United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1741

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Menard, Inc. a Wisconsin Corporation

lllllllllllllllllllll Plaintiff - Appellee

v.

Dial-Columbus, LLC, a Nebraska limited liability company also known as Dial

Columbus, LLC; DKC-Columbus, LLC, a Nebraska limited liability company

lllllllllllllllllllll Defendants

Terry L. Clauff, a Nebraska resident

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the District of Nebraska - Lincoln

____________

 Submitted: October 7, 2014

 Filed: March 26, 2015

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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

____________

BEAM, Circuit Judge.
The district court granted summary judgment in favor of Menard, Inc., on its

claim that Terry Clauff is jointly and severally liable for a contract he signed on

behalf of DKC-Columbus, LLC, before the company came into existence. We

reverse.

I. BACKGROUND

Menard is a Wisconsin corporation that owns and operates home improvement

stores. Dial-Columbus, LLC, and DKC-Columbus are Nebraska limited liability

companies (LLCs). Clauff is a member of both companies. 

Menard operated a retail store in the Westgate Center in Columbus, Nebraska,

in a building that it subleased (the Sublease) from Wal-Mart Stores, Inc. On August

28, 2006, Menard entered into a Purchase and Sale Agreement (the PA) with DialColumbus to purchase a parcel of property (the Property) that Dial-Columbus owned. 

Clauff signed the PA in his capacity as a managing member of Dial-Columbus. 

Menard planned to build a new store on the newly acquired Property and wanted to

be relieved of its obligations under the Sublease once the new location opened for

business. Menard and Dial-Columbus therefore incorporated a provision into the PA

providing that Dial-Columbus would assume full responsibility for all terms of the

Sublease thirty days after Menard opened its new store, the "Effective Date." DialColumbus's lease assumption responsibilities in the PA specifically included

"pay[ing] any and all rents and satisfy[ing] all other obligations under" the Sublease. 

The PA further stated that Dial-Columbus's responsibilities "were set forth in more

detail in the Lease Assignment, Consent & Release" (the Lease Assignment) that was

attached as an exhibit to the PA. Dial-Columbus's name, however, appears nowhere

in the Lease Assignment. The Lease Assignment instead statesthat DKC-Columbus

sold the Property to Menard and on the stated "Effective Date" agreed to receive by

assignment all of Menard's right, title and interest in and to assume all of Menard's

liabilities, duties and obligations under the Sublease. The parties(and apparently the

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district court) seemingly never noticed this discrepancy between the documents until

it was pointed out to them at oral argument before this court, and they have provided

us no explanation for why or how this discrepancy occurred. 

Nonetheless, with the written consent of Wal-Mart, DKC-Columbus and

Menard formally executed the Lease Assignment attached to the PA on February 12,

2007. Clauff purported to sign the Lease Assignment in his capacity as a member of

DKC-Columbus. However, DKC-Columbus did not file its Articles of Organization

with the Nebraska Secretary of State until October 30, 2007, and it is undisputed that

the company was not a lawfully organized LLC on the date Clauff signed the Lease

Assignment. See Neb. Rev. Stat. §§ 21-2605, 21-2608 (repealed 2013) (providing 1

that a limited liability company is considered organized after the company has filed

its articles of organization with the Nebraska Secretary of State and has received a

certificate of organization). Clauff and Menard both claim that DKC-Columbus

adopted the Lease Assignment after the company formed, but neither party has

provided documentary or other evidence that identifies when or how DKC-Columbus 

did so. Wal-Mart, as sublessor of the Westgate property and beneficiary of the

Sublease obligations fully assigned by Menard to Dial-Columbus and DKCColumbus, demanded that Menard also continue to be secondarily liable for these

commitments. Menard agreed to such requirement.

Menard opened its new store in April 2008. The parties agree that thirty days

later Dial-Columbus became responsible for the Sublease under the terms of the PA,

and that DKC-Columbus also became similarly accountable via its obligations under

the Lease Assignment. Either Dial-Columbus or DKC-Columbus paid rent to WalMart for May and June of 2008; however, neither company made any rental payments

In 2013,theNebraskaLimited LiabilityCompany Act (Nebraska LLCA), Neb.

1

Rev. Stat. §§ 21-2601 et seq., was repealed and replaced by the Nebraska Uniform

Limited Liability Company Act (Nebraska ULLCA), Neb. Rev. Stat. §§ 21-101 et

seq. The parties agree that the Nebraska LLCA is controlling in this case.

