Lloyd v. Zollman
| Citation | 590 P.2d 222,285 Or. 161 |
| Parties | Bernard M. LLOYD, Respondent, v. Alfred ZOLLMAN, Appellant. TC 7928; SC 25514. |
| Decision Date | 07 February 1979 |
| Court | Supreme Court of Oregon |
Carl G. Helm, LaGrande, argued the cause for appellant. With him on the briefs were Helm & Petersen and W. Alfred Mukatis, LaGrande.
William L. Reynolds, Enterprise, argued the cause for respondent. With him on the brief was Lorin M. Ricker, Enterprise.
Before DENECKE, C. J., and HOLMAN, HOWELL, LENT and LINDE, JJ.
This is a suit for dissolution of a partnership and for certain interlocutory relief pending final determination. Plaintiff alleged that the partnership should be dissolved by reason of alleged breaches by defendant of the contract of partnership. Defendant denied any breach on his part and by way of "cross-complaint" sought a decree that the partnership had been "determined" by the alleged withdrawal of plaintiff some ten months prior to the institution of this suit. Defendant, also, sought judgment for damages for an alleged breach of the contract by plaintiff and for the procurement of a preliminary injunction in this suit.
Defendant appeals from the "decree" 1 of the trial court, which we shall not summarize here because its provisions are not meaningful without review of the events which led up to the entry of the decree. The decree is erroneous in some respects and the matter must be remanded for further proceedings.
We have had a certain amount of difficulty in coming to grips with this case because of the state of the record on appeal and the failure to comply with our rules of procedure in appellant's brief. 2 In particular the failure of the defendant to follow Rule 7.17 is a glaring example with respect to the matter of the rules. With respect to the record, defendant designated only the trial court file. 3 Plaintiff filed no designation of additional parts of the record, ORS 19.029(2), but nevertheless attached to his brief 18 pages of what purports to be a transcript of proceedings at a hearing held on October 20, 1976. In addition to the want of designation of this transcript as a part of the record on appeal, there is no certificate of any kind as to who transcribed the tape, and there is no order settling it as being accurate. We refuse to consider it for any purpose.
On November 5, 1974, plaintiff and defendant entered into a written contract of partnership. The partnership was to conduct a farming and ranching business. There was to be an equal division of profits or losses. Defendant, who had been engaged in this type of business in partnership with another person prior to November 5, 1974, provided as his capital contribution the farming equipment, livestock and growing crops necessary for operation of the business. Plaintiff's contribution consisted of the obligation to "arrange financing to pay off loans and other obligations owing by (the defendant)." The agreement recited that the respective capital contributions were to be deemed equal.
On September 14, 1976, plaintiff filed the present suit seeking dissolution of the partnership, appointment of a receiver for liquidation of partnership assets, and an order enjoining the defendant from disposing of any partnership assets. Plaintiff alleged that the defendant had breached the partnership agreement in certain important particulars such as to justify dissolution and the interlocutory relief sought. On the same date plaintiff applied for a preliminary injunction enjoining defendant from disposing of any partnership assets. Upon this ex parte application the court by order dated September 14, 1976, but "filed" on September 15, 1976, enjoined defendant from selling, encumbering, disposing of or dissipating any of the partnership property, assets or monies and further ordered the defendant to show cause why the injunction should not be extended until the partnership had been dissolved and the winding up of the partnership business had been accomplished.
On September 28, 1976, defendant filed his answer and "cross-complaint" as described in the first paragraph of this opinion. On the same date he filed a motion to dissolve the preliminary injunction.
The motion to dissolve the preliminary injunction came on for hearing on October 20, 1976, at which time the parties appeared personally and by their respective counsel. The court was informed that the parties had agreed that the preliminary injunction would be dissolved and would stipulate to the entry of an order to govern further proceedings. A written order was prepared and signed on November 23, 1976, "nunc pro tunc the 20th day of October, 1976." The parties and their attorneys in writing approved the order as to form. The order provided in pertinent part as follows:
There is no testimony or evidence before us to permit us to exercise the appellate function of trying this cause "anew upon the record." ORS 19.125(3). From the trial court file and uncontradicted or admitted assertions in the briefs of the parties we find the following to have occurred.
Defendant failed to make any payment to plaintiff on account of attorney's fees. On the other hand, we have no way of knowing whether verified time slips of plaintiff's attorneys were presented to defendant.
On January 21, 1977, the receiver filed his inventory.
Nothing had been paid on the $75,000 note 4 by January 20, 1977. On January 24, 1977, the receiver and the defendant effected a sale of part of the partnership cattle. The proceeds of this sale were deposited by the receiver in a special checking account and under the terms of the agreement with the bank concerning that account checks were required to be signed by both the defendant and the receiver. Thereafter, the defendant and receiver signed checks made payable to the plaintiff (and presumably delivered to plaintiff and cashed by him) on the following dates in the indicated amounts:
Meanwhile, on May 4, 1977, defendant filed a motion for an order discharging the receiver, requesting that plaintiff be required to file a reply, and that the matter be set for trial. On May 18, 1977, the plaintiff filed affidavits of his counsel and of the receiver alleging various violations of the terms of the stipulated order and applied for a writ of assistance to put the receiver in possession of the partnership assets to carry out the terms of the stipulated order. On May 31, 1977, the court ordered that a writ of assistance be issued to the sheriff to place the receiver in possession of the partnership assets and property, and on the same day a writ was issued. (Presumably the writ was executed, although we can find no return in the trial court file.)
On August 23, 1977, the defendant again filed a "Motion for Trial" in pertinent part as follows:
"Defendant requests the Court for an Order setting the remaining issues in this case for trial, and for the reason that there has been no accounting by the receiver, no disposition of the claims made in the pleadings other than the disposition of some assets of the partnership, there has been no dismissal of any of the pleadings, there has been no determination of plaintiff's early withdrawal from the partnership, there has been no dissolution, no winding up, and no termination."
On the same day the receiver filed an accounting which showed certain net receipts from the sale of cattle and "Partnership Machinery." The accounting asserts as total net receipts the sum of $70,514.46. The accounting lists four disbursements. The first of these allegedly took place on November 13, 1976, and was disbursed to defendant "for operating expenses and...
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