Commissioner of the Department of Disabilities, Aging, and Independent Living v. Homestead at Pillsbury ( 2019 )

Commissioner of the Department of Disabilities, Aging, and Independent Living v. Homestead at Pillsbury, 618-11-18 Wncv (Teachout, J., July
9, 2019)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 618-11-18 Wncv
Commissioner of the Department of Disabilities,
Aging, and Independent Living
Plaintiff
v.
Homestead at Pillsbury et al.
Defendants
ENTRY
Mr. White’s Motion to Intervene (MPR 31)
Mr. Andrew White has filed a Rule 24(a)(2) motion to intervene in this case. He claims
an “indirect” ownership interest in the facilities under receivership or the various limited liability
companies with ownership interests in them.
“Upon timely application” under Rule 24(a)(2), intervention is warranted “when the
applicant claims an interest relating to the property or transaction which is the subject of the
action and the applicant is so situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is
adequately represented by existing parties.”
Mr. White represents that he is the “indirect owner of a greater than 90% interest in East
Lake Capital Management, LLC (ELCM),” which, in turn, “indirectly” owns 100% of the
defendant “Management” LLCs and has “indirect” minority interests in the remaining defendant
LLCs. By “indirect,” Mr. White purports to refer to “several layers of LLCs” without further
explanation. See Andrew White’s Reply in Support of Motion to Intervene 2 (filed June 26,
2019). Mr. White represents that the Delaware Court of Chancery placed ELCM under
receivership and has appointed a receiver for ELCM who is hostile to his “interests.” He claims
to need to intervene in this case to ensure that these interests are adequately represented due to
the hostility of the Delaware receiver.
Mr. White’s motion is denied for several reasons. Most importantly, the court is unable
to evaluate Mr. White’s interests for Rule 24 purposes. As he describes them, his interests are
his LLC ownership interests. All those interests he describes are “indirect,” by which he means
that there are “several layers of LLCs” between him personally and those entities he claims to
indirectly own. Nowhere in the record of this case is there any comprehensive and cogent
explanation of all relevant ownership interests and, perhaps more important, the contractual
interests that define the relationships among the various interested business entities. Mr. White
makes some generalized allegations about his ownership interests and seeks relief based on those
generalizations. He does not offer to explain those ownership interests with any meaningful
specificity and does not at all address the contractual relationships among the business entities at
all. This is insufficient to support intervention as of right.
Second, Mr. White’s intervention argument is premised on his claim that he and the
Delaware receiver have a hostile relationship. To the extent that Mr. White seeks a forum to do
battle with the Delaware receiver, he should seek it in the court that appointed the Delaware
receiver. The receiver in this case is not and has never been the Delaware receiver. Moreover,
the receiver here is an officer of the court, not an adverse party, and is presumed to adequately
represent the interests of absentees. See 7C Wright & Miller et al., Federal Practice &
Procedure: Civil 3d § 1909. While Mr. White claims that his interests are adverse to those of the
Delaware receiver, he has offered no showing, much less a compelling one, that his interests are
not adequately represented by the receiver in this case.
Finally, the motion is untimely. The court appointed a temporary receiver in this case in
November 2018 and decided to appoint a permanent receiver in January 2019. The Delaware
court placed ELCM under receivership in February 2019. Mr. White does not purport to have
relevant ownership interests outside the scope of these receiverships. He thus lost all relevant
control to the various receivers long ago. Mr. White no doubt has been aware of the litigation,
he vigorously and unsuccessfully opposed the institution of a receivership in this case, and there
is no material showing that anything impeded his ability to seek intervention before now. In the
circumstances of this case, Mr. White simply waited too long to seek intervention.
Mr. White’s Motion to Intervene is denied.
Dated at Montpelier, Vermont this ____ day of July 2019.
_____________________________
Mary Miles Teachout
Superior Judge
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