doctrine because this loan was only made and we believe that it's reasonable to infer that homely knew a personal guarantee would be attached to this loan at his request so he could avoid a big size hit to hi the company needed cash but they could have gotten it through a capital call humbly they didn't seem his willing to make that call so we believe the primary purpose of the personal guarantee was for his own benefit to maintain his company in the centrists and to avoid that huge we also think that again when taken together the personal the buy sell agreement the which limits his liability on any company loan to forty percent of the total loan the financial statements and the two thousand and six e mail when taken together provide the mean tiriel terms necessary for a personal guarantee well i guess i didn't understand i thought your argument was that paragraph eight of the buy sell agreement refers to a person guaranteed for company loans as if the company or any lender asked for personal guaran that's an essential part of the very moment but you have to take together the two thousand and six email in the financial statements one read together that satisfies the statute of frauds and i thought on the program for evil you had to prove that somebody asked him to guarantee it were arguing that the three documents i've been referring to when read together provide the essential start terms required for the statute of frauds and meet the writing requirement the lower court's holding does turn on whether or not robel can structure requests so that homily personally guarantee the loan and finds that there's no evidence in the record to indicate he did we believe that the receivable to rubble construction and the amount rubble construction and you need to pay to clear this loan when you take these together there's a reasonable inference that rebel construction in fact requested that holly personally just finished the first games of the pro football season and there's a lot of people looking at both the chiefs and the rams money money quarterbacking of what went wrong yesterday well that's exactly what this case is about it's monday morning quarterbacking on a failed company as to who's going to bear the loss and in if we look at everything as it progressed chronological because that's the way it did progress you'll find that they attempted early on to comply with corporate law and to run this what this corporation the way it was supposed to however it quickly devolved into something much more than that and that is the problem that the appellant has in this case is they didn't follow the rules you have to remember that homily and robel l l c has two members andrew homily who's an individual and robel construction company which is a corporate kansas corporation all of this is under kansas law which is a unique thing for the eighth circuit i know because we've got missouri kansas everybody else here but it's kansas law was not drastically different from missouri law or other states or in the mid west but it is kansas law the key is is that steve robel was the president of roll construction incorporated he was a sixty percent owner of homily and role his wife had no corporate office that has been shown in the record at all she was quote merely helping out with accounting so you have to remember that too because it's going to be key as to who made the request when it was made and under what authority this is a real estate development company this company went into business by two thousand and four the record reflects its having problems by two thousand and six it was cash strapped and it was having a lot of problems which leads to the facts in this case it had prior to that in or into a land development loan with the north american savings bank and if you those are records are in the file and it also shows that in both of those there were written guarantee by the rebels and by the homilies guaranteeing that loan and that's again important to remember because we don't see anything more like that in any of the rest of the record the testimony at a in depositions was that the concept was roll construction was going to be the money mr homily was going to be the on the job manager that's why the sixty forty eight was there because the risk for the money was with rubble and the job to get done was homilies two documents two documents and only two documents for the basis of this arrangement and that we've talked about it at nauseum but the operating agreement it has two key points actually three key points six point zero three day says there will be no obligation over ten thousand dollars without unanimous consent of the members number and the key is rubble construction company and homily agree they're going to guarantee and that's important folks because it refers to such lender if construction company is going to be personally guaranteeing its won't of the company those that follow logic know it is not what this contemplated was something like the north american savings bank loan or a outside lender is asking you know you're not going to be able to hide behind the protection of l l c you're going to have to personally your own money at risk the only time it is asked for was for north american savings bank and that alone was guaranteed as requested in order to get a personal guarantee there are three steps as provided in paragraph  section eight first is there has to be an application for a loan with a lender number two that that lender is going to require personal guarantees in order to make the loan and number three that a request made by both the lender and by the company which is the l l c homily and robel that you guarantee it with those you cannot stop the financing that the company needs in order requires your personal guarantee as well and the company requires a personal guarantee and three you can't withhold that ladies and gentlemen of the court no such requests was made no such one was applied for and if you look at the record you will find out in looking at vera