IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30570

CENTRAL STATES, SOUTHEAST

AND SOUTHWEST AREAS PENSION

FUND, a pension trust; and

MARION M. WINSTEAD; R. JERRY

COOK; HOWARD MCDOUGALL; ROBERT

J. BAKER; R.V. PULLIAM, SR.;

ARTHUR H. BUNTE, JR.; HAROLD D.

LEU, present trustee, and

RAYMOND CASH, present trustee,

Plaintiffs/Appellants/CrossAppellees,

versus

CREATIVE DEVELOPMENT COMPANY,

a Louisiana Partnership, TERRY

SMITH, partner; SANDRA THERIOT

SMITH, partner; JACK ROME, JR.,

partner; SUZANNE MCCRAINE ROME,

Defendants/Appellees/CrossAppellants.

Appeals from the United States District Court

for the Middle District of Louisiana

November 1, 2000

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge.

Plaintiffs/Appellants/Cross-Appellees Central States, Southeast and Sou thwest Areas Pension Fund, a multiemployer pension1 Hereafter, Creative Development and its partners are sometimes

referred to collectively as "Creative."

2 29 U.S.C. § 1001 et seq.

3 29 U.S.C. §§ 1381 - 1453.

2 fund, and its trustees (collectively “Central States”), appeal from

the district court’s judgment that dismissed Central States’s

pension plan withdrawal liability claims against

Defendants/Appellees/Cross-Appellants Creative Development Company

("Creative Development”), a Louisiana partnership, and its

partners,, Terry Smith, Sandra Theriot Smith, Jack Rome, Jr., and

Suzanne McCraine Rome. 1 Disagreeing with the district court as a

matter of law, we conclude that a written agreement ("the 1986

Agreementv) unambiguously provided for and effectuated the transfer

of a capital interest in Creative Development to Sheldon Beychok,

the majority owner of a different business organization which had

ceased making pension fund contributions to Central States. We

therefore reverse the district court's judgment for Cre ative and

remand for the limited purpose of affording that court the initial

opportunity to determine whether, by virtue of such acquisition of

a capital interest in Creative Development, Beychok (either alone

or in combination with appellee Jack Rome, Jr.) owned both a

"controll ing interest" and "effective control" of each business,

within the intendment of the Employment Retirement Income Security

Act (“ERISA”) 2 as amended by the Multiemployer Pension Plan

Amendment Act (“MPPAA”), 3 thereby placing Creative Development and4 Id.

5 29 U.S.C. §§ 1002(37) and 1301(a)(3).

6 29 U.S.C. § 1381(a)(“If an employer withdraws from a

multiemployer plan..., then the employer is liable to the plan in

the amount determined under this part to be the withdrawal

liability.").

3 Beychok’s other business organization under “common co ntrol” 4 and

s ubjecting Creative to responsibility for the other business’s

“withdrawal liability” to Central States.

I.

BACKGROUND

A. Statutory Framework

Central States is a m ultiemployer pension plan within the

meaning of §§ 3(37) and 4001(a)(3) of E RISA. 5 Central States

brought this suit to recover “withdrawal liability" from Creative

Development and its individual partners under MPPAA. The term

"withdrawal liability" refers to the share of unfunded vested

benefits, i.e., the difference betwe en the present value of a

pension plan's assets and the present value of the benefits it will

be obligated to pay in the future, that an employer owes to a

multiemployer p ension plan governed by ERISA when the employer

“withdraws” from the plan

. 6 An employer is deemed to have

withdrawn from a multiemployer pension plan when the employer “(1)

permanent ly ceases to have an obligation to contribute under the

plan, or (2) permanently ceases all covered operati ons under the7 29 U.S.C. § 1383(a).

8 Central States, Southeast and Southwest Areas Pension Fund v.

Slotky , 956 F.2d 1369, 1371 (7th Cir. 1992).

9 29 U.S.C. § 1382.

10 29 U.S.C. § 1301( b)(1)(“For purposes of this title, under

regulations prescribed by the [Pension Benefit Guaranty

C]orporation, all employees of trades or businesses (whether or not

incorporated) which are under common co ntrol shall be treated as

employed by a single employer and all such trades and businesses as

a single employer.")(emphasis add e d); see also Central States

Pension Fund v. Personnel, Inc.

, 974 F.2d 789, 792 (7th Cir. 1992)

(citing Board of Trustees of Western Conference of Teamsters

Pension Trust Fund v. Lafre nz, 837 F.2d 892, 893-94 (9th Cir.

1988)).

4 plan.” 7 ERISA imposes withdrawal liability on an employer in these

situations to ensure that “the financial burden of his employees’

vested pension benefits will not be shifted to the other employers

in the plan and, ultimately, to the Pensin Benefit Guaranty

Corporation, which insures such benefits.” 8

When an e mployer officially withdraws from a multiemployer

pension plan, the plan sponsor must then (1) determine the amount

of the employer’s liability, if any, (2) notify the employer of

this amount, an d (3) collect the sum from the employer. 9 If the

withdrawing employer is unable to pay its assessed withdrawal

liability in full, the plan may recover the deficiency from other

entities that are “trades or businesses” under “common control”

with the withdrawing employer. 10 Consequently, all such trades or

businesses, including the withdrawing employer, that are determined

to be under “common control” within the meaning of MPPAA and its11 Central States, Southeast and Southwest Areas Pension Fund v.

Koder

, 969 F. 2d 451, 452 (7th Cir. 1992) (citing Lafrenz

, 837 F.2d

at 893). The term "control group" is used interchangeably with the

term "controlled group." For the balance of this opinion, we will

refer to "controlled group," being the more commonly used term.

12 Central States. Southeast and Southwest Areas Pension Fund v.

Ditelo , 974 F.2d 887, 889 (7th Cir. 1992).

13 26 C.F.R. § 1.414(c)-2(c)(1)(emphasis added).

14 26 C.F.R. § 1.414(c)-2(b)(2)(i)(C)(emphasis added).

5 regulations, are deemed to belong to a “controlled group” of trades

or businesses and are treated as a “single employer.” As such, all

are jointly and severally (solidarily) liable for the withdrawal

liability incurred by any member of the control led group. 1 1 This

form of liability is commonly referred to a s “control group”

liability. 12

The determination whe ther particular entities are in fact

c ontrolled group members requires resort to several Treasury

Department regu lations, among which is one that specifies that a

trade or business belongs to a "brother-sister" controlle d group

if:

(i) the same five or fewer persons who are in dividuals,

estates, or trusts own...a c ontrolling interest in each

organization, and (ii) taking into account the ownership of

each such person only to the extent such owners hip is

identical with respect to each such organization, such persons

are in effective control of each organization. 13

In the case of a trade or business that is a partner ship, a

“controlling interest" means “ownership of at least 80 percent of

the profits interest or capital interest of such partnership, 14 and15 26 C.F.R. § 1.414(c)-2(c)(2)(iii)(emphasis added).

6 “effective control” exists wh en five or fewer persons “own an

aggregate of more than 50 percent of the profits interest or

capital interest of such partnership. 15

In this case, a Baton Rouge, Louisiana bakery business known

as Wolf Baking Co. Inc. (“Wolf Baking”) had been a signatory to a

collective bargaining agreement (“CBA”) pursuant to w hich Wolf

Baking was required to make contributions to Central States. In

December 1986, Wolf Baking filed for bankruptcy and discontinued

its operations, thereby permanently terminating its obligation to

make contributions to Central States. As a result, Wolf Baking was

deemed to have withdrawn from Central States. Accordingly, Central

States calculated Wolf Baking’s withdrawal liability and determined

it to be $1,352,710.73. Because of its bankruptcy, however, Wolf

Baking was able to pay only $289,858 of this obligation to Central

States, leaving a deficit in excess of $1 million. Central States

now seeks to recoup the Wolf Baking shortfall through a withdrawal

liability assessment and recovery against the partnership and the

individual partners comprising Creative, asserting that the

partnership was, at all pertinent times, a member of a brothersister controlled group with Wolf Baking. This, Central States

posits, resulted from the three-cornered transaction among (1) Wolf

Baking and its affiliates, (2) Beychok, individually, and (3)

Creative Development, as formalized in the 1986 Agreement.16 Hereafter WBC and its wholly owned subsidiaries, Wolf Baking

and Wm. Wolf Baker, are sometimes referred to collectively as “the

bakeries.”

17 As of December 1986, the remaining 15 percent of WBC’s

outstanding stock was owned by Harold Salmon, Jr. (10 percent) and

Robert Sehring (5 percent).

7 B. T he Brother-Sister Entities: Creative Development and the

Bakeries

Creative Development was formed as a Louisiana partnership in

1981 by the above-named individual appellees to develop a

residential subdivision near Baton Rouge. The initial capital of

the partnership was $5,000, consisting of equal contributions from

the founding partners.

In the same year, 1981, W.B.C. Inc. (“WBC”) was formed by

Sheldon Beychok, now deceased, appellee Jack Rome, and Harold

Salmon, Jr., to acquire the stock of two bakeries that had recently

emerged from bankruptcy. One of those bakeries was Wolf Baking;

the other was Wm. Wolf B akery, Inc. (“Wm. Wolf Bakery”). At all

times relevant to this case, those two bakeries were wholly owned

subsidiaries of the holding company, WBC. 16 Furthermore, at all

relevant times, Sheldon Beychok and appellee Jack Rome collectively

owned 85 percent of the issued and outstanding capital stock of the

holding company, WBC, with Beychok owning 61.45 percent and Rome

owning 23.55 percent. 17 Thus, Beychok and Rome, through their

controlling interest in the parent corporation, WBC, owned or

controlled more than 80 percent of the c apital stock of its Wolf

Baking and Wm. Wol f Bakery subsidiaries —— actually, 100 percent18 A “bakery depot” is a drop-off point for the localized

distribution of bread and bakery products.

8 control by virtue of their combined 85 percent control of WBC,

which owns 100 percent of the stock of each subsidiary.

During the mid-1980s, the wholly owned subsidiary bakeries of

WBC were chronically in need of cash, so Beychok made loans to each

from time to time. By June 1, 1986, the outstanding balance of

these loans aggregated $324,000.

C. Creative Development’s Initial Involvement with the

Bakeries: The Sale and Leaseback of the Bakery Depots

For a better understanding of the 1986 transaction, which is

at t he vortex of the dispute in this case, we briefly review how

Creative Development first became directly involved with the

bakeries and Beychok. In the early 1980s, after completion of the

re al estate venture for which it was originally formed, Creative

Development decided to invest in two "bakery depots" 18 owned by Wm.

