Northeast Comm WI v. CenturyTel Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2891
NORTHEAST COMMUNICATIONS OF WISCONSIN, INC.,
Plaintiff-Appellant,
v.
CENTURYTEL, INC., and ALLTEL CORP.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-690—William C. Griesbach, Judge.
____________
ARGUED SEPTEMBER 13, 2007—DECIDED FEBRUARY 19, 2008
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. This litigation under the
diversity jurisdiction, which is governed by Wisconsin
law, presents the question whether a corporate merger
involving the parent of one member of a limited partner-
ship activated a right of first refusal. The district judge
gave a negative answer and entered judgment for the
member, which wants to retain its interest. 2006 U.S. Dist.
LEXIS 38562 (E.D. Wis. June 8, 2006).
The partnership is Wisconsin RSA #10 L.P. (the Partner-
ship), formed in 1989 as a joint venture among five firms
2 No. 06-2891
that wanted to enter Wisconsin’s nascent cellular com-
munications market. The Partnership offers service in
Door, Kewaunee, and Manitowoc Counties. The five
original members were Casco Telephone, Universal
Cellular, Northeast Communications, Lakefield Com-
munications, and Wayside Telecom. (KDM Cell, Inc.,
owned by four of these five, serves as managing partner.)
Three clauses of the agreement create rights of first
refusal. Section 11.1 says that, before any member may
sell its stake, any of the other members can step in to
acquire that interest. Sections 11.3 and 11.5 qualify this
rule by allowing subsets of the members to transfer
interests among themselves: §11.3 says that Northeast
may sell to Wayside, or the reverse, without conferring
a right of first refusal on the other three members, and
§11.5 deals with transactions among Casco, Universal,
and Lakefield. Here is the text of §11.5:
Any provision of Section 11.1 to the contrary
notwithstanding, it is understood and agreed that
CASCO TELEPHONE COMPANY, UNIVERSAL
CELLULAR . . . and LAKEFIELD COMMUNICA-
TIONS, INC. may transfer their respective part-
nership interest to one of their respective affiliates
at any time without consent or restriction from
any other partner. In the event of any sale, trans-
fer, or other disposition of ownership or control by
CASCO TELEPHONE COMPANY, UNIVERSAL
CELLULAR . . . or LAKEFIELD COMMUNICA-
TIONS, INC. of their respective Partnership
Interest, the non-selling entity, or affiliate of the
non-selling entity, shall have, to the exclusion of
all other partners, exclusive right for a period of
thirty (30) days from the date of receiving notice
from the selling partner of its interest to sell part
or all Partnership Interest, the right to purchase
the interest of the selling partner or a portion of
No. 06-2891 3
said interest. The price that such partner shall pay
for the selling partner’s interest shall be equal to
the price offered by any third party desiring to
purchase the interest of the selling partner or
100% of the fair market value of such interest,
whichever is the lesser of the two figures. If the
buying or selling partners cannot agree as to a fair
market value for the Partnership Interest being
sold, the fair market value shall be determined to
be equal to the average value arrived at by three
(3) independent appraisers, one chosen by the
selling partner, one chosen by the purchasing
partner or partners, and the third chosen by the
other two appraisers selected by the partners. In
determining the fair market value of the Partner-
ship Interest being sold, the appraisers shall make
such determination independent of and not consid-
ering the third party offer which may have necessi-
tated the appraisals. All appraisers shall be chosen
within thirty (30) days of the date of the event
necessitating an appraisal and such said apprais-
ers are to have their appraisal presented within
thirty (30) days of their selection as appraisers.
Any interest not so purchased by CASCO TELE-
PHONE COMPANY, UNIVERSAL CELLULAR . . .
or LAKEFIELD COMMUNICATIONS, INC., or
their respective affiliates, from the other or others
at the termination of the 30-day period, shall be
subject to purchase by any of the other partners.