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after June 2008. Both companies also failed to pay the insurance costs and taxes due

under the Sublease. The Sublease expired in January 2011, at which time DialColumbus and DKC-Columbus jointly owed Wal-Mart more than $700,000.

As contemplated by the assignments, Wal-Mart initially sought to recoverfrom

Dial-Columbus and DKC-Columbus. Failing this, it then turned to collecting from

Menard under its indemnity commitment. Menard eventually settled with Wal-Mart

for $350,000. Menard then brought suit against Dial-Columbus, DKC-Columbus,

and Clauff to recover that money. In its pleadings, Menard asserted several theories

of recovery against each defendant, including breach of contract and contractual

indemnification. All three defendants initially defaulted. However, after the clerk's

entry of default, Clauff and Dial-Columbus entered an appearance, and the district

court set aside the entry of default as to them. DKC-Columbus never appeared and

was thus subjected to default judgment. Fed. R. Civ. P. 55(b). 

Clauff and Dial-Columbus jointly filed a pleading in which they denied liability

and asserted several affirmative defenses, including estoppel. They then moved to

dismiss the case, but the district court denied their motion. Menard subsequently

filed a motion for partial summary judgment, asking the court to enter judgment in

its favor against each defendant on Menard's breach of contract and contractual

indemnification theories. Dial-Columbus did not contest the motion, and the district

court entered judgment against it. Clauff opposed the motion, arguing that he was not

liable for the Lease Assignment because (1) the future members of DKC-Columbus

authorized him to obligate the company to the contract; (2) none of the parties to the

Lease Assignment intended for him to be personally liable; and (3) any liability that

may have incurred was relieved or discharged after DKC-Columbus formed and

adopted the Lease Assignment.

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The district court ultimately granted summary judgment in favor of Menard on

the grounds that Clauff wasliable for the Lease Assignment under Nebraska Revised

Statute § 21-2635 (repealed 2013), which provided that "[a]ll persons who assume to

act as a limited liability company without authority to do so shall be jointly and

severally liable for all debts and liabilities of the company." Neb. Rev. Stat. § 21-

2635. The district court concluded that Clauff did not have authority to obligate

DKC-Columbus to the Lease Assignment because the contract was not incidental to

the company's organization and DKC-Columbus therefore lacked the capacity to

authorize it. See Neb. Rev. Stat. § 21-2608(2) (stating that an unorganized LLC may

only transact business or incur debt if such business or debt is incidental to the

company's organization). The district court further determined § 21-2635 imposed

2

what amounted to strict liability on Clauff for this unauthorized contract because he

failed to show that Menard agreed to a discharge of his liability. Clauff appeals. 

II. DISCUSSION

"We review the district court's grant of summary judgment de novo, viewing

the evidence and drawing all reasonable inferences in the light most favorable to

[Clauff]." Malloy v. U.S. Postal Serv., 756 F.3d 1088, 1090 (8th Cir. 2014). We will

affirm only if "there is no genuine dispute as to any material fact and [Menard] is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The parties agree that

After the district court entered summary judgment in favor of Menard, Clauff 2

filed a motion requesting that the court alter or amend its judgment under Rule 59(e)

of the Federal Rules of Civil Procedure on the grounds that the opening of Menard's

new store was a condition precedent to the formation of the Lease Assignment. 

Clauff, however, could have raised this argument prior to entry of judgment in favor

of Menard, and the district court therefore did not clearly abuse its broad discretion

in denying the motion. Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of

the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). However, the district court will

be free to revisit this discretionary ruling upon remand should it choose to do so.

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Nebraska law governs this dispute. Because no Nebraska appellate court has

interpreted the now repealed § 21-2635, our task isto predict the manner in which the

Nebraska Supreme Court would interpret the statute. Marvin Lumber & Cedar Co.

v. PPG Indus., Inc., 223 F.3d 873, 876 (8th Cir. 2000). 

Clauff raises what we construe to be three separate arguments in opposition to

the district court's holding that he is personally liable for the Lease Assignment. 

Clauff first contendsthat, because the future members of DKC-Columbus authorized

him to sign the Lease Assignment on behalf of the company, his conduct was

authorized for purposes of § 21-2635. Clauff next suggests that the statute does not

apply to his conduct because the parties never intended for himto be personally liable

for the Lease Assignment. Finally, Clauff contends that, even if he was liable under

§ 21-2635, DKC-Columbus relieved him from such liability by adopting the contract

and commencing performance on it after the company lawfully formed.