Wolf Bakery. In March 1982, Creative Development purchased the two

bakery depots for a price of $250,000, then immediately leased both

depots to Wolf Baking “and/or its affiliates.” Beychok —— who,

with Harold Salmon, had previously purchased two other bakery

depots from Wm. Wolf Bakery —— confirmed that the purpose of this

March 1982 sale to Creative Development was to obtain cash for

injection into Wolf Baking and its affiliates so that the bakeries

could continue to operate.19 In addition to being a surety of the obligations of the

bakeries on the lease, Beychok was also a guarantor on the note to

River City.

9 The financing for Creative Development’s 1982 purchase of the

bakery depots came from two sources: (1) cash, obtained from a

$200,000 lo an from River City Federal Savings & Loan (“River

City”), evidenced by Creative Development’s promissory note, which

was secured by a first mortgage on the depot properties, and (2)

credit, evidenced by an unsecured $50,000 purchase money promissory

note given by Creative Development to the vendor, Wm. Wolf Bakery.

As an additional, inducement for Crea t ive Development to

purchase the tw o depots, Beychok agreed to become a party to the

depot leases and personally guarantee the lease payments to

Creative Development. In consideration for Beychok’s becoming a

party to and personally guaranteeing the leases, 19 Rome and Smith

executed a counter letter to Beychok, acknowledging that in truth

Crea t ive Development owned only an undivided two-thirds (2/3)

interest in the two depots purchased from Wm. Wolf Bakery and that

the remai ning one-third (1/3) interest was purchased for the

account of Beychok. The counter letter further declared that Rome

and Smith would, when called upon to do so, transfer record title

to Beychok of his undivided one-third (1/3) interest in the depots.

Creative Development’s purchase of the two bakery depots in

March 1982, coupled with the provisions of the counter letter,

produced a joint venture between Creative and Beychok. Subsequent10

financial statements and tax returns prepared for or filed by the

Romes, the Smiths, Creative Development, and the Creative/Beychok

joint venture, refl ect Creative’s two-thirds (2/3) and Beychok’s

one-third (1/3) ownership interests in this depot venture.

D. The 1986 Transaction

By the spring of 1986, Rome and Beychok knew that WBC’s

subsidiary bakeries were headed for bankruptcy and that as a result

Beychok, an insider, would never recover the $324,000 owed to him

by the bakers. The parties also knew that the $50,000 promissory

note given by Creative Development to Wm. Wolf Bakery as the credit

portion of the partnership’s purchase of the bakery depots was

still outstanding and would become a n asset of the bankruptcy

estate of the bakeries.

In an apparent effo rt to “save” Creative Development’s

$50,000, the bakeries’ bankruptcy counsel suggested that these two

debts be offset to the extent possible and that the transaction be

disclosed to the bankruptcy court. Accordingly, at Rome’s request,

Beychok caused the 1986 Agreement to be prepared. It was signed on

June 1, 1986 by Terry Smith (on behalf of Creative Developemnt),

Jack Rome (as President and CEO of Wm. Wolf Bakery, Inc. and Wolf

Baking Company, Inc.) and Sheldon Beychok, individually. In the

1986 Agreement, the parties first acknowledged the existence of (1)

Creative D evelopment’s $50,000 promissory note owed to Wm. Wolf

Baker, and (2) the bakeries’ cumulative debt of $324,000 owed to

Beychok. The parties then agreed to the following: (1) B eychok20 26 C.F.R. § 1.414(c)-2.

11

authorized the bakeries to reduce the amount of their $324,000

indebtedness to him by $50,000; (2) the bakeries , in turn, agreed

to credit the indebtedness owed to them by Creative Development by

the same amount ($50,000), “forever extinguishing the obligat ion

[on the promissory note] from Creative to W olf and/or Baking

Company”; and (3) Creative agreed that it

does hereby sell, transfer and assign unto Beychok an interest

in that partnership [Creative] equal to said Fifty Thousand

($50,000) Dollar offset as described hereinabove. (emphasis

added).

The legal effects of this round robin transaction comprise the

crux of the threshold issue of the instant litigation: whether

Sheldon Beychok, the now-deceased former majority owner of WBC and

its subsidiaries, acquired a capital or equity interest in Creative

Development as a result of the 1986 transaction, or merely became

its creditor. If Beychok acquired a capital interest and such

interest, either alone or in combination with Rome’s, equaled or

exceeded the minimum percentages needed to constitute “controlling

interest” and “effective control ” for purposes of the relevant

Treasury Regulation, 20 t hen Creative Development and the bakeries

would have been under “common control,” i.e., members of the same

brother-sister group of trades or businesses under the common

control of Rome and Beychok. As such, Creative would be liable to21 29 U.S.C. §§ 1381-1453.

22 26 C.F.R. § 1.414(c)-2.

12 Central States under MPPAA. 21 If, however, Beychok merely became

a creditor of the partnership, no such liability would attach.

As shall be seen in the analysis that follows, this case turns

on the answers to three questions: (1) Is the subject provision of

the 1986 Agreement ambiguous?; (2) regardless of whether that

provision is ambiguous, what is the nature of the “interest”

acquired by Beychok in Creative Development by virtue of the 1986

Agreement?; and (3) if the interest B eychok acquired was capital

and not debt, d oes Beychok’s percentage of capital interests, or

the combined percentage interests of Beychok and Rome, in both

Creative Development and the bakeries meet the two-pronged test for

“common control” under the applicable Treasury Regulation? 22

II.

PROCEEDINGS

Central States filed the instant ac tion in September 1992,

alleging that Wolf Bakin g and Creative Development constitute a

controlled group and should be treated as a single employer for,

purposes of assessing and recovering withdrawal liability under

MPPAA. The district court denied cross notions for su mmary

judgment, finding that the 1986 agreement was ambiguous, and that

further inquiry into the intent of the parties was required. After

a one day trial, the di strict court reaffirmed its earlier23 See 29 U.S.C. §§ 1132(g)(1) and 1451(e).

13 determination that the 1986 Agreement is ambiguous. The court then

held, based on extrinsic evidence, that the 1986 Agreement was

entered into solely to make Beychok a $50,000 creditor of Creative

Development which, to that extent, simply replaced the bakeries as

Beychok’s debtor. The court concluded that Beychok neither became

a partner nor acquired a capital interest in Creative Development

but merely became its creditor. Accordingly, judgment was entered

for Creative, dismissing Central States’s claims at its costs. As

it decided the case on that reasoning, the district court never

reached the questions of common control or controlled group

liability for purposes of assessing withdrawal liability.

Victorious, Creative filed a motion urging the district court

to amend its judgment to include an award of costs, expenses, and

at torneys’ fees under ERISA. 2 3 The district court considered the

factors affecting entitlement to such an award and held that it

would not be appropriate. Central States timely appealed from the

district court’s judgment dismissing the withdrawal liability

c l aims against Creative, and Creative cross-appealed from the

district court’s denial of its request for costs, expenses, and

attorneys’ fees.

III.

ANALYSIS

A. Standard of Review24 See Louisiana Land and Exploration Co. v. Offshore Tugs, Inc.,

23 F3d 967, 969 (5th Cir. 1994); American Totalisator Co., Inc. v.

Fair Grounds Corp. , F.3d 810, 813 (5th Cir. 1993).

14 The principal thrust of Central States’s contention on appeal

is that the district court erred in finding the lang uage of the

1986 Agreement to be ambiguous on the question whether Beychok

acquired a capital ownership interest in Creative Development or

merely became its creditor. A district court’s interpretation of

a written agreeme nt, including its initial determination whether

that agreement is ambiguous, presents questions of law and thus is

subject to our de novo review. 24 Findings of historical or discrete

facts are reviewed for clear error.

B. The 1986 Agreement Was Not Ambiguous and Conveyed a Capital

Interest in Creative Development to Beychok

Central States insists that the meaning of the 1986 Agreement

am ong Beychok, Creative Development, and the bakeries, is plain:

Beychok acquired a capital interest in Creat ive Development; any

other reading simply d isregards what the 1986 Agreement actually

says. Central States argues that the transaction conveyed to

Beychok an equ ity or “capital” interest in Creative Development

equal to $50,000, thus giving Beychok and Rome a combined capital

or asset interest in that partnership of more than 80 percent. As

together Rome and Beychok also owned mor e than 80 percent of WBC

and thus of its Wolf Baking subsidiary, concludes Central States,

a combined ownership interest of 80 percent or more of Creative

Development placed R ome and Beychok in “common control” of both25 See 29 U.S.C. § 1301(b)(1) and 26 C.F.R. § 1.414(c)-2(c).

26 See LA. CIV. CODE ANN. art. 2050 (West 1987)(“Each provision

in a contract must be interpreted in light of the other provisions

so that each is given the meaning suggested by the contract a s a

whole .”)(emphasis added) and LA. Civ. Code Ann. art 2047 (West

1987)(“The words of a contract must be given their generally

prevailing meaning.”).

15 businesses. This in turn subjected Creative Development and its

partners to solidary liability for the remainder of Wolf Baking’s

withdrawal liabiity under MPPAA. 25

Creative, of course, rejects this view of the transaction

memorialized in the 1986 Agreement. Creative insists that the

district court correctly determined, vis-à-vis Beychok, the

transaction amounted to nothing more than an exchange of debtors

——

Creative Development for the bakeries

—— on the $50,000 owed to

h im. As such, Beychok was substituted for the bakeries as the

$50,000 creditor of Creative Development; in essence, Beychok only

made a loan to, and became a creditor of, Creative Development.

This, asserts Creative, precludes the pos sibility that Creative

Development and Wolf Baking were under common control.

After carefully reading the 1986 Agreement as a whole and

giving its words their generally prevailing meaning, 26 we agree with

Central States’s position to the extent that it characterizes the

1986 Agreement as unambiguously transferring a capital interest in

Creative Development to Beychok, albeit without admitting him as a

partner. We therefore conclude that, as this interpretation does27 See American Totalisator

, 3 F.3d at 813; La. Civ. Code Ann.

ar t 2046 (West 1987)(“When the words of a contract are clear and

explicit and lead to no absurd consequences

, no f urther

interpretation may b e made in search of the parties’

intent.”)(emphasis added).

28 D.E.W., Inc. v. Local 93, Laborers’ Int'l Union of N. Amer.,

957 F.2d 196, 199 (5th Cir. 1992); Wards Co. v. Stamford Ridgeway

A ssocs.

