O. K. HOUSTOUN, JR., APPELLANT,
v.
GORDON M. ALBURY, JR., AND GAIL B. BALDWIN, APPELLEES

Fla. 3d DCA | 1976-10-26
Nos. 75-1428, 75-1435
Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
339 So. 2d 220 Florida District Court of Appeal, Third District (1976) Positive Treatment
Cited by 2 cases

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Synopsis

In this partnership dissolution case, the Florida District Court of Appeal affirmed the trial court's finding that three sequential partnerships existed between the parties, but reversed and remanded because the trial court prematurely appointed a receiver and entered partial judgment without first conducting a full and final accounting of partnership assets and debts.


Holding

The court affirmed the trial court's finding that the partnerships existed based on proper application of partnership formation principles. However, the court reversed the receiver appointment and partial final judgment as premature, holding that the trial court was required to order a full and final accounting of all partnership affairs before taking such action.


Headnotes

[1] A trial court may properly find that partnerships existed based on the evidence presented.

[2] A trial court prematurely enters an order appointing a receiver and entering a partial final judgment in a partnership dissolution action before requiring a full and fina…

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Key Quotes

“Prior to entering the order, the trial court should have required a full and final accounting of the partnerships' affairs.”

Establishes the mandatory procedural requirement that full accounting must precede appointment of receiver in partnership dissolution cases.

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Facts & Procedural History

Three partnerships were found to exist: (1) between Albury and Houstoun from September 1962 to January 1965; (2) among Albury, Houstoun, and Baldwin f…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant brings these consolidated appeals from an order styled “Order Appointing Receiver and Partial Final Judgment” entered by the trial court sitting nonjury. In its order, the trial court found, among other things, that three partnership entitles existed between the parties as follows:

(1) between appellee Gordon Albury, Jr., and appellant O. K. Houstoun, Jr., from September, 1962, to January 1, 1965;

(2) between Albury, Houstoun, and appellee Gail B. Baldwin from January 1, 1965, to June 30, 1968; and (3) between Houstoun and Albury from July 1, 1968, to September 30, 1968.

The trial court ordered that the 1968 partnership should be dissolved and that whatever assets remained in existence in 1975 from the partnership should be taken into custody by a receiver. The trial court also ordered that the parties file a plan of distribution in kind or a plan for sale, but the order did not mention the need for a full final accounting or the payment of the debts of the partnership.

In the same order, the trial court also entered a judgment in favor of appellee Albury and against appellant for the fair market value of certain shares of stock which the trial court found had been acquired, in appellant’s name, by him and appellee Albury during the first partnership. This stock was sold by appellant after the termination of all the partnerships to pay a partnership debt. Further, all costs of the proceedings were taxed against appellant.

Because portions of the order were both interlocutory and final, appropriate appeals were filed by appellant and subsequently consolidated for all appellate purposes by this court.

Among the several points raised by appellant on appeal are two which we feel require some discussion. The first of these pertains to the basic question of whether or not the trial court properly found that the partnerships, as set forth above, existed. The Florida courts have been called upon on numerous occasions to determine whether or not, under the facts of a particular case, a partnership exists. See, e. g., 24 Fla.Jur., Partnerships §§23 through 32 and the cases cited therein. It is unnecessary for us to itemize these tests or indicia of partnership. We have carefully reviewed the record in the instant case and, based upon the principles set forth above, have concluded that the trial court properly determined that the partnerships existed.

The second point which requires discussion is whether or not the trial court in the action for dissolution and accounting, after finding that the partnerships existed, properly proceeded to order a full final accounting and to provide for the payment of the debts of the partnerships. Again, after a careful review of the record and the appellate proceedings in this case, we have concluded that the trial court prematurely entered its order appointing a receiver and entering a partial final judgment. See Wiese v. Wiese, 107 So. 2d 208 (Fla.2d DCA 1958); Section 620.755, Florida Statutes (1975); and 24 Fla.Jur., Partnerships §§ 165 through 169. Prior to entering the order, the trial court should have required a full and final accounting of the partnerships’ affairs. Therefore, the cause is remanded to the trial court for a full and final accounting and for such other action which is not inconsistent with this opinion. Further, in light of the above determinations, we feel that it is unnecessary for us to discuss at this time the other points raised on appeal by appellant.

Our decisions, as stated above, were based upon a consideration of the record, all points in the briefs and arguments of counsel in the light of the prevailing principles of law.

Affirmed in part, reversed in part, and remanded with directions.


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Citator

Cited By

  • O.K. Houstoun, Jr. v. Albury, 436 So. 2d 224 (Fla. 3d DCA 1983)
    …d the additional points raised on appeal and cross-appeal and after a careful review of the record,, briefs, and applicable law, find them to have no merit. Accordingly, the final judgment of accounting is affirmed. Affirmed. . Houstoun v. Albury, 339 So. 2d 220 (Fla. 3d DCA 1976). . From September, 1962 to January 1, 1965 between Houstoun (⅜) and Albury (Via); from January 1, 1965 to June 30, 1968 between Al-bury (28%), Houstoun (51%) and Baldwin (21%); from July 1, 1968 to September, 1968 between Houstou…

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