A. Clauff's Authority

We begin our analysis by noting that the factual discrepancies between the PA

and the Lease Assignment create some uncertainty regarding whether the parties

intended to bind Dial-Columbus or DKC-Columbus to the Lease Assignment. The

parties, however, represented to the district court and to this court that DKCColumbus was the intended party to the Lease Assignment. Therefore, for purposes

of summary judgment review, we will rely on the parties' representations regarding

their intent, bearing in mind that future discovery may reveal that resolution of this

issue is far less clear than the parties led the district court to believe. 

We find no fault in the district court's conclusion that, based on the summary

judgment record, Clauff was not authorized to obligate DKC-Columbus to the Lease

Assignment. The Nebraska LLCA prescribed the method by which LLCs could form

and prohibited an unorganized LLC from transacting business or incurring debt that

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was not incidental to its organization. See Neb. Rev. Stat. §§ 21-2605, 21-2608. 

Viewed in conjunction with these provisions, it is clear that § 21-2635 created the

prospect of liability for persons who acted as an LLC without the state having granted

them authority to do so. This interpretation of the term "authority" is supported by

the legislative history of § 21-2635 and is consistent with how courts have interpreted

similarly-worded state statutes in Nebraska and other jurisdictions. See, e.g., Par 3,

Inc. v. Livingston, 686 N.W.2d 369, 372-73 (Neb. 2004) (interpreting Neb. Rev. Stat.

§ 21-2020); Timberline Equip. Co. v. Davenport, 514 P.2d 1109, 1110-11 (Or.

3

1973); Model Bus. Corp. Act § 146 cmt. (1969) (stating the authority to act as a

corporation must come from the state); The Nebraska Limited Liability Company

Act: Hearing on LB 121 Before the Comm. on Banking, Commerce and Ins., 1993

Leg., 93rd Sess. Jan. 26, 1993, at 11 (statement of Sen. David Landis, Member,

Comm. on Banking, Commerce and Ins.). Accordingly, assuming that DKCColumbus was actually the intended recipient of the Lease Assignment, Clauff was

not authorized to obligate the company to this contract. But see Par 3, 686 N.W.2d 4

at 372-73 (defendant not liable under Neb. Rev. Stat. § 21-2020 for contract he signed

in name of unincorporated business because record established that parties actually

intended to bind a different, lawfully formed corporation).

Section 21-2020, which is Nebraska's corporate analogue to § 21-2635, 3

provides that "[a]ll persons purporting to act as or on behalf of a corporation,

knowing there was no incorporation under the Business Corporation Act, shall be

jointly and severally liable for all liabilities created while so acting." 

However, the summary judgment record indicates that DKC-Columbus came

4

into existence and adopted the Lease Assignment long before any debts or liabilities

actually arose under the Lease Agreement. It is therefore unclear whether Menard

was actually harmed in any way by Clauff's unauthorized conduct. The Nebraska

Supreme Court tends to disapprove ofsomewhatsimilar unbargained for events. See

Porter v. Smith, 486 N.W.2d 846, 853 (Neb. 1992).

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B. The Parties' Intent

Clauff's arguments with respect to the relevance of the parties' intent raise

murkier questions of law. Courts that have interpreted statutes like § 21-2635

virtually all agree that the statutory language embodies a common law concept known

as "promoter liability." E.g., Ruggio v. Vining, 755 So.2d 792, 794-95 (Fla. Dist. Ct.

App. 2000); Booker Custom Packing Co. v. Sallomi, 716 P.2d 1061, 1063 (Ariz. Ct.

App. 1986); H.F. Philipsborn & Co. v. Suson, 322 N.E.2d 45, 48 (Ill. 1974). "A

'promoter' is a person who assumes to act on behalf of a proposed corporation that is

not yet incorporated." William Meade Fletcher, Fletcher Cyclopedia of the Law of

Corporations § 189. Because nonexistent corporations lack capacity to contract,

promoters generally are liable for their preincorporation agreementsthough made on

behalf of a corporation to be formed. Id. at § 215. 

As an initial matter, the district court correctly rejected Clauff's argument that

his conduct fell outside the purview of § 21-2635 merely because the parties did not

affirmatively intend that he be personally liable for the Lease Assignment. "The

purpose of statutes like [21-2635] is to protect innocent third parties who have

dealings with an entity that does not exist and never becomes adequately capitalized." 