, 761 F.2d 117, 120 (2d Cir. 1985) (“‘A Cour t will not

torture words to import ambiguity where the ordinary meaning leaves

no room for ambiguity, and words do not become ambiguous simply

because lawye rs or laymen contend for different meanings.’”)

(quoting Downs v. National Cas. Co. , 146 Conn. 490, 494, 152 A.2d

316, 319 (1959)). See also Ideal Mut. Ins. Co. v . Last Days

Evangelical Assoc., Inc. , 783 F.2d 1234, 1238 (5th Cir. 1986)(“As

necessity is the mother of invention, so is ambiguity the father of

multiple reasonable constructions, and where lawyers are involved,

one never lacks an eager parent of either gender.”).

16 not produce any absurd consequences, it must be given effect

without resort to extrinsic evidence. 27

“A contract is not ambiguo us merely because the parties

disagree upo n the correct interpretation. 2 8 In determining the

presence of ambiguity vel non

, we both parse the provision in

question and construe that provision in the context of the entire

document. The particular provision of the 1986 Agreement that we

examine for ambiguity today states:

Creative does hereby sell, transfer, and assign unto Beychok

an interest in that partnership [Creative] equal to said Fifty

Thousand ($50,000) Dollar offset as described hereinabove.

(Emphasis added).

The functional purpose of this provision is to identify the

consideration that Beychok receiv ed from Creative Development in29 The district court char acterized Beychok's role in the 1986

transaction as th at of a friendly creditor who gratuitously

e xchanged one debtor for another without "consideration.” This

conclusion is erroneous in both fact and law. First, in Louisiana

"consideration" has never signified an exchange of equivalents or

quid pro quo but causa or cause. Particularly when, as in the 1986

Agreement, the contract is totally bereft of language of donative

intent, then cause or consideration is akin to motivation. So, as

a matter of law, the 1986 Agreement reflects the presence of

consideration for Beychok and the other parties as well. Second,

if we were to go beyon d the plain language of the agreement

regarding consideration, as did the district court, we would find

that even Common Law consideration was present for Beychok.

Apparently disregarded was the fact that Beychok was an undisclosed

joint venturer with Creative Development in the bread depot

purchase for which Creative Development's $50,000 note was given to

the bakeries. If the note had r emained in the ownership of the

bakeri es and become an asset of the bankrupt estate, Creative

Development would have had to pay it to the trustee or the eventual

holder, and Beychok would have owed one-third of that payment to

Creative Development by way of contribution. So, not only did

Beychok receive a $50,000 interest in a then-viable and

—— by

virtu e of the elimination of its debt to the bakeries —— solvent

p artnership, he was instantly relieved of a $16,667 contri bution

obligation.

17 exchange for the bakeries’ cancellation of the $5 0,000 debt

theretofore owed to them by that partnership. As noted, that

cancellation by the bakeries was made possible by Beychok’s $50,000

reduction of the $324,000 then owed to him by the bakeries. 29

In endeavoring to determine whether t he “interest in that

partnership” that Creative expressly sold, transferred, and

assigned to Beychok could have more than one sensible meaning and

thus be ambiguous, we find it helpful to engage in that venerable

deductive exercise known as the process of elimination. In so

doing, we first identify all of the possible kinds of interests

that the words themselves could conceivably refer to in the context30 LA. CIV. Code ANN. art. 2807 (West 1994).

18 of the entire 1986 Agreement. We then examine each such

possibility to see if it withstands legal analysis and remains a

sensible reading of the agreement. If two or more of the

possibilities remain viable, there is ambiguity; but if only one is

left standing, there is no ambiguity.

Like the district court and the parties before us, we discern

but three possibilities: (a) membership as a partner in Creative

Development; (b) debt owed by Creative Development to Beychok, or

(c) an innominate financial interest (income, capital, or both) in

that partnership, which interest is neither debt nor membership in

the partnership. We proceed to analyze each possibility in order.

1. Beychok as a Partner in Creative Development

After the district court found the presence of ambiguity, it

had no difficulty eliminating membership as a partner in Creative

Development as one of the possibilities of the kind of interest

that Beychok acquired. And, on appeal, neither the appellants nor

the appellees seriously urge that the 1986 Agreement admitted

Beychok into Creative Development as a partner. Clearly it did

not. As Creative correctly explains, under Louisiana partnership

law (1) unanimous action by the parties is requir ed to amend a

partner ship agreement for the purpose of admitting a new partner

unless otherwise agreed, 30 (2) neither the number nor the identity

of the partners of Creative had changed since it was form ed in31 As noted earlier, the 1986 Agreement was not signed at all by

Mrs. Rome or Mrs. Smith, and was signed by Jack Rome only on behalf

of the bakeries; only Terry Smith signed on behalf of Creative

Development.

32 Central States’s assertion that spouses cannot enter into

partnership agreements, thus eli minating the necessity for the

wives of Rome and Smith to have given their assent to the inclusion

of Beychok as a partner in Creative, had been disposed of by the

Louisiana legislature's 1980 revisions of the Civil Code articles

governing matrimonial regimes. See LA. C IV. CODE arts. 2325-2437

(West 1985) and former LA. CI V. CODE art. 1790 of the 1870 Code,

repealed by 1979 La. Acts. No. 711, § 1 (West 1972 Compiled Ed.).

As leading commentators have noted, these rev isions made it

possible for spouses to contract with each other with virtually no

impediments and thus permit spouses to enter, inter alia

, partnership agreements. See Katherine S. Spaht & W. Lee Hargrave,

16 Louisiana Civil Law Treatise § 8:10, at 395 & 398 (West 1989).

In addition, Mrs. Rome did not sign and her husband did not sign as

a partner of Creative Development, but solely as an executive of

the bakeries, the interests of the Romes in Creative Devel opment

were not represented at all in the 1986 Agreement.

19 1981, and (3) the 1986 Agreement was not signed by or on behalf of

all four part ners qua partners. 3 1 In short, as the unanimous

consent of the partners was not evidenced in the 1986 Agreement,

then as a matter of law Beychok could not have been admitted as a

partner. 32 Moreover, the phrase “interest in that partnership”

clearly eschews the contention that the sale, tr ansfer, and

assignment of s uch an interest somehow admitted Beychok as a

partner: Memberships in partnerships are not sold, transferred or

assigned; rather, perso n s are “admitted” into partnerships or

“made” partners. Obviously, then, the first of the three33 The choice of the phrases, “sell, transfer and assign," and

"interest in that partnership" cannot be ascribed to inadvertence

or sloppiness in drafting the 1986 Agreement. We take judicial

notice of the fact that the attorneys who represented all parties

to the 1986 Agreement enjoy superlative reputations in the Baton

Rouge and State bars in the fields of commercial transactions in

general, and both bankruptcy a nd partnership law in particular.

Indeed, we speculate that the language was carefully chosen in an

effort to avoid any possibility of Beychok’s being deemed to be

either a partner in Creative Development or a creditor of that

partnership.

20 possibilities

—— me mbership in Creative Development —— must be

eliminated. 33

2. Beychok as a Creditor of Creative Development

Differing with the district court, we hold as a matter of law

that, whether read “in a vacuum” or in context of the entire 1986

Agreement, the above quoted contractual provision neither

transferred to Beychok the old promissory note that Creative

Development had given to the bakeries in connection with

a cquisition of the bread depots nor created a new debt owed b y

Creative Development to Beychok. First, only the bakeries, as

payee and holder of the old promissory note, had the legal capacity

to tran sfer it, yet there is no record evidence, much less any

provision in the agr eement, reflecting such a transfer by the

bakeries. Conversely, Creative Development was the m aker of the

old note, not the payee or the holder, so it had no legal capacity

to transfer the note. In fact, the 1986 Agreement states that it

“expressly extinguished” the obligation, which under Louisiana law21

voids the note as well. Thus, neither the bakeries nor Creative

ever purported to transfer or assign the old Creative Development

note to Beychok.

Second, there is neither record evidence nor any language in

the 1986 Agreement to indicate that a new or replacement note was

made by Creative when that agreement was executed. There is simply

no evidence that a new note was issued and made payable either to

Beychok or to “Bearer,” then delivered to Beychok.

Absent express transfer or assi gnment of the old note or

creation and delivery of a new note, only the above quoted language

of the 1986 Agreement itself remains as a potential candidate for

evidencing the creation or acknowledgment of debt owed by Creative

Development to Beychok or the transfer or assignment to Beychok of

an o ld debt owed by Creative to the bakeries. Yet absolutely

nothing in that provision sounds in debt. Elsewhere in the 1986

Agreement the p a rties correctly employed such terms as

“indebtedness,” “loan,” “debt,” and “obligation,” and did so with

the profe ssional facility we would expect of learned counsel who

drafted it, thereby confirming the understanding of these terms and

concepts by the parties and their scrivener. Unlike other portions

of the 1986 Agreement, the particular provision that we now review

for ambiguity employs none of these terms of indebtedness. In

fact, none of the traditional objective indicia of a loan or credit34 See Texas Farm Bureau v. United States

, 725 F.2d 307, 311 (5th

Cir. 1984), cert. denied

, 469 U.S. 1106 (1985)(tax case setting

forth a number of factors, largely objective, that may be usefully

considered in resolving debt-versus-equity con troversies);

Retirement Benefit Plan v. Standard Bindery, Co.

, 654 F. Supp. 770,

772-73 (E.D. Mich. 1986)(applying traditional debt/equity factors

to resolve debt/equity controversy in an MPPAA withdrawal liability

case).

35 Creative has urged that if our inquiry were to venture beyond

the four corners of the Agreement, we should follow the Eleventh

Circuit’s decision in Conners v. Ryan's Coal Co., Inc.

, 923 F.2d

1461 (11th Cir. 1991), which states that “[t]he true focus of the

inq uiry [into whether a business relationship qualifies as a

22 relationship are anywhere to be found in the subject p rovision. 3 4

Notably, there is (1) no refer ence to a promissory note

representin g the purported loan or credit obligation, (2) no

maturity date for the purport ed loan, (3) no provision for

repayment of the purported loan, (4) no specification of a rate of

interest or a way to calculate it, (5) no reference to a due date

or “payment on demand," and (6) no provision concerning def ault.