It is the intention of the parties that this para-
graph shall apply only to sales by CASCO TELE-
PHONE COMPANY, UNIVERSAL CELLULAR . . .
or LAKEFIELD COMMUNICATIONS, INC., or
their affiliates to each other, or their affiliates, so
as to give each of these entities the first right
and option to purchase additional interests in
the Partnership.
4 No. 06-2891
Universal Cellular has many subsidiaries; the one par-
ticipating in this partnership was “Universal Cellular
for Wisconsin RSA #10, Inc.”, but for simplicity we have
shortened the name. Universal Cellular also has a parent,
CenturyTel Wireless, Inc., and the acquisition of this
parent in 2002 by Alltel Corp. is what led to the current
dispute. A reader of §11.5 might be surprised to learn that
the acquisition of a parent corporation could matter to
rights of first refusal such as §11.1, §11.3, or §11.5. But
a state court has held that transfer of control at the level
of a corporate parent can activate §11.3, see Wayside
Cellular, Inc. v. Northeast Communications of Wisconsin,
Inc., 192 Wis. 2d 765, 532 N.W.2d 470 (Wis. App. 1995),
and the parties have assumed that this conclusion ap-
plies to §11.5 as well—though they agree that it does not
apply to §11.1, a limitation that will become significant
in a moment.
When Alltel (itself since acquired by TPG, Inc.) acquired
CenturyTel, Northeast tried to scoop up Universal Cellu-
lar’s ownership interest in the Partnership. Universal
protested that §11.1 does not confer that option on North-
east, because it applies only when a member proposes
to sell its interest, which Universal had not done. North-
east agreed with this reading of §11.1. Still, Northeast
insisted, the acquisition of Universal Cellular’s parent
activated §11.5. Casco is no longer a member; its interest
was divided among Universal and Lakefield some years
back. As Northeast sees things, when Lakefield did not
buy out Universal’s interest, the penultimate sentence
of §11.5 came into play: “Any interest not so purchased
[by Lakefield within 30 days] . . . shall be subject to
purchase by any of the other partners.”
Universal thinks that making an interest “subject to
purchase” just plops it back into the domain of §11.1,
which, everyone agrees, is irrelevant when a member is
acquired by merger or tender offer. Universal maintains
No. 06-2891 5
that using the “subject to purchase” language to give
Northeast a right of first refusal would expand the lim-
ited scope of §11.1 and disregard the difference, which
Wisconsin’s Court of Appeals perceived, between the scope
of §11.1 and the other two first-refusal clauses. Universal
views §11.5 as curtailing rather than expanding the
scope of §11.1. Northeast, for its part, contends that the
“subject to purchase” language gives it an option on top of
its rights under §11.1.
The district judge relied principally on the last sen-
tence of §11.5: “It is the intention of the parties that this
paragraph shall apply only to sales by CASCO TELE-
PHONE COMPANY, UNIVERSAL CELLULAR . . . or
LAKEFIELD COMMUNICATIONS, INC., or their affili-
ates to each other, or their affiliates, so as to give each of
these entities the first right and option to purchase
additional interests in the Partnership.” (Emphasis added.)
Universal did not sell its membership to Lakefield, nor
was CenturyTel acquired by Lakefield. Because none of the
three members listed in §11.5 transferred any asset to any
other member specified in §11.5, this paragraph drops out
(the district judge held) and leaves only §11.1—which, to
repeat, everyone agrees does not afford Northeast a right
of first refusal.
Northeast maintains that the district court’s reading
frustrates a major purpose of clauses such as §11.5: to give
the original partners a right to keep strangers out of
their business ventures. See Bruns v. Rennebohm Drug
Stores, Inc., 151 Wis. 2d 88, 442 N.W.2d 591 (Wis. App.
1989). Yet how does a change in its ownership structure
make Universal Cellular a “stranger” to the Partnership?