Ruggio, 755 So.2d at 795; see W. Sec. Corp. v. Eternal Techs. Group, Inc., 303 F.

App'x 173, 174 (5th Cir. 2008) (citing with approval to Ruggio). We would likely

strike a fatal blow to the primary aim of § 21-2635 were we to conclude that the

statute applied only in circumstances where the third party to the contract actually

knew it was dealing with a promoter. Rather, case law strongly supports the district

court's conclusion that statutes like § 21-2635 impose liability on promoters for their

preincorporation contracts unless the third party knows it is dealing with a promoter

and agrees to look solely to the proposed company for performance. E.g., Talaria

Waste Mgmt., Inc. v. Laidlaw Waste Sys., Inc., 827 F. Supp. 843, 846 (D. Mass.

1993); Sherwood & Roberts-Oregon, Inc. v. Alexander, 525 P.2d 135, 137-39 (Or.

1974). Accordingly, assuming the parties intended for DKC-Columbus to receive

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assignment of the Sublease, Clauff cannot escape the reach of § 21-2635 merely

because the parties did not intend for him to be personally liable. 

The district court gave short shrift, however, to Clauff's alternative argument

that his liability for the Lease Assignment wasrelieved after DKC-Columbus formed,

adopted the contract, and commenced performance on it. The district court correctly

noted that, when faced with fact patterns like the one before us, several courts have

defaulted to principles of novation and concluded that a corporation's adoption of a

promoter's contract does not relieve the promoter from liability unless the parties

formally agree to a release. E.g., Talaria Waste Mgmt., 827 F. Supp. at 846 n.7;

Jacobson v. Stern, 605 P.2d 198, 201 (Nev. 1980). However, numerous courts have

refused to strictly apply novation principles to promoter contracts in circumstances

where doing so would override the parties' intent and seemingly grant to the third

party an unexpected and unnecessary windfall. Norfolk S. Ry. Co. v. Jacobs, 549 F.

Supp. 2d 990, 999-1000 (N.D. Ohio 2008) (promoter's liability relieved if corporation

forms, adopts the preincorporation contract, and commences performance on it); GS

Petroleum, Inc. v. R and S Fuel, Inc., No. 07C-09-023 RRC, 2009 WL 1554680, at

*3-4 (Del. Super. Ct. June 4, 2009); Suson, 322 N.E.2d at 48-50 (no liability based

on state law principles of contract and equity). 

It is a bit unclear why the district court did not take a more inclusive look at

Nebraska's common law of promoter liability in interpreting § 21-2635. "It is a

recognized rule of construction thatstatutes which effect a change in the common law

or take away a common-law right should be strictly construed . . . a construction

which restricts orremoves a common-law rightshould not be adopted unlessthe plain

words of the act compel it." Knosp v. Shafer Props., LLC, 820 N.W.2d 68, 74 (Neb.

App. 2012). Furthermore, "[i]n construing [the plain words of] a statute, a court must

look at the statutory objective to be accomplished, the problem to be remedied, or the

purpose to be served, and then place on the statute a reasonable construction which

best achieves the purpose of the statute." Guzman v. Barth, 552 N.W.2d 299, 301

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(Neb. 1996). These principles of statutory construction suggest that, if Clauff's

defense was available under the common law, then § 21-2635 should be construed as

eliminating this defense only if the plain words and the purpose of the statute compel

this result. Id.; Knosp, 820 N.W.2d at 74. 

Although not dispositive, several cases suggest that the Nebraska Supreme

Court has been hesitant to hold promoters liable on their preincorporation contracts

when it is clear the parties intended to bind the corporation to the agreement,

particularly in circumstances where the corporation itself is ultimately held liable on

the contract. E.g., Henderson v. Joplin, 217 N.W.2d 920, 924 (Neb. 1974); Am. Gas

Const. Co. v. Lisco, 241 N.W. 89, 90 (Neb. 1932); Neb. Nat'l Bank of York v.

Ferguson, 68 N.W. 370, 371-72 (Neb. 1896); accord Whitney v. Wyman, 101 U.S.

392, 397 (1879) (plaintiff estopped to deny corporation's nonexistence because

corporation later came into existence and treated contract as valid and binding upon

it); Forker Solar, Inc. v. Knoblauch, 396 N.W.2d 273, 279 (Neb. 1986) ("A person

who contracts with a corporation is estopped from later denying its corporate

existence."). Clauff's defense that he was relieved of liability once DKC-Columbus

came into existence, adopted the contract, and commenced performance on it

therefore may be viable under the Nebraska common law. Lisco, 241 N.W. at 90;

Ferguson, 68 N.W. at 371-72; accord Jacobs, 549 F. Supp. 2d at 1000; Suson, 322

N.E.2d at 48-50. 

Assuming the possibility that the parties and the district court may not have

given sufficient consideration to whether the language and the purpose of § 21-2635

compel a finding that the statute abrogated Clauff's common law defenses, we suggest

a closer look. Guzman, 552 N.W.2d at 302; Knosp, 820 N.W.2d at 74. Indeed,

although § 21-2635 clearly defined how a promoter became liable on a

preincorporation contract, it was silent with respect to how a promoter could be

relieved of or avoid liability for the agreement. Compare Talaria Waste Mgmt., 827

F. Supp. at 846 n.7 (promoter must obtain express release); with Suson, 322 N.E.2d

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at 48-50 (liability relieved by express release or by adoption of contract by

corporation); and Ruggio, 755 So.2d at 795 (permitting defendant to raise traditional

equitable defenses to promoter liability). In addition, as the district court noted, §

21-2635 is intended to protect parties that are victimized by unauthorized corporate

activity. We therefore find some merit in the cases holding that the normally rigid

novation rules should be relaxed in circumstances where the corporation forms and

adoptsthe contract because the third party presumably receives "everything for which

it had bargained" and can hardly be labeled a victim. Suson, 322 N.E.2d at 49; see 5

also Jacobs, 549 F. Supp. 2d at 1000. 

Given the complexity of these legal issues and the potential for factual

deficiencies in the summary judgment record noted above, we conclude that our best

course of action is to leave to the district court the question of whether the Nebraska

common law and/or § 21-2635 preclude Clauff's argument that his liability under the

6

Lease Assignment may be relieved or avoided because DKC-Columbus came into

existence, adopted the contract, and commenced performance on it. 

Clauff pled an estoppel defense, and the parties' representations to this court

5

suggest that they have viewed the potential availability of a corporation by estoppel

defense as a live issue throughout the course ofthese proceedings. However, because

the summary judgment record is unclear regarding the extentClauff brought thisissue

to the district court's attention, we leave to Clauff the burden of articulating to the

district court the basis of his estoppel defense. 

We note thatsubsequent to the district court's grant ofsummary judgment, the

6

Nebraska Supreme Court recognized that Neb. Rev. Stat. § 21-2020, which is the

corporate analogue to § 21-2635, did not abolish the common law defense of de facto

corporation. In re Estate of Greb, 848 N.W.2d 611, 620-21 (Neb. 2014). Although

not directly on point, Greb certainly suggeststhat the Nebraska Supreme Court would

reject the argument that Nebraska's promoter liability statutes abolished the common

law legal and equitable defenses to promoter liability. Accord Suson, 322 N.E.2d at

48.

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III. CONCLUSION

The district court's grant of summary judgment in favor of Menard is reversed

and remanded for further proceedings consistent with this opinion.

COLLOTON, Circuit Judge, dissenting.

In my view, the district court correctly applied the terms of Revised Statutes

of Nebraska § 21-2635 (2012), and properly rejected the arguments that Terry Clauff

presented in the district court. The language of the statute is clear: “All persons who

assume to act as a limited liability company without authority to do so shall be jointly

and severally liable for all debts and liabilities of the company.” Id. Clauff purported

to sign a lease assignment on behalf of a limited liability company, DKC-Columbus,

that was not yet organized. Clauff had no authority to do so, see Neb. Rev. Stat. § 21-

2608(2) (2012), and he is therefore jointly and severally liable for the resulting

liabilities of DKC-Columbus.

The court’s curious opinion reversesthe judgment in favor of Menard, Inc., and

remandsthe case to the district court for further consideration without identifying any

error in the analysis of the district court. Instead, the court remandsfor consideration

of two matters that were never presented to or addressed by the district court. It has

been well settled heretofore that we will not reverse a grant of summary judgment

based on arguments that were not raised in response to the motion. B.M. ex rel.

Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 887 (8th Cir. 2013).