Perhaps most significantly, the subject provision of the 1986

Agreement contains no stipulation that, in the event of termination

or liquidation of the purported debt, assets of that part nership

would be paid to Beychok as a creditor in preference to monies due

to its partners. The complete absence of these objective

indicators of a debtor-creditor relationship far ou tweighs the

subjective testimonial evidence proffered by Creative

—— and relied

on by the trial court —— to support the contention that the

transaction's purpose was to convey an old creditor’s interest or

create a new one. 35partnership for purposes of assessing withdrawal liability] must be

on whether the alleged partners really and truly intended to join

together in the present conduct of the enterprise.” I d. at 14 6 7

(emphasis added). The Eleventh Circuit went on to say, however,

that parties’ intention with respect to the form ation of a

partnership “may be determined with reference to an e xpre s s

agreement or from the c ircumstances surrounding the purported

partner ship agreement.” I d. (emphasis added). Notwithstanding

that under ERISA, Central States need not prove that Beychok became

a member of Creative Development ( see infra text accompanying notes

43 and 44), here the 1986 Agreement and the circumstances

surrounding its confection

—— p rincipally the absence of any

objective indicia of a debtor-creditor relationship —— indicate

that the parties “truly intended” for Beychok to acquire a capital

interest in Creative.

23 Furthermore, were we to have found ambiguity and considered

extrinsic evidence, we would be compelled to observe the presence

of four swo rn documents, executed respectively by Jack Rome,

Beychok and Rome, the bakeries’ bankruptcy counsel, and Wolf

Baking's comptroller, each of which was prepared for admission in

various bankruptc y proceedings, and all of which uniformly state

that Beychok wa s either a partner in or an owner of Creative

Development. This is far too uniform and consistent to be

explained away by press of the lawyers’ business. As a minimum,

this independent sworn documentation would cast serious d oubt on

the subjective, self-serv ing testimonial evidence relied on by

Creative and the district court to support the conclusion of debt,

and would further support our conclusion that the 1986 Agreement

was not intended to transfer a note to Beychok or to create a36 When the 1986 Agreement was confected in June, there was no

short fuse or mad scramble to rationalize the absence of debt

terminology —— the excuse proffered for the references to Beychok

as a partner in bankruptcy documents. And, despite the district

court’s reliance on the shaky extrinsic evidence, even it depicts

the financial vice-president of Creative Development testifying

that Beychok had an interest in Creative Development, and neither

Rome nor Beychok unequivocally denying that Beychok had an interest

in the partnership

—— only that he was not a partner, thus begging

the question. Even if the extrinsic evidence were admissible, the

conclusion of the district court made in reliance on it —— in the

face of all other testimony and documentation —— would be clearly

erroneous to the extent it characterized Beychok’s interest as that

of a creditor.

37 LA. CIV. CODE ANN. art. 2046 (West 1987).

24 debtor-creditor relationship between Beychok and the partnership. 36

It follows inesca pably that, like membership in Creative

Development, debt too must be eliminated as the type of

consideration that Beychok received in the transaction memoralized

by the 1986 Agreement.

3. Beychok as the Owner of a “Capital Interest” in Creative

Development

Having determined that the “interest in that partnership”

sold, transferred, and assigned to Beychok was neither membership

for him in Creative Development nor debt owed to him by that

partnership, all remains to be done is to identify precisely what

interest Beychok did acquire from Creative Development in the 1986

transaction, and whether identi fying the interest as such would

lead to “absurd consequences.” 37

Creat ive takes the position that the process of elimination

supports the district court’s dete rmination that the “interest”38 LA. CIV. CODE ANN. art. 2818 rev. cmt. c (West 1994) (emphasis

added); see also LA. Civ. CODE ANN. art. 2823 (W est 1994) (The

successor of a partner is “entitled to an amount equal to the value

that the share of the former partner had at the time membership

ceased.”).

25 Beychok received was that of a creditor. Creative does so first by

eliminating the possibility that the Agreement made Beychok a

partner (with which we and the district court —— and, presumably,

Central States —— all agree). But Creative then asserts that, as

a matter of state law, the “in that partnership” that Creative

Development trans ferred to Beychok could not have been a capital

interest. Creative insists that Louisiana law does not permit a

non-partner to acquire and own a capi tal or equity interest in a

partnership without first being or becoming a partner. In this

contention Creative badly misapprehends

—— or consciously

mischaracterizes —— Louisiana partnership law.

In a number o f circumstances, Louisiana law does in fact

permit persons who are not partners to acquire capital or equity

i nterests in the partnership. Perhaps the most commonly

encountered example occurs when a partner dies. Although the heirs

or legate es of the deceased partner do not themselves become

partners, they nevertheless do, in the absence of a contrary

provision in the partnership agreement, “inherit t he interest of

the deceased partner, which entitles them to be paid as provided in

Civil Code Article 2823 et seq. ” 38 The same holds true in the

instances of (1) a creditor who seizes the interest of a partner,39 See L A

. C IV

. C ODE A NN . arts. 2818 and 2823.

40 L A

. C IV

. C ODE A NN . arts. 2812 (West 1994) (emphasis added).

41 Id. rev. cmt.

26 (2) a partner who voluntarily withdraws or is expelled from the

partnership, and (3) a partner whose membership in the partnership

termin ates pursuant to provisions of the partnership agreement. 3 9

In each of these variations, there exists “an interest in the

partnership” that has value and must be accounted for, even though

the successor to such interest never was or has cease d to be a

partner.

The point is even more vividly demonstrated by the situation

contemplated in article 2812 which provides that “partner may share

his interest in the partnership with a third person without the

consent of his partners, but he can not make [the third person] a

member of the partnership....” 40 This code article, which follows

the approach of the French Civil Code, recognizes that, “[i]n the

absence of an express prohibition in the partnership agreement, a

partner may associate a third person in his interest in the

partnership [even though] the association would not make the third

person a partner. ” 41 And we are aware of nothing in Creative

Development’s partnership agreement that prohib its the total or

partial sale, transfer, or assignment of an interest to a nonpartner third person. Obviously, it would be sophistry for

Creative to argue that a partnership cannot “transfer, and assign”42 See LA. CIV. CODE art. 2046; A merican Totalisator

, 3 F.3d at

813.

43 Even if the determination of ambiguity had not been erroneous

and consideration of extrinsic evidence of intent had been

admissible, we would have found the court’s “debt” conclusion to be

clearly erroneous.

27 that which can be a lienated by a partner. Moreover, as such a

disposition does not require admission of a new p artner or

amendment of the pa rtnership agreement, nothing in the Louisiana

Civil Code or the partnership agreement mandates unanimous consent

of the partners.

In sum, these examples confirm that Louisiana partnership law

anticipates and expressly provides for the possibility that a third

person may acquire and possess (at least for a time) “an interest

in a partnership” —— capital or income or both —— without being a

partner. We are satisfied that our interpretation of the 1986

Agreement as unambi guously transferring to Beychok a capital

interest in Creative Development (and conceivably, though

unimportantly, an inc ome interest as well) does not produce any

consequences that are impossible under Louisiana partnership law or

either nonsensical or absurd. Therefore this reading must be given

effect without exiting the four corners of the 1986 Agreement to

conduct further inquiry into the intentions of the parties. 4 2 It

follows that the district court’s resort to extrinsic evidence of

intent was unwarranted and eventually led to revers ible error in

both methodology and substance. 4344 See 26 C.F.R. §§ 1.414(c)-2(c)(b)(2)(I)(c) (“controlling

interest”) and 1.414(c)-2(c)(2)(iii) (“effective control”).

45 Id.

28 C. Withdrawal Liability

1. Membership as a Partner is Not a Prerequisite

As a final observation in the circuitous and arcane route to

the determination of withdrawal liability of all members of a

controlled group, we underscore the truism that, to rec over for

withdrawal liabil ity under MPPAA, an ERISA multiemployer pension

plan need not prove that one who, with others, owns a “controlling

interest” in, and exercises “effective control” over, a partnership

that is one organization in a purported controlled group of trades

or businesses, actually satisfies all of the state law requirements

to be a partner in such partnership. 44 Rather, all that MPPAA and

its implement ing regulations require is that such person own the

requisite percentage of a “profits interest” or a “capital interest”

in that partnership. 45 As we have determined that the interest in

Creative De velopment that Beychok acquired by virtue of the 1986

Agreement was a “capital interest” within the meaning of 26 C.F.R.

§ 414(c)-2, there can be no serious disagreement with the

proposition that the interests of Beychok and Rome in both Creative

Development and the bakeries are such that they must be tested to

determine whether the requisite percentages

—— over 50 percent for

“effective control” and 80 percent or more for the “controlling

interest”

—— are present, irrespective of the fact that Beychok’s29

capital interest in Creative Development was not owned by him as a

partner. If those capital interests are found to be present in such

percentages, Creative Developmen t and its partners cannot avoid

solidary liability for the deficiency in the ba keries, withdrawal

liability to Central States simply because Beychok was not a fullfledged partner in Creative Development.

If there are some who feel that controlled group rules produce

unduly harsh res ults or set traps for the unwary, they should not

turn a blind eye to all the facts that Rome and Beychok, as well as

able counsel, knew or should have known when they confected the plan

to salvage what they could from the impending bankruptcy of the

bakeries. They had to have known, for example, that the bakeries

(1) employed union l abor, (2) were parties to a CBA, (3) were

participating employers in a multiemployer pension plan pursuant to

the CBA, (4) were approaching imminent bankruptcy, and (5) would,

by virtue of bankruptcy, cease to participate in that multiemployer

plan, leaving a substantial deficit in funding and thus withdrawal

liability. As such, Rome, Beychok, and their counsel also knew or

should have known that opting to confect and enter into the 1986

Agreement, which purposefully employed carefully crafted language

that clearly eschews partner status for Beychok but just as clearly

eschews debtor-creditor relationship between Creative and Beychok,

was a high-risk endeavor. It amounted to flying perilously close

to the fl ame that always burns brightly when super-majority

interests i n two separate entities are vested in five or less46 Creative made an alternative argument which the district court

never reached. First, Creative notes that following the 1982 sale

and leaseback transaction involving the bakery depots, Central

States demanded and obtained from Wm. Wolf Bakery a collateral

mortgage position superior to Creative D evelopment on its bakery

depots, the express purpose of which was to secure payment to

Central States of a portion of the bakery’s pension contribution

obligation. Th e documentation of this arrangement states that

Creative Development would have no personal liability and that the

security would provide Central States with only an in rem claim on

the depot properties. Creative argues that Central States should

be estopped from seeking to make Creative liable in personam in

this action. But Creative’s estoppel argument suffers from two

fatal defects: (1) The release agreement was drafted and executed

b efore withdrawal liability was triggered and assessed, an d thus

cannot be construed as releasing a claim that a t the time was at

30 individuals and one of those entities is a participating employer

in a multiemployer pension plan.

