Butler v. Pembroke
| Decision Date | 10 October 1990 |
| Docket Number | No. 07-CA-59180,07-CA-59180 |
| Parties | Marcus L. BUTLER v. John H. PEMBROKE, d/b/a Radio Station WOAD and Blackjac Radio, Inc., a Corporation. |
| Court | Mississippi Supreme Court |
Reeves Jones, Jackson, for appellant.
Michael J. Malouf, Malouf & Malouf, Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and BLASS, JJ.
I.
Courts have but a limited ability to right wrongs, to adjudge justly, notwithstanding much popular lore to the contrary. We may act only upon claims made and upon evidence presented, and at a considerable cost to the parties and the public. Lawsuits are and should be but a last resort. People have few disputes they could not settle among themselves more sensibly and more acceptably. Today's appellant in justice ought have full relief, but the law allows him but its modest approximation, as he cannot "prove" he is entitled to any more.
II.
In the early 1980's, John H. Pembroke acquired radio station WOAD in Jackson, Mississippi, and, as well, Blackjac Radio, Inc., a Mississippi corporation, all of whose stock Pembroke owns. Earl O. Anderson served as business manager for WOAD. Marcus L. Butler was an employee and announcer for the station. The Reverend Mr. Butler is also pastor at the Amazing Church of God in Christ, Pentecostal Church, in Jackson.
WOAD was not doing well, and at Anderson's importunings Butler invested $12,000.00 in the radio station. Butler had a written agreement with WOAD that in return for his investment he would receive twenty (20%) percent of the net profits from its "inside and outside activities" from July 6, 1984, through February 14, 1985.
Time went by and WOAD paid Butler nothing on his investment. Butler took to the courts, proceeding ultimately on two fronts. He first sued Anderson and Pembroke in the present action, then settled separately with Anderson for a $12,000.00 promissory note, which Anderson neglected to honor. Butler then brought separate suit on the note and obtained a judgment against Anderson, who had originally bilked him of the $12,000.00, for the full principal amount of his investment plus interest and attorney fees. Anderson paid $600.00, took bankruptcy, and that was the end of that.
Butler then reinvigorated his original action, adding Pembroke's corporation, Blackjac Radio, Inc., as a Defendant and demanding that Pembroke and Blackjac cough up the agreed twenty (20%) percent of net profits. On June 22, 1987, the Chancery Court of the First Judicial District of Hinds County, Mississippi, honored Butler's claim in principle, holding he should have the agreed net profits. Acting under Rule 53, Miss.R.Civ.P., the Court appointed Thomas M. Tann, Jr., C.P.A., as Special Master and directed that he perform an audit of the books and records of radio station WOAD "to determine the net profit from the operations of the station from July 6, 1984, through February 14, 1985." In due course Special Master Tann reported that WOAD's books and records were a shambles, citing some sixteen categories of records that were needed for completion of the audit but could not be found. In the end, Tann reported that he was unable to perform his assigned task.
Eleven days later Butler moved the Court to withdraw its order that he recover the twenty (20%) percent net profits, and, in lieu thereof, give him back the $12,000.00 he invested in WOAD, plus interest, punitive damages and attorney fees. The Court called the parties back for a new hearing and rejected Butler's alternative suggestion on grounds that, notwithstanding the lack of accurate records, the evidence was fairly clear that WOAD was not making much money. Addressing Butler's counsel, the Court remarked "Your own man's investment was because it wasn't making money."
The parties deposed Special Master Tann and produced the deposition into evidence. Attached to that deposition is a not wholly explained statement entitled Income Summary, which reflects a net profit for the period in issue of $4,258.00. No one suggests that this figure could be verified by a credible audit performed according to generally accepted accounting principles. The Chancery Court accepted that figure "as the best that we can do with the evidence that is before the Court." The Court then computed Butler's twenty (20%) percent, deducted the $600.00 he had received from Anderson, and entered judgment in Butler's favor in the amount of $251.60 plus interest. The Court assessed Pembroke and Blackjac Radio, Inc. with all costs, including the costs of the Special Master.
Butler now appeals to this Court.
III.
The Reverend Mr. Butler is convinced WOAD was making a ton of money and will no doubt go to his grave so believing. The thrust of his appeal is an attack on the substantiality of the evidence supporting the Chancery Court's acceptance of the most modest $4,258.00 net profit figure. What Butler fundamentally ignores is the quantum of evidence supporting the Court's ultimate finding that WOAD simply was not making any money to amount to anything during the operative period. This finding of fact is supported by substantial evidence and, on appellate review, must be accepted. See, e.g., Robinson v. Robinson, 554 So.2d 300, 304 (Miss.1989); Williams v. Evans, 547 So.2d 54, 58 (Miss.1989); Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987).
IV.
Butler tenders three issues, each of which is elusive if not enigmatic. He complains first that the Chancery Court erred when it failed to respect the report of Special Master Tann, to which no timely exception was taken. See Rule 53(g)(2), Miss.R.Civ.P. If we understand him correctly, Butler is arguing that the effect of Special Master Tann's report was that the net profits of WOAD could not be determined and that the Court was in error in proceeding thereafter to hear the matter further and attempt to find net profits. Butler sees this as the grounding for his reversal of field and pursuit of reimbursement of his $12,000.00 "to prevent unjust enrichment."
To begin with, it is not at all clear that a Special Master's report that his assignment cannot be...
To continue reading
Request your trial
-
MISSISSIPPI GAMING COM'N v. Freeman
...to suggest untrustworthiness other than Freeman's allegation that Garner moved a reel on the slot machine. Regardless, in Butler v. Pembroke, 568 So.2d 296 (Miss.1990), this Court said that the admission of daily receipt logs and a bookkeeper's summary under MRE 803(6), which had not been t......
-
Williams v. Rembert
...of law. This Court held that M.R.C.P. 53(g)(2) does not bar a chancellor from reexamining conclusions of law as needed. Butler v. Pembroke, 568 So.2d 296, 298 (Miss.1990) (holding "only 'the Master's findings of fact [must be accepted] unless manifestly wrong.' "); see also Arlen B. Coyle, ......
-
Odom v. Roberts
...Ann. Sec. 11-1-55 (Supp.1990). The Odoms had the burden of proving their injuries, damages, and loss of income. Butler v. Pembroke, 568 So.2d 296, 298 (Miss.1990). In determining whether the Odoms met their burden, we view the evidence in the light most favorable to the party in whose favor......
-
State v. J.L.M.
...the legal interests of these two boys, though we know it is but a crude and partial approximation of justice"); Butler v. Pembroke, 568 So.2d 296, 299 (Miss.1990) (Robertson, J., for the Court) (civil dispute between corporation and employee-"We accept with regret that we may not order done......