True, a new (indirect) owner may give Universal new
marching orders, but so may a new CEO of a partner that
has no corporate parent, and a change of CEO (or a new
business plan adopted by an old CEO) does not give other
partners a buyout right. Northeast’s understanding of the
6 No. 06-2891
reason why clauses such as §11.5 are included in joint-
venture agreements does more to call into question the
state court’s decision in Wayside Cellular, which ex-
tends §11.3 (and implicitly §11.5) to transactions in-
volving corporate parents, than to undermine the district
court’s decision in this case. But no matter. A contract’s
express language beats imputed purposes under Wiscon-
sin’s law. See Gorton v. Hostak, Henzl & Bichler, S.C., 217
Wis. 2d 493, 506, 577 N.W.2d 617, 622–23 (1998). If
Universal were to offer its interest to a stranger, then
§11.1 would grant Northeast a right of first refusal; that
saves the district court’s reading from any risk that it
has sabotaged the main function of a first-refusal clause.
At oral argument counsel for Northeast asserted that
parol evidence supports its reading of §11.5. Northeast’s
brief, however, makes no such argument. What it says
instead is that §11.5 is ambiguous and therefore must be
construed by a jury rather than a judge. That is not,
however, a rule of federal law (for it is the forum’s law
that controls the allocation of tasks between judge and
jury, see Mayer v. Gary Partners & Co., 29 F.3d 330 (7th
Cir. 1994)). Ambiguity in a contract permits resort to
parol evidence—whether usages of trade or exchanges
between the contracting parties. See, e.g., Utica Mutual
Insurance Co. v. Vigo Coal Co., 383 F.3d 707 (7th Cir.
2004) (Indiana law). When only the contract’s language
is in evidence, however, a court renders its own decision
whether or not the document is ambiguous. See, e.g.,
Continental Casualty Co. v. Northwestern National Insur-
ance Co., 427 F.3d 1038 (7th Cir. 2005); Compagnie
Financière de CIC et de l’Union Européenne v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 232 F.3d 153, 158 (2d
Cir. 2000); Thornton v. Bean Contracting Co., 592 F.2d
1287, 1290 (5th Cir. 1975). So although we do not think the
last sentence of §11.5 hard to parse, if it were the
No. 06-2891 7
court still would be required to select the most plausible
meaning.
The reading that the district judge has given, which
treats §11.5 as a qualification rather than an extension
of §11.1, has much to commend it. For example, §11.5
bears the caption: “Right of Limitation of Transfer and
Right of First Refusal among Casco [ ], Universal Cellular
[ ] and Lakefield [ ].” This tells us that §11.1 is about to be
confined rather than expanded. What’s more, the district
judge’s understanding of §11.5 curtails the members’
ability to engage in strategic behavior. Usually a right
of first refusal comes into play only after the price of an
asset has been negotiated in an arms’-length transaction.
If Northeast agreed to sell its own stake to AT&T, for
example, another member would be entitled to buy that
interest at a price than cannot exceed what AT&T had
agreed to pay. But when a corporate parent is acquired, no
price is attached to a membership interest in Wisconsin
RSA #10 L.P. What price then would the interest fetch
under a right of first refusal?
There is no liquid market in these interests, and the
absence of a market price would necessitate an ap-
praisal under the cumbersome process outlined in §11.5.
Appraisals may miss the mark by a substantial margin.
Section 11.5, as Northeast reads it, allows any member
of the partnership to demand an appraisal as a specula-
tive venture: if the appraisal comes in below the member’s
own estimate of the interest’s value, then the interest
will be snapped up; otherwise the original transaction
will go through. Most businesses prefer to avoid situa-
tions in which their assets can be acquired for less
than market value. Indeed, it is hard to understand
CenturyTel’s defense of this suit on any other ground. If
it thought that the appraisal would give it full value, it
would be indifferent between keeping the stake and selling
to Northeast. The district judge’s reading of §11.5 reduces
8 No. 06-2891
the opportunity for valuation errors. That plus the
caption and the normal understanding of the phrase “to
each other” suffice to support the judgment.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-08