Neither should the histor y of intertwined business dealings

among Rome and Beychok and the organizations that they owned and

controlled be disregarded. The 1986 Agreement was no chance

encounter; these two businessmen ha d been in business with each

other on a number of prior occasions, in both the bakery business

and the real estate business. And on at least one occasion —— the

1982 bakery dep ot transaction —— both individuals as well as the

bakeries, Creative Development, and the Smiths were directly

involved. In hindsight, it may well prove to be regrettable for

Creative if the tangled web they helped w eave by confecting and

entering into the 198 6 Agreement, and possibly the bakery depot

join t venture as well, ultimately traps its weavers. Yet that

distinct possibility was

—— or at least should have been

—— a known

risk. 46best inchoate and contingent, see 66 A M

. J UR

. 2 D R ELEASE § 33, at 710-

11 (“A release which in terms covers only a present right will not

be construed to discharge a demand which was then uncertain and

contingent.”); and (2) the text of the relevant document expressly

released Creative Development from liability for “delinquent

pension and health and welfare contributions ” (emphasis added), not

from wi thdrawal liability. The “contributions” referred to are

simply an employer’s ongoing, periodic payments to a pension plan

trust on behalf of participant employees; withdrawal liability, on

the other hand, is a well-defined term of art for an employer’s pro

rata, unfunded vested benefit obligation that is assessed under

MPPAA after the obligation to make contributions has ended.

Creative’s release argument confounds these two obligations, even

though the document at issue was only concerned with contributions,

not withdrawal liability. Creative’s estoppel claim that Central

States release Creative from withdrawal liability fails.

31 2. Render or Remand ?

Time and again in its briefs and post-argument su bmittals,

Central States expresses or implies that if Beychok’s $50, 000

interest in Creative Development is found to be a capital interest

and not a creditor’s interest, the conclusion is foregone that

Beychok and Rome together owned at least 80 percent of the capital

interest in both Creative Development and the bakeries at the time

in question, and that those two organizations would be under common

control per se

. Central States finds this same conclusion implicit

in the district court’s opinion as well. Even though at this

juncture the presen ce of the “at least 80 percent” factor is

irrefutable as to the bakeries, its presence is le ss than certain

as to Creative Development.

More significant (and curious) is the observation that nowhere

does Central States advert to the f act that the 80 percent47 26 C.R.F. § 1.414(c)-2(b)(2).

48 “The term ‘brother-sister group of trades or businesses

under common control’ means two or more organizations conducting

trades or businesses if (i) the same five or fewer persons who are

individuals . . . own . . . a controlling interest in each

organization [first prong], and (ii) taking into account the

ownership of each such person only to the extent such ownership is

identical with respect to each such organization

, such persons are

in effective control [second prong]

. . . . 26 C.F.R. 1.414(c)-

2(c)(1)(emphasis added).

49 Id

.

50 26 C.F.R. § 1.414(c)-2(c)(2)(iii).

51 26 C.F.R. § 1.414(c)-2(c)(1)(ii)(emphasis added).

52 26 C.F.R. S 1.414(c)-2(e) Example (4).

32 “controlling interest” factor is but one of two prongs of the

conjunctive test for “common c ontrol.” 4 7 Although the 80 percent

test determines “controlling interest,” that is only one-half of the

“common control” calculus. 48 The other half —— “effective control”

—— is det ermined under the second prong of the test for common

control in the brother-sister context. 49 For partnerships,

“effective cont rol” is defined as “an aggregate of more than 50

percent of the...capital interest of such partnership.” 50

Importantly, this second, “effective control” prong takes into

account the “ ownership of each su ch person [singular] only to the

extent such [person’s] ownership is identical with respect to each

such organization.” 51 One need only consider the relevant example

set forth in the regulation 52 to realize that the “ effective

co ntrol” prong of the common control test is no simple arithmetic53 26 C.F.R. § 1.414(c)-2(c)(1)(ii) .

33 exercise; after all, if it were, there would always be a “more than

50 percent” capital interest when the persons in question satisfy

the co ntrolling interest “at least 80 percent” prong of the test.

But in the “effective control” second prong there is a tricky factor

lurking just beneath the surface of the facially murky phrase, “only

to the extent such ownership is identical with respect to each such

organization....” 53

The turbidity of that phrase, especially the operative word

“identical,” clears up considerably, however, when the “e ffective

control” test is applied to actua l examples. In this second prong

test, the ownership of each person must be examined separately,

focusing on one person’s ownership i n each organization under

consideration to find his or her ownership only to the extent it is

identical in each organization

. Practical application of this test

reveals, every time, that the identity of ownership for each person

is the smallest percentage that he or she owns in any of the

targeted organizations.

Purely for purposes of illustration, we will employ Central

States’s post-argument approach to ascertaining the percentages for

Rome and Beychok, i.e., determining the percentag es of capital

ownership in Creative Development on the basis of the parties’

respective capital contributions. Thus we begin this hypothetical

example by assuming that, of the total capital contribution of54 $2,500 from the Roses, $2,500 from the Smiths, and $50,000

from Beychok.

34 $ 55,000, 54 Rome’s $2,500 represented 4.545 percent and Beychok’ s

$50,000 repre sented 90.9 percent. As for the bakeries, it is

undisputed that Rome’s percentag e of the stock in WBC was 23-55

percent and Beychok’s was 61.45 percent. In this example, then,

Rome’s “identical” ownership in the two businesses would be 4.54

percent, i.e., his percentage of ownership interest in the capital

of Central States; the difference between that percentage and his

larger percentage of ownership in the bakeries drops out as nonidentical. In like manner, Beychok’s “identical" ownership in the

two businesses would be 61.45 percent, i.e., his percentage of

ownership interest in WBC; the difference between that percentage

and his larger hypothetical percentage of ownership in Creative

Development drops out as non-identical.

In this illustration, the “identical” ownerships of Rome and

Beychok

—— 4.54 percent for Rome and 61.45 for Beychok, for a total

of 65.99 percent

—— obviously satisfy the second prong, “effective

control” test which only requires an aggr egate of more than 50

percent. Indeed, Beychok alone satisfies that test, as he is “five

or fewer persons” and his “identical” ownership in each organization

is more than 50 percent.

Additionally, in this hypothetical example, the first prong,

“cont rolling interest” test for common control would be satisfied

because the first prong examines seriatim t he capital owners’55 Following oral argument to this panel, Creative and Central

States were asked to file joint stipulations that could have

provided factual information sufficient for the panel to determine

the eleme nts of controlling interest and effective control.

Regrettably, the parties failed in this cooperative effort, thereby

depriving us of the opportunity to render a judgment and end this

35 combined percentage in each separate trade or business . Based on

his hypothetical 90.9 percent capital interest in Creative

Development, Beychok alone would satisfy the “at least 80 percent

of the...capital interest” test for the partnership. And together,

Beychok’s 61.45 percent and Rome’s 23.5 5 percent of the stock of

WBC, totaling 85 percent, would satisfy the “at least 80 percent”

test of both the voting power and the total value of all shares of

all classes in the bakeries.

As the district court concluded that the 1986 Agreement (which

it found ambiguous) neither admitted Beychok into Creative

Development as a partner nor conveyed “an interest in” Creative

Development to him, but instead made him a credito r to the extent

of $50,000, the court never reached or addressed the crucial MPPAA

question wh ether separately or jointly Rome and Beychok had

“controlling interest” in and “effective control” of both Creative

Development and the bakeries. Moreover, the status of the record

on appeal is such that

—— without engaging in substantial appellate

fact finding regarding matters that at th is juncture are not

uncon tested, stipulated, or otherwise clear beyond cavil —— we

cannot determine whether Rome and Beychok had controlling interest

and effective control. 55 And, as we decline to engage in suchlitigation.

56 26 C.F.R. § 1.414(c)-2(b)(2)(C) and (c)(2)(iii).

36 inappropriate fact finding, we are not able to render a judgment in

this case, one way or the other. Instead, we are constrained to

remand it to the district court for the limited purpose of adducing

the evidence that it needs to make such in dispensable factual

determinations and calculations.

Inasmuch as the governing reg ulation on this point expresses

“controlling interest” and “effective control” in percentages

, 56 the

fundamental factual determination that the district court must make

on remand is the percentage of the cap ital interest in Creative

Development that Beychok owned at the time the bakeries “withdrew”

from Central States. This will require the court to adduce

sufficient evidence to enable it to convert Beychok’s $50,000

capital interest into a percentage. More specifically, the court

must first convert that dollar amount to a percentage as of June 1,

1986, and t hen find whether, between that date and the effective

date of the bakeries’ wi thdrawal from Central States, Beychok’s

percentage changed or remained the same. The district court must

also ascertain the percentage of Rome’s capital ownership in

Creative Development as of the relevant time or times, presumably

one-half of the figure derived by subtracting Beychok’s percentage

from 100 percent. Then, with those percentages firmly established,

the court must proceed to determine whether Beych ok and Rome (or57 26 C.F.R. § 1.414(c)-2(c)(1)(ii) and (c)(2)(iii). The court

must also test the bakery depot joint venture’s ownership against

the bakeries as of the latter’s withdrawal for the presence of

“controlling interest” and thus controlled group status, once the

percentage of Beychok’s capital interest in Creative Development is

determined. Even though it appears counterintuitive that Beychok

and Rome could fail to have con trolling interest in Creative

Development and the bakeries, while having a controlling interest

in the joint venture and the bakeries, it is also counterintuitive

that such a situation is beyond the realm of mathematical

possibility, thus the need for testing.

37 Beychok alone) owned at least 80 percent of the capital interest in

the partnership for purposes of “controlling interest.” Thereafter,

taking into account Beychok’s and Rome’s respective ownerships “only

to the extent such ownership is identical” in both the partnership

and the bakeries, the court must ascertain whether those two

individuals (or one of them alone) owned more than 50 percent of the

capital interes t —— and thus “effective control” —— in both

Creative Development and the bakeries. 57

Should the district court ultimately conclude that both prongs

of the common cont r ol test are satisfied, it must then render a

judgment assessing Creative’s responsibility (and th at of its

partners) for the delinquency in the withdrawal liability owed by

the bakeries to Central St ates. If, however, the court concludes

th at either prong of that test is not satisfied, it must render a

judgment dismissing Central States’s action against Creative and its

partners.

In the interest of judicial economy and to avoid the need for

another p anel of this court to “reinvent the wheel” if either or38

both sides are so disappointed with the district court’s findings

and rulings on remand that they appeal, this panel retains appellate

jurisdiction pending this limite d remand to the district court.

Consequently, regardless of whether or not the district court finds

on remand that the require d joint or aggregate percentages of

“controlling inte rest” and “effective control” are sufficient to

constitute “common control” and thus impose controlled group

liability on Creative under MPPAA, any appellate review will be

conducted by this panel.

IV.

CONCLUSION

The district court reversibly erred in holding that the 1986

Agreement was ambiguous, and it compounded the error by considering

extrinsic evidence of the parties’ intent and basing its judgment

on that evidence. We conclude d e novo that the 1986 Agreement was

not ambiguous and t hat it conveyed a capital interest in Creative

Development to Sheldon Beychok. Consequently, if in combination the

interests of Beychok and Rome in both Creative Development and the

bakeries are ultimately found to be sufficient to constitute

Creative Development a member of the same controlled group of trades

and bus inesses as Wolf Baking, then Creative Development and its

partners, the Romes and the Sm i ths, will be liable in solido to

Central States for th e outstanding balance of Wolf Baking’s

withdrawal liability.39

Only one facet of one prong of the two-prong comm on control

test is discernible from the record on ap peal: In both combined

voting power and total value, Rome’s and Beychok’s shares of stock

in WBC were sufficient to vest those two shareholders with a

“controlling interest.” Without engaging in inappropriate appellate

fact finding, however, we cannot convert Beychok’s dollar interest

in Creative Development to a percentage interest. And without that

indispensable piece of the puzzle befor e us, we are unable to

determine whether Beychok’s and Rome’s combined capital o wnership

in Creative Development equaled a t least 80 percent and thus

constituted a controlling interest in that partnership. For the

same reason, we are unable to determine the extent of either

Beychok’s or Rome’s ownership interests in those two business

organizations to the extent that they are “identical with respect

to each,” so we cannot say whether those two individuals had

“effective control” of the bakeries and the partnership. It follows

that neither we nor the district court can tell whether the two

business organizations were under “common control” for purposes of

MPPAA, a determination that is critical to either court’s ability

to decide whether Creative Development and its partners have

solidary withdrawal liability to Central States.

Accordingly, we reverse the district court's judgment that

dismissed Central States’s withdrawal liability claims, a nd we

remand the case t o that court for the limited purpose of (1)

determining the several ownership percentages required to test for40

the presence of common control; (2) applying the percentages thus

determined to both prongs of the common c ontrol test; and (3) if

common control is found to have been present, assessing the quantum

of Creative’s withdrawal liability to Central States and rendering

a judgment accordingly. In the interest of judicial economy, this

p anel retains appellate jurisdiction for the purpose of reviewin g

the determinations and judgment of the district court on re mand,

should the parties or any of then elect to appeal.

REVERSED and REMANDED with instructions; appellate jurisdiction

retained by this panel.41

DENNIS, Circuit Judge, dissenting:

I r espectfully dissent because (1) the Central States

plaintiffs failed to establish the necessary factual basis under

Louisiana partnership law to prove that Terry Smith was authorized

to amend the Creative partnership contract so as to change the

proportion ate share of each partner’s capital interest and to

transfer an interest in the capital of Creative to a third person;

(2) under Louisiana law a partnership agreement is a simple

contract, and the unanimous consent of the partners is required to

amend the partnership contract; (3) the maj ority concedes that

plaintiffs failed to prove that Terry Smith was auth orized by

unanimous consent of the Creative partners to act for them in his

transaction with Beychok; (4) because an amendment of the

partnership contract is required to change or affect any partner’s

capital or profit interest, Terry Smith was not authorized to grant

or transfer to Beyc hok an interest in the capital of the Creative

partnership; (5) under Louisian a law a partner may agree between

himself and a third person to share that partner’s interest in the

partnership, but such an agreement cannot give the third person any

interest in the partnership or affect the other partners’ interests;

and a partner’s heirs, assigns, or seizing creditors are entitled

to an amount equal to the value that the share of the former partner

had at the time membership ceased; but, a t hird person cannot

acquire, succeed to, or seize a partner’s membership or interest in

the capital of the partnership without amendment of the partnership42

contract, which requires unanimous consent of the othe r partners;

therefore, lacking unanimous consent of the partners to amend the

partnership contract, Beychok could not acquire an interest in the

capital of the partnership; ( 6) contrary to the majority’s

assumption, the federal laws and regulations do not consider that

anyone oth er than a partner has an interest in the profits or

capital of a partnership.

I. Determinative Issue on Appeal

In order to hold the individual Creative partners liable for

the $1.35 million withdra wal liability of Wolf Baking, Central

States must prove (1) that Creative was under “common control” with

Wolf Baking and (2) that both Creative and Wolf Baking were “trades

or businesses.” S ee 29 U.S.C. § 1301(b)(1). S ee, e.g.

, Central

States v. Personnel, Inc.

, 974 F.2d 789, 792 (7 th Cir. 1992);

Central States v. White

, 2000 WL 690346, *4 (N.D. Ill .); Central

States v. Stroh Brewery Co.

, 220 B.R. 959 (Bankr. N.D. Ill. 1997).

The district court found that the two entities involved, Creative

and Wolf Baking, were never under common control, and therefore that

the Creative partners were not liable for Wolf Baking’s debt under

the MPPAA. Because the district court apparently did not reach the

issue of “trades or businesses,” we are called upon to decide only

whether Creative and Wolf Baking were under common control under the

MPPAA, applicable Treasury regulations, and Louisiana partnership

law.43 II. The MPPAA and the Treasury Regulations

under section 414(c) of Title 26

The MPPA provides that “under regulations prescribed by the

[Pension Benefit Guaranty Corporation], all employees of trades or

businesses (whether or not incorporated) whic h are under common

control shall be treated as a single employer. The regulations

presc ribed under the preceding sentence shall be consistent and

coextensive with regulations prescribed for similar purposes by the

Secr etary of the Treasury under section 414(c) of Title 26.” 29

U.S.C. § 1301(b)(1). In the absenc e of independent regulations

promulgated by the corporation, we refer to the pertinent Secretary

of the Treasury’s regulations, 26 CFR § 1.414(c).

The criteria for determining whether there i s common control

of a “brother-sister group of trades or businesses” is provided by

26 CFR § 1.414(c)-2(c). The definition of such a group requires,

inter alia, that the same persons own a controlling interest in each

of the trades or businesses in question. With respect to

partnerships, § 1.414(c)-4(a) states: “In determining the ownership

of an interest in an organization for purposes of § 1.414(c)(2) .

. . the term ‘interest’ means: in the case of

. . . a partnership,

an interest in the profits or capital.” 26 C.F.R. § 1.414(c)-4(a).58 T he same is true with respect to a “profits interest” in a

partnership. See cited material in the text accompanying note 4;

A RTHUR B. W ILLIS

, ET

. AL

, P ARTNERSHIP T AXATION ¶ 1.07[4] at 1-114 (6 th Ed.

1999) (“Neither the Code nor the Regulations contains a definition

of a profits interest in a partnership. However, Regulation §§

1.721-1(b)(1) and 1.704-1(e)(1)(v) discuss partnership capital

interests in such a way as to indicate that a profits interest is

one which does not entitle the partner to share in partnership

assets upon the partner’s withdrawal from the partnership or upon

the partner’s liquidation.”) (emphasis added). However, the

majority opinion focuses on whether Beychok acquired a “capital

interest” (presumably because it is indisputable that he had no

right to share in the profits of Creative), so that is the focus of

my dissent as well.

44 The majority apparently assumes that the regulation implicitly

recognizes that an “inter est in the profits or capital” of a

partnership may be transferred by a single partner to a third party

who is not a partner. The majority does not cite any authority for

that proposition, a nd I have found no indication of such a

phenomenon. In the common usage of the Internal Revenue Code, the

Secretary of the Treasury’s regulations, tax law scholars, and tax

law practitioners, “capital interest” refers, in the partnership

context, to a partner’s capital interest. In fact, the Internal

Revenue Code and regulations evidently presume that only the

partners own interests in the capital of the partnership. 58 S ee 26

U.S.C. §§ 706(b)(1), 706(b)(3), 707 (b)(1)(A), 707(b)(2)(A),

708(b)(2)(A), 708(b)(2)(B), 743(b); 26 C.F.R. §§ 1.721-1(b)(1),

1.704-1(e). Regulation § 1.704-1(e), which “defines a capital

interest as any interest in the assets of the partnership to which

the partner is entitled upon withdrawal from the partnership or upon59 In explaining the significance of the terms “capital interest”

vs. “profits inte rest” in a partnership for tax purposes, Willis

states that “[i]n several areas of partnership tax law, important

consequences turn on the measurement of the partners ’ interests in

capital, profits, or both.” Id . at 1-110 (emphasis added).

45 the liquidation of the partnership and distinguishes that interest

from a mere right to participate in the earnings and profits of the

partnership[, provides an]

. . . appropriate definition for most,

if not all, purposes of the Code.” A RTHUR B. W ILLIS

, ET

. AL

, P ARTNERSHIP

T AXATION ¶ 1.07[3] , at 1-112 (6 t h Ed. 1999)(hereinafter

“Willis”)(emphasis added). 59 Consequently, I believe the majority

is mistaken in its apparent assumption that the Federal tax laws and

Treasury regulations suggest the existence of substantive

partnership laws permitting a single partner to favor third persons

with free-floating interests in the profits and capital of the

partnership without the consent of the other partners.

III. Louisiana Law of Partnerships

Proceeding under the false conception that someone other than

a partner can hold a capital inte rest in a partnership under the

applicable Federal Tax laws and Treasury regulations, the majority

opinion mistakenly concludes that such an arrangement is possible

under Louisiana partnership law. The majority concludes that (1)

under Lou isiana law any partner of a partnership, without either

authorization by the partnership agreement or the unanimous consent

of the partners, has the legal power to create and transfer to a60 I also disagree with the majority opinion’s statement of the

law with respect to releases of future liability. The majority,

supra n.46, summarily dispenses with Creative’s estoppel argument

by concluding, in part, that the release agreement could not be

construed as releasing the withdrawal liability claim as the

agreement wa s executed before withdrawal liability was triggered

and assessed.

Louisiana law clearly allows releases of future actions before

they arise if the parties clearly so intend. La. Civ. Code art.

3073; B rown v. Drillers, Inc.

, 630 So.2d 741, 744, 753 (La.

