Attorney-at-Law

OUT ON PAROL

In Uncategorized on 12/06/2019 at 15:46

The title is neither misspelling nor misprint. The Coalholders are back, but they’re out on parol. Here’s Coal Property Holdings, LLC, Coal Land Manager, LLC, Tax Matters Partner, Docket No. 27778-16, filed 12/6/19.

All y’all will recall that Judge Albert G (“Scholar Al”) Lauber stitched up the Coalholders back in October, but if y’all do not, please to see my blogpost “Diamonds Are Forever,” 10/28/19.

Now the Coalholders want to be reconsidered. They want to call “…two witnesses to testify concerning the purpose or proper interpretation of the alternative allocation clause.” Order, at p. 2. This “alternate allocation clause” was the reset if the conservation easement was judicially extinguished. It also had the famous “any prior claims” clause.

Judge Scholar Al ain’t buying.

“First, neither in its response to the motion for summary judgment nor in its sur-reply did petitioner express a desire to call these two witnesses to testify concerning the purpose or proper interpretation of the alternative allocation clause. Nor did petitioner contend that there existed a genuine dispute of material fact to which the testimony of these witnesses would be relevant. Rather, petitioner contended that the alternative allocation clause was not a condition subsequent saving clause at all, but instead constituted a permissible ‘interpretative provision.’” Order, at p. 2.

There is nothing to interpret. The “alternative allocation clause” was the same kind of savings clause that countermanded the earlier provision giving the 501(c)(3) all the boodle. That’s what torpedoed the Palmolives, among others. For the Palmolives’ story, see my blogpost “No Joy Forever – Because Golsen,” 10/11/17.

Anyway, TN law (the property is in TN) says if no ambiguity, use plain language. “The Supreme Court of Tennessee has ruled that, “[i]f the contractual language is initially deemed unambiguous, its ‘plain meaning’ should be used, without recourse to matters extraneous to the text of the agreement.’ Individual Healthcare Specialist, Inc. v. BlueCross BlueShield of Tennessee, Inc., 566 S.W. 3d 671, 691 (Tenn. 2018). Petitioner contends that its proposed testimony would be ‘strictly a function of why the language was drafted as it was.’ To the extent such testimony would be offered to contradict the plain language of the easement deed, it would be prohibited by the parol evidence rule. See id. at 696-697. To the extent the testimony would be offered for another purpose, it is unclear what relevance it would have or why it should cause us to reconsider our Opinion.” Order, at p. 3.

Oral testimony cannot be used to vary a written instrument, unless clearly ambiguous or fraudulent. This document is neither. If you’re now unhappy with what you wrote, you should have read it more closely.

But the Coalholders have another argument.

“…petitioner contends that, as a matter of public policy, the alternative allocation clause should be given force because it would maximize the amount of proceeds received by the charitable donee in the event of a future judicial extinguishment of the use restriction. But this would likely be the situation with many saving clauses in charitable contribution cases, as was true in Palmolive Bldg. Iny’rs, LLC v. Commissioner, 149 T.C. 380 (2017). There, the easement deed specified an allocation of proceeds that the Court found impermissible under the governing regulations. Id. at 398. The easement deed contained a saving clause stating that if any provision conflicted with the regulations, there would be a deemed amendment of the deed to make it compliant with the regulations. Id. at 404. The Court declined to enforce the saving clause, even though doing so would have yielded an interpretation theoretically benefitting the charitable donee. We take the same approach here.” Order, at p. 3.

Put more forcefully, you Coalholders aren’t getting a $155.5 million rip-off of the American taxpayers (of whom I am one) for strip-mined, garbage property the promoters of this scam bought for bortscht (pardon the abstruse technical term) and got a $32.5 million paycheck for selling to the putative ripper-off, by claiming a 501(c)(3) might get ten cents more if a court ever blows this thing off maybe if ever.

Got me?

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