Rosillo v. Winters, 850248
| Decision Date | 22 April 1988 |
| Docket Number | No. 850248,850248 |
| Parties | Ronald H. ROSILLO v. Lawrence J. WINTERS, et al. Record |
| Court | Virginia Supreme Court |
C. Torrence Armstrong, McLean, (James F. Pascal, Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, on briefs), for appellant.
N. Leslie Saunders, Jr. (Charles W. Hundley, Saunders, Hundley & Gilliam, Richmond, on brief), for appellees.
Present: All the Justices.
In this partnership controversy, we consider whether the allegations of the bill of complaint are sufficient to withstand demurrer and, if so, whether certain orders crucial to the regularity of the proceeding are void because entered in violation of the Rules of Court.
In March 1983, appellees Lawrence J. Winters and Ann M. Winters filed a bill of complaint against appellant Ronald H. Rosillo, alleging that the trio were partners under a partnership agreement. The plaintiffs asked the court below to require defendant to contribute certain sums to the partnership or, in the alternative, to appoint a receiver, to dissolve the partnership, and to dispose of its assets.
A demurrer was overruled and a receiver appointed. Eventually, the court entered a final decree dissolving the partnership, granting judgment against defendant for $97,760.77, and confirming plaintiffs' bid "to purchase the partnership" for $275,000. We awarded defendant an appeal from that decree entered in January 1985.
On appeal, defendant contends initially that the trial court erred in overruling the demurrer. He argues that the bill of complaint failed to state a cause of action upon which relief could be granted. We disagree.
A demurrer admits the truth of all material facts properly pleaded. Under this rule, the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged. Ames v. American National Bank, 163 Va. 1, 37, 176 S.E. 204, 215-16 (1934). We will examine the allegations of the bill of complaint in accordance with these principles.
The plaintiffs alleged that they entered into a partnership agreement with defendant in April 1979 for the purpose of "acquiring, developing and leasing real estate." A copy of the agreement was attached to the bill and provided that the profits and losses of the partnership would be borne in the following proportions: Lawrence Winters--25%; Ann Winters--25%; and Rosillo--50%.
The plaintiffs further alleged that several properties, listed on an attached exhibit, had been acquired by the partnership but that "for the past several years" the partnership had experienced "a negative cashflow resulting in substantial losses to the partnership." The plaintiffs also alleged that they had made "substantial cash contributions" to the partnership "in order for the partnership to keep from losing its property," but that defendant refused "to contribute his proportionate share." The plaintiffs further asserted that if "additional cash is not contributed by the partners immediately, then the partnership will lose its assets and all partners will suffer substantial losses."
Therefore, the plaintiffs alleged, the court should order defendant to account to the partnership. In addition, the plaintiffs asked the court to require defendant to contribute substantial sums to the partnership "so that the partnership can experience a positive cashflow," and "so that his contribution shall be equal to the contribution made by the plaintiffs to the partnership." In the alternative, the plaintiffs asked that a receiver be appointed to preserve and dispose of the assets of the partnership and that the partnership be dissolved.
Upon examination of the statutory requirements for dissolution of a partnership by decree of court, we agree with plaintiffs that the bill of complaint sufficiently states grounds for relief. Code § 50-32(1)(e) provides that, on application by a partner, the court shall decree a dissolution whenever the "business of the partnership can only be carried on at a loss." The plaintiffs alleged that for several years the real estate venture had sustained "substantial" losses and that the partnership was in immediate danger of losing its assets. Viewing these allegations as we must on demurrer, we hold that they barely are sufficient to support a claim that the business "can only be carried on at a loss." Therefore, the trial court properly overruled the demurrer, although an order never was entered expressly reciting the court's action on the demurrer.
We will not address another argument defendant made in support of his position that the demurrer should have been sustained. Defendant argues that the bill of complaint failed "to identify the basis upon which the trial court could order Rosillo to advance money to the partnership." He says that neither the common law, the applicable statutes, nor the partnership agreement furnish authority for the plaintiffs' claim. We have been presented with a confusing and inadequate record on appeal and we are not satisfied that this issue was fully developed at the trial level. Accordingly, and since this case will be remanded, that question is left open to be raised on remand.
The second contention made by defendant is that orders essential to the regularity of the proceeding were entered without notice to him and are void. He focuses on the order of August 18, 1983, which appointed a receiver to take charge of partnership assets, and the final decree of January 3, 1985. As will become obvious, we need address only the former order.
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