1994); Ritchey v. Aza r , 383 So.2d 360, 363 (La. 1980); B ogalusa

Community Med. Ctr. v. Batiste

, 603 So.2d 183, 188 (La. App. 1 Cir.

1992). S ee also A merica’s Favorite Chicken Co. v. Suryoutomo

, 889 F.Supp. 916, 918 (E.D. La. 1995)(assignment agreement released

all past, present, or future claims arising under franchise

agreement). Relinquishing future rights of action is not against

public policy unless such rights arise from physical injury or from

the gross fault or intentional wrong of another party. Daigle v.

Clemco Industries , 613 So.2d 619, 623 (La. 1993). Such releases,

however, will be narrowly construed to assure the parties

understand the agreement and its consequences. B rown

, 630 So.2d at

753.

Furthermore, as I read all of the passages of the authority

cited by the majority opinion, the common law is consistent with

Louisiana law in this respect. A merican Jurisprudence Second

provides, in pertinent part,

46 third person a capital or an income interest in the partnership; and

that (2) Central States proved by a preponderance of the evidence

that the undefined “inter est” in Creative which Terry Smith

transferred to Beychok was intended by them to be an interest in the

c apital of the partnership. In my opinion, the majority’s

interpreta tion of the Louisiana partnership law provisions is

contrary to the plain meaning of the law, and its finding that Terry

Smith intended and was authorized to transfer a capital interest in

Creative to Beychok in the June 1, 1986 agreement is not supported

by the contract or the record as a whole. 60The scope of a release is determined by the intention of

the parties as expressed in the terms of the particular

instrument, considered in the light of all the facts and

circumstances.

66 A M

. J UR

. 2 D Release §30, p. 706.

[R]eleases of rights which have not y et matured under

contracts have been held valid and are self-operative,

and discharge the future rights or claims when they

arise. A release which covers only a p resent right will

not be construed to discharge a deman d which was then

uncertain and contingent.

66 A M

. J UR

. 2 D Release § 33, p. 710. (emphasis added). The ultimate

effect of the release, therefore, depends on the parties’ intent.

Accord C.J.S. Release § 66, p. 617.

47 A. Terry Smith Was Not Authorized to Enter

the Transaction on Behalf of Creative

For proof that Beychok owned a capital interest in Creative,

Central States relies upon the June 1, 1986 written contract whereby

Terry Smith professed to transfer to Sheldon Beychok an undefined

“interest” in the Creative partnership. Smith was the only

signatory or party who claimed that he acted in behalf of Creative.

Jack S. Rome, Jr., a partner in Creative, professed to act and sign

the contract only on behalf of Wolf Baking. Beychok signed only for

himself individually. Central States failed to introduce any

evidence to prove that the other partners of Creative, Jack S. Rome,

Jr., Suzanne McCraine Rome, and Sandra Theriot Smith, authorized or

ratified Smith’s transfer of the undefined “interest,” much less an

interest in the capital of Creative, to Beychok. Even if it could

be assumed without supporting evidence that Rome, as a partner in48

Creative, by signing the contract only for Wolf Baking, consented

for himself t o Smith’s transfer of an undefined “interest” to

Beychok, there is still no evidence of consent by the other partners

and none that Rome intended for Smith to transfer an interest in the

capital of Creative to Beychok.

B. Such Unauthorized Transfer Is Not

Allowed Under Louisiana Law

Under Louisiana l aw, a partnership is a juridical person,

distinct from its partners. La. Civ. Code art. 2801. The

legislative decision to establish a partnership as a separate and

distinct entity, diff erent from its partners, expressly reflected

in Article 2 801, permeates all of the Louisiana Civil Code’s

partnership provisions. Max Nathan, Jr., Reporter, Partnership Law

Revision Committee, Introduction: 1980 Partnership Revision, 12

West’s LSA Louisiana Civil Code pp. 3, 5 (1994). When partners

create a partnership, they utilize contract law to create a new,

separate and distinct legal entity. Id

.

Unless the partners have agreed otherwise in the partnership

agreement or subsequently, each partner participates equally in the

profits, commercial benefits, and losses of the partnership. La.

Civ. C ode art. 2803. Unanimous agreement of the partners is

required to amend the partnership agreement, to admit new partners,

or to terminate the partnership. La. Civ. Code art. 2807. Major

decisions of thi s type obviously are of sufficient importance to49

require the unanimous agreement of the partners. I d

., comment(b).

In the absence of an express prohibition in the partnership

agreem ent, a partner may share or associate a third person in his

own interest in the partnership without the consent of his partners,

but this association in the single partner’s interest does not make

the third person a member of the partnership. La. Civ. Code art.

2812 and comment.

A partner is a mandatary or agent of the partnership for all

matters in the ordinary course of its business, except for the

alienation, lease, or encumbrance of the partnership’s immovables.

La. Civ. Code art. 2814. The scope of authority of the mandate

created by this article is limited to acts within the ordinary

course of the business of the partnership. Id ., comment (a).

T he Civil Code provides for the cessation of a partner’s

membership in the partnership due to certain causes and for the

effects of that cessation of membership. A partner ceases to be a

member of a partnership upon any of the following: his death or

interdiction; his being granted an order for relief under Chapter

7 of the Bankruptcy Code; h is interest in the partnership being

seized under a writ of execution and not released within thirty

days; his expulsion from the partnership; or his withdrawal from the

partn ership. La. Civ. Code art. 2818. The occurrence of any of

the enumerated events terminates the membership of the partner, not

the partnership itself. I d

., comment(a). Upon such a cessation of61 The rule that the partnership need only make a payment in

money protects the partnership in that it does not have to

partition its assets in order to make a payment. La. Civ. Code

art. 2824, commen t (a). The value of the interest may be set by

the partnership agreement or by separate agreement, or it may be

judicially determined pursuant to the provisions of Article 2825.

La. Civ. Code art. 2823, comment (a).

50 membership, the for mer partner, his successors, or the seizing

creditor is entitled to an amount equal to the value that the former

partner’s share had at the time members hip ceased, and the

partnership must pay in money that amount as soon as it is

determined. La. Civ. Code arts. 2823, 2824. This amount bears

interest from the time the party ceases to be a partner. La. Civ.

Code 2824 and comment (b). The former partner, his successor, or

his seizing cred itor is not entitled to an interest in the assets

of the partnership, but is only entitled to be paid an amount equal

to the value of his interest as of the time his membership ceased.

La. Civ. Code art. 2823, comment (a ); La. Civ. Code art. 2824. 6 1

The term “successors” includes heirs, assigns, or anyone standing

in the shoes of the former partner. La. Civ. Code art. 2823,

comment (b).

Applying the legal prin ciples of partnerships to the present

case, it is clear that Terry Smit h’s act in entering the 1986

agreement did not have the legal effect of granting Beychok a right

t o a share in the capital, profits, benefits or assets of the

Creative partnership. Obviously, Terry Smith’s actions exceeded a51

partner’s scope of authority to act as an agent for the partnership,

which is limited to acts within the ordinary course of business of

the partnership. La. Civ. Code art. 2814, comment (a). No one

contends that Smith’s action was within the ordinary course of

business. Creative’s partnership agreement expressly provided for

equal part icipation by the partners and did not authorize any

partner to grant a third person a share in the capital, pro fits,

income, benefits, or assets of the partnership or to effect a change

in the equal one-fourth share of each of the four partner s in the

capital, profits, benefits, and assets of the partnership. In fact,

Creative’s articles of partnership expressly provide the following:

“The net profits of the partnership shall be divided equally among

the partners and the net losses shall be borne equally among the

partners,” Articles of Partnership of Creative Development Company,

Article IV; “[t]he relationship between [the partners] can be varied

only by agreements in writing signed by [the partners] concurrently

here with or subsequent hereto,” I d

., Article XVII; and “[t]his

agreement is subject to amendment only with the consent of all

partners, and such amendment shall be effective as of such date as

may be determined by them.” Id ., Article XVIII.

Even in the absence of these stipulations in the partnership

agreement, Louisiana Civil Code articles 2803 and 2807 would mandate

equal participation by the partners and prohibit amendment of the

partnership agreement unles s there had been unanimous consent62 See G LENN G. M ORRIS AND W END ELL H

. H OLMES

, 7 L OUISIANA C IVIL L AW

T REATISE

— B USINESS O RGANIZATIONS § 2.08 at 69 (“Partnership law . . .

has

. . . guarded carefully the right of each partner to approve of

the identity of all those with whom he is to associate as a

coowner.”).

52 thereto by the partners. 62 La. Civ. Code art. 2803, comment (a);

La. Civ. Code art. 2807.

The parties introdu ced no evidence that the partners

unanimously agreed, either by amendment of the articles or by

separate agreement, to grant Beychok an interest in the capital,

assets, or profits of the partnership, to change the relationships

of the partners, or to modify the right of each of the four partners

to share equally in the capital, profits, benefits, and assets of

the partnership. In rejecting Central State’s contention that

Beychok had been admitted as a partner in Creative Development, the

majority opinion correctly concludes that “[i]n shor t, as the

unanimous consent of the partners was not evidenced in the 1986

Agreement, then as a matter of law Beychok could no t have been

ad mitted as a partner.” Maj. Op. at 18. For the same reason, as

there was no unanimous consent of the partners to amend the

partnership contract to grant an interest in the capital of the

partnership to Be ychok, or to change the relationships of the

partners, Beychok, as a matter of law, could not have been granted

an in terest in the capital, income, benefits, or assets of the

Creative partnership by Terry Smith. Partnership agreements are63 See G LENN G. M ORRIS AND W ENDELL H. H OLMES

, 7 L OUISIANA C IVI L L A W

T REATISE —B USINESS O RGANIZATIONS § 2.16 at 95-96 (1999)(“The unanimity

requirement is imposed by the Code or by ancillaries with respect

to five decisions apparently considered to be fundamental:

amending the contract of partnership, admitting ne w partners,

terminating partnership,

. . . allowing a partner to withdraw from

the partnership if the partnership has been constituted for a term,

and merging the partnership with another partn ership or business

organization. In a sense, every one of the listed decisions may be

considered simply variations on the same theme: to amend the

contract of partnership

. . . requires the unanimous consent of the

parties to the contract, i.e., the partners. . . . [P]artnership

agreements are considered simple contracts, not subject to change

without the approval of the affected pa r ties.”)(footnotes and

citations omitted).

