This is the second appearance of this case before this Court. In IH Riverdale 1 ,1 we held, inter alia, that the trial court correctly denied plaintiffs’ “IH” motion for summary judgment on its claim that it was entitled to a five percent quarterly distribution of profits under the parties’ operating agreement, given that the defendants “MCP” had amended the agreement to eliminate the fee.2 After the remittitur was entered, MCP, whose motions for summary judgment and for reconsideration of summary judgment on that issue had been denied before the appeal, moved for the entry of an order on the motion for reconsideration. IH filed a cross-motion for partial summary judgment. The trial court granted MCP’s motion and denied IH’s motion. IH appeals, asserting, in four enumerations of error, that at a minimum, jury issues exist concerning the five percent cash distribution and the validity of the amendment; that the trial court’s construction of the contract renders certain provisions a nullity and ignores its plain language; and that if the contract is ambiguous, extrinsic evidence proves that the parties intended for MCP to pay IH the cash distribution and for the consent of both parties to be required for the major decisions contained in the amendment. We affirm. We recite below so much of IH Riverdale 1 as is relevant to this appeal. The . . . agreement provides that quarterly distributions of “distributable cash” shall be made on the following basis: 5 percent to IH as its “guaranty ‘profits’ distribution,” 5.32 percent to IH, and 89.68 percent to McChesney: Any Distributable Cash from any event other than a Capital Event and after payment of any accrued and unpaid one percent guaranty fee pursuant to Section 5.11 f shall be distributed to the Members, on a quarterly basis, five percent 5 to IH as its guaranty “profits” distribution, five and thirty-two hundredths percent 5.32 to IH and eighty-nine and sixty-eight hundredths percent 89.68 to McChesney. Such distributions, excluding the guaranty “profits” distribution received by IH, shall be applied to reduce the accrued but previously unpaid Preferred Return. . . . But amendments to the agreement were authorized if they were “in writing and signed by the Members holding at least a Majority Interest in the Company.” And a “Majority Interest in the Company” was defined in the agreement as “Ownership Interests of Members which, taken together, shall exceed eighty percent of the aggregate of all the Ownership Interest of the Members.” MCP owned 94.68 percent of the Ownership Interests in the venture. And, on July 11, 2003, MCP voted to amend the agreement between the parties. The amendment deleted all references to the five percent fee payable to IH. IH has failed to explain why it should be entitled to the five percent fee given that the agreement was amended to eliminate the fee. For that reason alone, the trial court did not err by denying IH’s motion for summary judgment on this issue.3 The trial court’s summary judgment order that was the subject of IH Riverdale 1 was issued on July 22, 2005. MCP filed a motion for reconsideration on August 8, 2005, seeking a declaration that the amendment to the operating agreement was valid. In an order filed on August 17, 2005, the court held that MCP had the right to amend the agreement but that issues of fact remained as to whether the percentage interest could be adjusted without unanimous consent of the “members,” or parties to the agreement. In the interim, IH filed a notice of appeal, so the trial court declared its order of August 17 void. Following our opinion in IH Riverdale 1 affirming the denial of summary judgment to IH on the profits’ distribution issue, MCP renewed its motion for reconsideration. IH moved for partial summary judgment, arguing once again that MCP’s amendment to eliminate the five percent distribution was void as a matter of law. After oral argument, during which the trial court interpreted our ruling to mean that MCP had the right to amend the agreement to eliminate the distribution, the court entered an order granting MCP’s motion and denying IH’s motion.
On appeal, IH contends that the trial court erroneously interpreted IH Riverdale 1 to mean that MCP was entitled to summary judgment on this issue. IH asserts that we affirmed the denial of its motion for summary judgment based on a perceived lack of evidence; that IH supplied additional evidence in the form of the affidavit of Geoffrey Nolan, who is IH’s sole member; and that the trial court ignored the affidavit in denying its motion and granting MCP’s motion. MCP argues that the “law of the case” rule controls this appeal.