robles email of the july the thirty first zero six it's goes on and on and do read the entire email str because the the the very very important part is the actual last email that's in the string which is seldom referred to by the opponent first is she says we need seventy one thousand dollars number two is we can do it by capital call or we're going to have to two constructions going to have to advance the money if you look in the e mail it says later that they've advanced money four times before four times before and what has happened is as lots are sold as houses are sold they get paid the first dollars out no personal guarantee for those loans was ever requested ever discussed or anything else and the court needs to note that this is a seventy one thousand dollar loan but yet we have got the appellant is saying there's four hundred thirty one thousand dollars out there that are owed of which they want mr robel mr holley to pay eight hundred seventy two thousand there's a long ways between seventy one thousand and forty four hundred thirty one thousand where is it the only thing the c it's the debt of the l l c it was never personally guaranteed because it did not meet the three criteria that are provided for in the buy sell agreement that's all he said he said it may have been a failed capital call but it there's no doubt that what will construction loaned money to the l l c no doubt about it but no time was mr homily a day he agreed to a personal guarantee and again if you look at what is contemplated in the original legal documents what happened there after with the north american savings bank i think it's really easy to figure it out that this contemplated that there would be a promis and then there would be written personal guarantees for each promissory note not a blanket statement in that first day of the existence of the l l c that opened the way i'm guaranteeing everything what is the purpose of an l you look at the section a mediately prior to section eight in the buy sell agreement you'll find out it discusses financing and it says if you cannot make a capital call there is a provision for one member to loan the other member money but that was never been referred to reference in anything in this case it is merely after the fact then roll construction i we kept funding a losing business we now have no way of recovering that money so mr homily it's up to you but that's monday morning quarterbacking that's not the way it happened the when i pointed out to the court the emails during the last email is vera role will refer replying to mr homily and she says i don't want to tell you guys what to do now she's referring to mr homily but at the same time when she uses the plural she must be referring to her husband steve i'm just trying to instigate some discussion to get you guys to look at it each month when it is time to pay bills there is no money so i advance from roble construction thinking will get caught up when there is a closing there hasn't been enough closings member of the court is that a meeting of the minds is that an agreement personally guarantee is that an agreement other than what mr rubble testifies to was the oral and to address the statute of frauds argument that's exactly what this is all about is that the purpose of the statute of frauds is to because they don't believe that the three requirements were met but it to to address that issue is that's the reason the stature fraud exists in stature fraud specifically in kansas says it is any time you agree to pay money for the death of another it has to be in writing and here they're saying seventy one thousand but actually they're saying four hundred thirty one thousand and there's a big difference there and so i think that you would have called quits and shut down the corporation or you would have come to a meeting of the minds and agreements with promissory notes and personal guarantees you wouldn't have to after the fact try to invent things outside of will lower court order if you read the order it didn't find the paragraph it requires has three requirements outlined in it it simply says that it requires robel construction to make her quest for personal guarantee and there's no evidence indicating he made this request that was that was what the lower court base its opinion on would this case be easier if it were less of a handshake yes it would have been but that does not mean we don't have the writings requirement when viewed in the light most favorable to plaintive where result jury can infer there was a personal guarantee here that meets the requirements of the statute of frauds appellee ones to continue to argue in requirements within paragraph eight of the buy sell agreement that just simply don't exist the plain language requires a request from company and lender to trigger the personal guarantee if he thinks this is a big u s and wants to battle it out in the lower court by all means let's send it back but what we're arguing and what i'd like to really reinforce for the court is that paragraph day of the buy sell agreement is evidence that humbly was on notice he might have to be personally liable for company debt if requested by lender and company and when that paragraph is taken in in consideration with the two thousand and six e mail and the financial statements that constitutes a writing which demonstrate piercing personal guarantee for this loan further the fact that hamley was sent financial statements over four and a half years that this is the growing receivable for mobile construction this is the amount you have to pay to clear  panicked because of his personal guarantee on this loan and the fact that he was liable for forty percent of that law even the three documents the two thousand and six e mail paragraph eight of the buy sell agreement the financial statements the deposition testimony and holly's own behavior we're asking this court reversed to manage the lower court because this evidence raises reasonable inferences as to whether hamley personally guaranteed