64 The fallacy of the majority’s position is that Louisiana law

clea rly does not allow a single partner to transfer to a nonpartner an interest in the capital of a partnership that all of the

partners own in common. Each of the provisions of Louisiana

partnership law relied upon by the majority involve the specific

effects upon a single partner’s interest in the partnership caused

by the death or act of that partner with regard to his own

creditors or assi gnees. The other partners’ interests in the

partnership are not affected by those acts or events.

53 contracts which cannot be changed witho ut the consent of the

partners. 63

The majorit y opinion’s conclusion that each partner of a

partnership, without the consent of the other partners, can legally

transfer to a third person an interest in t he capital of the

partnership is based on faulty reasoning, i.e., that if a partner

can unilaterally act so as to affect his own individual interest he

can also act alo ne to affect the other partners’ interests in the

capital of the partnership. 64 As noted supra, however, such

autonomous action by Terry Smith was expressly prohibited by the54

Creative partnershi p agreement. Furthermore, even without the

express prohibitions in the Cr eative articles of partnership, the

law prohibits such solo action by a partner affecting the interests

of the other partners. La. Civ. Code art. 2807. Otherwise, any

partner acting alone and contrary to the wi shes of the other

partners could di lute each partner’s right to receive his or her

original share of the capital, profits, benefits, and assets of the

partnership, and thus single-handedly change the relationships

between the partners and amend the partnership agreement.

The majority opinion mistakenly relies on Louisiana Civil Code

articles 2818 and 2823, governing the causes and effects of

cessation of partnership membership, in its attempt to show that one

partner without conse nt of the others may amend the partnership

agreement to grant an interest in the capital of the partnership to

a third person. When a partner ceases to be a member for one of the

reasons stated in Article 2818, and the partnership c ontinues to

exist, the former partner, his successor, or the seizing creditor

does not acquire an interest in the capital of the partnership as

the majority opinion assumes. Instead, the partnership is obliged

to pay such person an amount equal to the value that the share of

the former partner had at the time the membership ceased. La. Civ.

Code art. 2823 and comment (a); La. Civ. Code art. 2818 and

comments. That amount draws interest from the time that the former

partner’s membership ceased. La. Civ. Code art. 2824. Thus, a55

debtor-creditor relationship between the partnership and the former

partner, his successor, or the seizing creditor is established and

fixed as of the time of the cessation of membership. The Code

clearly does not provide that a former partner’s interest in the

capital may continue af ter the cessation of his membership in the

partnership so as to appreciate or depreciate with the value of the

partnership. The cessation of partnership membership has only the

specific effects provided for by the Code. Thus, the partnership’s

obligation to a former partner, successor, or seizing creditor is

expressly provided by law and only in certain specific instances.

Articles 2823 et seq. do not expres sly or implicitly authorize a

partner to amend the partnership agreement to grant capital, equity,

or profits interests in the partnership to third persons.

Furthermore, although the majority opinion accurately quotes

from Article 2812 and its comment regarding a partner sharing his

or her interest with a third person, the major ity draws the

incorrect inference that a partner can make a third person a direct

owner of an interest in the capital of the partnership by sharing

his interest . That inference is at odds with Article 2812, which

adopts the approach of the Fr ench Civil Code. S ee id

., comment.

Planiol explains French Civil Code art. 1861 as follows:

[T]he law permits each partner to join with him

someone to share with him the risks and ben efits of his

share. There is then formed a little partnership of a

subordinate character between such partner and the third

person with whom he contracts, without the other partners56

being entitled to benefit from, or being liable on such

contract as to which they are strangers (Art. 1861). The

third person thus associated in a subordinate way with

the operations of the partnership is called a “ croupier .”

[fn.16]

[fn.16:] The use of this word in card or dice

games is very old. It is an allusion to the

habit which people who formerly travelled by

horse had, when carriages were ra r e and the

roads bad, of picking up riders on the crupper

to render them a service.

2 P LANIOL

, C IVIL L AW T REATISE N O

. 1975 (La. State Law Institute transl.

1 959). When a partner elects to share his interest in the

partnership with a third person, he cannot thereby establish any

relationship between the third person and the partnership or the

other partners. The latter remain “strangers” to and insulated from

liability due to the fact that the little subordinate partnership

is formed strictly between the partner and the third perso n. In

shor t, the third person is taken on as a “croupier” only by the

partner with whom he contracts and he rides only on that partner’s

“crupper.” Consequently, Article 2812 does not authorize a partner

to create partnership obligations to a third person by sharing his

partnership interest with a third party. S ee M ORRIS AND H OLMES § 2.08

at 68-74. Thus, the majority opinion errs in relying on Article

2812 to support its theory that Terry Smith created and transferred

a capital interest in Creative Development because Ar ticle 281265 See also Black’s Law Dictionary p. 1121 (6 th ed.

1990)(“ Subpartnership

. One formed where one partner in a firm makes

a stranger a partner with him in his share of the profits of that

firm. It is not a partnership but an arrangement in which the

subpartner shares in the profits and losses of a partner.”)

57 contemplates merely the sharing of a partner’s existing share in the

partnership. 65

Thus, it is clear that un der Louisiana law a single partner

cannot amend the partnership contract or grant an interest in the

capital of the partnership to an outsider without the authorization

of the other partners, and that Cen tral States failed to adduce

evidence or pro of that Terry Smith was vested with authority to

transfer any interest in Creative to anyone. Moreover, Central

States failed t o prove that the undefined “interest” which Terry

Smith professed to transfer to Beychok was intended even between

them to be a capital interest in the Creative partnership.

The law is well settled in Louisiana, this ci rcuit, and

generally that a plaintiff who claims that a defendant is legally

s ubjected to a contractual obligation has the burden of proving

every fact essential to establish the obligation and that the

defendant was a party to and bound by the obligation. E.g.

, National

By-P roducts, Inc. v. United States , 405 F.2d 1256, 1264 (Ct.Cl.

1969); B ell v. Ralston Purina Co.

, 257 F.2d 31, 32 (10th Cir.

1958); Carp v. California-Western States Life Ins. Co. , 252 F.2d

337, 339 (5th Cir. 1958); La. Civ. Code arts. 1831 (1987) and 223258

(1870); K ilpatrick v. Kilpatrick

, 660 So.2d 182, 185 (La. App. 2

Cir.), writ denied

, 664 So.2d 444 (La. 1995); Pennington Const. Inc.

v. R A Eagle Corp. , 652 So.2d 637 (La. App. 1 Cir. 1995); B ordlee

v. Pat’s Const. Co. 316 So.2d 16, 17 (La. App. 4 Cir. 1975); Hunter

Co. v. Bossier Levee Dist. of La

., 115 So.2d 226, 227 (La. App. 2d

Cir. 1959).

Consequently, even if Central States had proved that Terry

Smith was authorized by all of the partners of Creative to transfer

an undefined “interest” to Beychok, th e record is devoid of any

evidence that the transfer of a capital interest was authorized or

intended. Because there is no evidence in the record that the

partners of Creative vested any authority in Smith to transfer any

interest in Creative to Beychok, Smith unquestionably did not have

authority to transfer a capital or profits interest to him. There

is no evidence in the record that the undefined interest which Smith

intended to transfer and which Beychok intended to re ceive was a

capital or profits interest in Creative. The written contract

itself does not define the interest intended to be transferred.

According to the testimony of Rome and Beychok, the intent of the

parties was n ot to transfer a capital or profits interest in

Creativ e to Beychok, and the trial court which saw and heard the

witnesses found that the parties indeed did n ot have such an66 The trial court found that the “June 1986 ag reement was

entered into in order to substitute Bechok [sic] as the creditor of

the partnership in lieu of the bakery.”

59 intention. 66 Central States has fallen far short of carrying its

burden to prove that a transfer of an interest in the capital of

Creative was authorized, intended or effected.

III. Issues Which Must Be Decided On Remand

I would affirm the district court’s judgment dismissing Central

States’ claims for the reasons I have state d, and I also

respectfully disagree with the majority’s limitation of the issues

that the district court may consider and decide on remand . Given

the majority decision, it must remand the case. But it should send

the case back for further proceedin gs and decision on a ll of the

issues which the district court did not reach in its first judgment.

For example, Central State s must prove that Creative was a “trade

or business” in order to hold it liable under a “brother-sister” or

“common contro l” theory. S ee 29 U.S.C. § 1301(b)(1). Cf

.

Commissioner of Internal Revenue v. Groetzinger

, 480 U.S. 23 (1987);

Central States v. Personnel, In c. , 974 F.2d 789 (7 t h Cir. 1992);

Susan C. Glen, Central States v. Personnel, Inc.: When Real Estate

Investments Create Personal Liability Under the Multiemployer

Pension Plan Amendments Act of 1980 , 78 Minn.L.Rev. 501 (1964).

Therefore, the district court should be directed on remand to hear60

and decide that issue, as well as any other essential element of the

case not reached previously, unless of course the parties have

already stipulated or admitted such issues.

IV. Conclusion

The majority opinion is at od ds with both federal law and

Louisiana law, as well as the concept an d purposes of partnership

as a juridical e ntity. The majority decides, in effect, that any

partner in a partnership has the autonomous legal power to transfer

an interest in the capital of a partnership to third persons, which

in effect allows any party to the partnership contract to

unilaterally amend the contract to affect the interests, rights, and

obligations of the other non-consenting partners, change the

partners’ relationships, and dilute each partner’s interest in the

capital, profits, benefits, and distribution of a ssets of the

partnership. All of these major decisions and changes require the

unan imous consent of the partners. La. Civ. Code arts. 2803 and

2807. If this were not the law, each partner would have the

autonomous power to create unlimited additional capital and profits

interests; each partner would be tempted or forced in self-defense

to feather his or her own nest by granting additional interests to

family or cronies; and the entire law of partners hips would fall

into disar r ay and probably become defunct. As if this were not

enough, the majority’s reading of the Louisiana partnership law, as61

this case demonstrates, would empower any partner in any partnership

to subject all other partners to massive, unforeseeable personal

liability, without their consent.

The Central States plaintiffs failed to demonstrate a legal

basis under federal law or Louisiana partnership law for Terry

Smith’s authority to transfer ownership of either a “profits

interest” or “capital interest” in the Creative partnership to

Sheldon Beychok. Lacking proof that Smith legally effected the

grant or transfer of an interest in the capital or profit s of the

Creative partnership to Beychok, Central States has also failed to

prove that Creative and Wolf Baking were trades or businesses under

the “ common control” of Beychok. Because the Central States

plaintiffs failed to prove either of these elements of their case,

t heir claims against Creative and its partners individually for

payment of Wolf Baking’s $1.35 million withdrawal liability were

properly dismissed by the district court.