The court thinks it is a “bit unclear why the district court did not take a more

inclusive look at Nebraska’s common law of promoter liability in interpreting § 21-

2635.” Ante, at 9. The reason is perfectly clear: Clauff never argued in response to

Menard’s motion for summary judgment that a common law defense such as

“corporation by estoppel” precluded application of the statute. The summary

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judgment record is not “unclear regarding the extent Clauff brought this issue to the

district court’s attention,” ante, at 11 n.5; Clauff never mentioned it. Even if the

boilerplate reference to “waiver, laches and/or estoppel” in Clauff’s answer, R. Doc.

21, at 7, is enough to plead adequately a defense of “corporation by estoppel” under

Nebraska law, a defendant does not preserve a defense by pleading it but then

declining to advance it in response to the opponent’s dispositive motion. The district

court understandably did not address the point, and it is too late for Clauff to raise a

new defense to the motion for summary judgment for the first time on appeal. 

The court, moreover, overstates the significance of First Nebraska Trust Co.

v. Greb (In re Estate of Greb), 848 N.W.2d 611 (Neb. 2014), when it opines by way

of a footnote—without briefing or argument—that Greb “certainly suggests that the

Nebraska Supreme Court would reject the argument that Nebraska’s promoter

liability statutes abolished the common law legal and equitable defenses to promoter

liability.” Ante, at 11 n.6. Greb holds that the Business Corporation Act did not

abolish the de facto corporation doctrine in Nebraska in a case “where, unbeknownst

to its directors and officers, a lawful corporation was involuntarily dissolved.” 848

N.W.2d at 621. Greb does not address promoter liability; if anything, it implies that

the de facto corporation defense is unavailable in that context because the Business

Corporation Act governs: “Although the act contains sections governing the

commencement of corporate existence and imposing liability upon persons

purporting to act as or on behalf of a corporation with knowledge that no

incorporation has taken place, these provisions do not address all of the issues

responsible for the development of the [de facto corporation] doctrine.” Id.

(emphases added) (footnotes omitted). One issue unaddressed by the Business

Corporation Act was the effect of an involuntary corporate dissolution unknown to

the corporate directors and officers, so the de facto corporation doctrine was available

in that scenario. Because § 21-2635 does contain sections imposing liability on

persons purporting to act as or on behalf of a limited liability company without

authority to do so, there is good reason to believe that the Nebraska court would

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follow the terms of the statute. See Thompson & Green Mach. Co. v. Music City

Lumber Co., 683 S.W.2d 340, 345 (Tenn. Ct. App. 1984) (applying Tennessee

equivalent of § 21-2635 for corporations); Wheat Belt Pub. Power Dist. v. Batterman,

452 N.W.2d 49, 51 (Neb. 1990) (“[T]he liability of one party to a contract may not

be substituted for the liability of another unless the parties to the original contract

agree to the discharge of the original debtor and substitution of a new one.”).

The court’s other stated reason for remanding is a reference to “factual

discrepancies” that “create some uncertainty” about whether DKC-Columbus or DialColumbus was the purported party to the Lease Assignment that Clauff signed with

Menard. Ante, at 6, 11. This theory, too, was never raised in the district court or even

on appeal. Clauff acknowledged repeatedly that he purported to sign the Lease

Assignment on behalf of DKC-Columbus. R. Doc. 56, at 3 (“Clauff . . . executed the

Lease Assignment on behalf of DKC as a member.”); id. at 11 (“[T]he Lease

Assignment expressly showed Clauff assigning as a member of DKC.”); R. Doc. 57-

1, at 1 (“I . . . executed the Lease Assignment on behalf of DKC.”) (declaration of

Terry L. Clauff); Appellant’s Br. at 5 (“Clauff personally negotiated the Lease

Assignment with Menard on behalf of DKC-Columbus, and executed the Lease

Assignment on behalf of DKC-Columbus as a member.”). If the written papers were

not enough, Clauff’s counsel reaffirmed the point at oral argument:

Question: Have you ever argued, in the district court or in this court,

that the Lease Assignment was executed by Clauff on behalf of DialColumbus?

Counsel for Clauff: It has never been argued that the Lease Assignment

specifically was signed on behalf of Dial-Columbus.

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The district court correctly applied § 21-2635 and rejected the points that

Clauff raised in response to Menard’s motion for summary judgment. There is no

sound reason for a do-over. I would affirm the judgment.

______________________________

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