RNR is a Florida limited partnership formed * * * to purchase vacant land in Destin, Florida,

Question:

RNR is a Florida limited partnership formed * * * to purchase vacant land in Destin, Florida, and to construct a house on the land for resale. Bernard Roeger was RNR’s general partner and Heinz Rapp, Claus North, and S.E. Waltz, Inc., were limited partners. The agreement of limited partnership provides for various restrictions on the authority of the general partner. Paragraph 4.1 of the agreement required the general partner to prepare a budget covering the cost of acquisition and construction of the project (defined as the ‘‘Approved Budget’’). * * *

   Paragraph 4.3 restricted the general partner’s ability to borrow, spend partnership funds and encumber partnership assets, if not specifically provided for in the Approved Budget. Finally, with respect to the development of the partnership project, paragraph 2.2(b) provided:

The General Partner shall not incur debts, liabilities or obligations of the Partnership which will cause any line item in the Approved Budget to be exceeded by more than ten percent (10%) or which will cause the aggregate Approved Budget to be exceed by more than five percent (5%) unless the General Partner shall receive the prior written consent of the Limited Partner.

   In June 1998, RNR, through its general partner, entered into a construction loan agreement, note and mortgage in the principal amount of $990,000. From June 25, 1998 through Mar. 13, 2000, the bank disbursed the aggregate sum of $952,699, by transfers into RNR’s bank account. All draws were approved by an architect, who certified that the work had progressed as indicated and that the quality of the work was in accordance with the construction contract. No representative of RNR objected to any draw of funds or asserted that the amounts disbursed were not associated with the construction of the house.

   RNR defaulted under the terms of the note and mortgage by failing to make payments due in July 2000 and all monthly payments due thereafter. The Bank filed a complaint seeking foreclosure. RNR filed an answer and affirmative defenses. In its first affirmative defense, RNR alleged that the Bank had failed to review the limitations on the general partner’s authority in RNR’s limited partnership agreement. RNR asserted that the Bank had negligently failed to investigate and to realize that the general partner had no authority to execute notes, a mortgage and a construction loan agreement and was estopped from foreclosing. The Bank filed a motion for summary judgment with supporting affidavits attesting to the amounts due and owing and the amount of disbursements under the loan.

   In opposition to the summary judgment motion, RNR filed the affidavit of Stephen E. Waltz, * * * alleg[ing] that the limited partners understood and orally agreed that the general partner would seek financing in the approximate amount of $650,000.

***

   RNR asserts that a copy of the limited partnership agreement was maintained at its offices. Nevertheless, the record contains no copy of an Approved Budget of the partnership or any evidence that would show that a copy of RNR’s partnership agreement or any partnership budget was given to the Bank or that any notice of the general partner’s restricted authority was provided to the Bank.

   * * * [T]he trial court entered a summary final judgment of foreclosure in favor of the Bank. The foreclosure sale has been stayed pending the outcome of this appeal.

* * *

   Although the agency concept of apparent authority was applied to partnerships under the common law, [citation], in Florida the extent to which the partnership is bound by the acts of a partner acting within the apparent authority is now governed by statute. Section 301(1), [citation], a part of the Florida Revised Uniform Partnership Act (FRUPA), provides:

Each partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary scope of partnership business or business of the kind carried on by the partnership, in the geographic area in which the partnership operates, binds the partnership unless the partner had no authority to act for the partnership in the particular manner and the person with whom the partner was dealing knew or had received notification that the partner lacked authority.

   [Court’s footnote: RNR mistakenly argues that section 301(1) has no application to a limited partnership because that section is part of the Florida Revised Uniform Partnership Act, not the Florida Revised Uniform Limited Partnership Act. Section 620.186 (comparable to Revised Uniform Limited Partnership Act Section 1105), however, provides, as follows: In any case not provided for in this act, the provisions of the Uniform Partnership Act or the Revised Uniform Partnership Act of 1995, as applicable, and the rules of law and equity shall govern.]

   Thus, even if a general partner’s actual authority is restricted by the terms of the partnership agreement, the general partner possesses the apparent authority to bind the partnership in the ordinary course of partnership business or in the business of the kind carried on by the partnership, unless the third party ‘‘knew or had received a notification that the partner lacked authority.’’ [Citation.] ‘‘Knowledge’’ and ‘‘notice’’ under FRUPA are defined in section 102. That section provides that ‘‘[a] person knows a fact if the person has actual knowledge of the fact.’’ [Citation.] Further, a third party has notice of a fact if that party ‘‘(a) knows of the fact; (b) has received notification of the fact; or (c) has reason to know the fact exists from all other facts known to the person at the time in question.’’ [FRUPA] §102(2). Finally, under [FRUPA] section 303 a partnership may file a statement of partnership authority setting forth any restrictions in a general partner’s authority.

*** 

   ‘‘Absent actual knowledge, third parties have no duty to inspect the partnership agreement or inquire otherwise to ascertain the extent of a partner’s actual authority in the ordinary course of business * * * even if they have some reason to question it.’’ [Citation.] The apparent authority provisions of section 301(1), reflect a policy by the drafters that ‘‘the risk of loss from partner misconduct more appropriately belongs on the partnership than on third parties who do not knowingly participate in or take advantage of the misconduct.’’ * * * [Citation.]

   Under section 301(1), the determination of whether a partner is acting with authority to bind the partnership involves a two-step analysis. The first step is to determine whether the partner purporting to bind the partnership apparently is carrying on the partnership business in the usual way or a business of the kind carried on by the partnership. An affirmative answer on this step ends the inquiry, unless it is shown that the person with whom the partner is dealing actually knew or had received a notification that the partner lacked authority. [Citation.] Here, it is undisputed that, in entering into the loan, the general partner was carrying on the business of RNR in the usual way. The dispositive question in this appeal is whether there are issues of material fact as to whether the Bank had actual knowledge or notice of restrictions on the general partner’s authority.

   RNR argues that, as a result of the restrictions on the general partner’s authority in the partnership agreement, the Bank had constructive knowledge of the restrictions and was obligated to inquire as to the general partner’s specific authority to bind RNR in the construction loan. We cannot agree. Under section 301, the Bank could rely on the general partner’s apparent authority, unless it had actual knowledge or notice of restrictions on that authority. While the RNR partners may have agreed upon restrictions that would limit the general partner to borrowing no more than $650,000 on behalf of the partnership, RNR does not contend and nothing before us would show that the Bank had actual knowledge or notice of any restrictions on the general partner’s authority. Here, the partnership could have protected itself by filing a statement pursuant to section 303 or by providing notice to the Bank of the specific restrictions on the authority of the general partner.

*** 

   Because there is no disputed issue of fact concerning whether the Bank had actual knowledge or notice of restrictions on the general partner’s authority to borrow, summary judgment was proper.

   Affirmed 

Fantastic news! We've Found the answer you've been seeking!

Step by Step Answer:

Related Book For  book-img-for-question

Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

Question Posted: