Cannon v. Bertrand

981 So. 2d 169, 7 La.App. 3 Cir. 1278, 2008 La. App. LEXIS 565, 2008 WL 1734158
CourtLouisiana Court of Appeal
DecidedApril 16, 2008
DocketNo. CA 07-1278
StatusPublished
Cited by1 cases

This text of 981 So. 2d 169 (Cannon v. Bertrand) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannon v. Bertrand, 981 So. 2d 169, 7 La.App. 3 Cir. 1278, 2008 La. App. LEXIS 565, 2008 WL 1734158 (La. Ct. App. 2008).

Opinion

SAUNDERS, Judge.

1 ,This is a case wherein a withdrawing partner disputes the value assigned to his share of the partnership by the court below. The partnership, when faced with the withdrawal, chose to continue the partnership and, therefore, had to pay the withdrawing partner for the value of his share. After the parties could not agree to that value, the withdrawing partner sought a judicial determination of the value of his share in the partnership.

The trial court totaled the assets of the partnership, $1,054,368, with one-third of that total being $351,456. Next, the trial court determined that the $351,456 should be discounted by applying a minority discount of 35%. The trial court found the result, $228,447, to be the true market value of the withdrawing partner’s share. The withdrawing partner has appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

LBC, L.L.P. (LBC) was a partnership formed by three persons, Kenneth John Cannon, Jr. (Cannon), Lenard Bertrand [171]*171(Bertrand), and Wade William Leger (Leger), by a written agreement on March 25, 1997. LBC’s stated purpose was to engage in agricultural pursuits including the sale and harvest of timber. This matter arises out of Cannon’s withdrawal and subsequent demand for the payment of the value of his one-third share in LBC.

According to the partnership agreement, profits and losses are shared at 33½ for each partner, with no partner receiving any compensation, salary, or drawing account from the partnership. The partnership agreement further provides that the partners have an equal voice in management.

On April 11, 1997, LBC purchased approximately 562 acres of land located in Jefferson County, Mississippi for $450,000. The property was purchased for the | ¡.occasional sale of timber and for the partners to hunt.

At some time in the first half of 2006, Cannon notified Bertrand and Leger of his intention to withdraw from LBC. After some apparent discussion and failure to reach an agreement of the value of his one-third interest, Cannon filed a petition for determination and payment of withdrawing partner’s interest on November 2, 2006. Cannon sought a judicial determination of the value that his partnership share had at the time that his membership ceased in accordance with La.Civ.Code arts. 2823, etseq. A trial was held on June 14, 2007.

The trial consisted mainly of an extensive discussion of the various expert’s respective valuations of the underlying assets of the partnership and the value of Cannon’s share. Each party presented a certified appraiser, whose valuation included a timber appraisal by a professional forester, to compute the value of the underlying assets of the partnership, and a Certified Public Accountant (CPA)/valuation expert to extrapolate from the value of the assets, a valuation for the total partnership, and ultimately, Cannon’s share.

On July 17, 2007, the trial court found that the total value of the partnership was $1,054,368, with one-third of that value being $351,456. The trial court then applied a minority discount of 35% to reach a determination that the true market value of Cannon’s share was $228,447. Cannon appealed, citing four assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in its legal conclusion that a “discount of some amount,” from the “value” otherwise due under Articles 2823-24, was warranted because a withdrawing partner would otherwise receive an amount “equivalent to liquidation without the cost of a liquidation.”

2. The trial court erred in its legal conclusion that a “discount of some amount,” |sfrom the “value” otherwise due under Articles 2823-24, was warranted because the law does not allow the withdrawing partner “a right to demand liquidation” and “there should be some trade off between allowing a partner to withdraw without consent ... and requiring the partnership to pay, in money, the value to the withdrawing partner.”

3. The trial court erred in interpreting and applying Shopf v. Marina Del Ray Partnership, 549 So.2d 833 (La.1989) to authorize or require the sua sponte imposition and judicial determination of “a discount of some amount” which resulted in the deduction of $123,009 from the “value” otherwise due under Articles 2823-24.

4. The trial court erred in its legal conclusion that a “discount of some amount,” from the “value” otherwise [172]*172due under Articles 2828-24, was not contrary to Louisiana law.

ASSIGNMENTS OP ERROR #1, #2, # 3, and # 4:

Although Cannon lists four assignments of error, the crux of each assignment is that the trial court should not have used a minority discount in determining the value of his partnership share. As such, we will address the appropriateness of the trial court’s application of a minority discount to this case under one heading.

STANDARD OF REVIEW:

Cannon’s assignments of error are termed as issues of law. Consequently, he contends that the de novo standard of review is applicable to the case before us. We do not agree.

Under Shopf v. Marina Del Ray Partnership, 549 So.2d 833 (La.1989), a court is given the option to apply a minority discount when attempting to determine the value of a minority share in a closely held business. The choice to apply a minority discount is at the discretion of the court. Therefore, we will look to the record and determine whether the trial court abused that discretion.

THE TRIAL COURT’S USE OF A MINORITY DISCOUNT:

“The former partner, his successors, or the seizing creditor is entitled to an Lamount equal to the value that the share of the former partner had at the time membership ceased.” La.Civ.Code art. 2823. “If a partnership continues to exist after the membership of a partner ceases, unless otherwise agreed, the partnership must pay in money the amount referred to in Article 2823 as soon as that amount is determined together with interest at the legal rate from the time membership ceases.” La.Civ.Code art. 2824.

In Shopf, our Supreme Court established the basis for determining the value a withdrawing partner’s share to be that of “fair market value.” The Shopf court defined “fair market value” by stating:

Fair market value is defined generally as the price that a willing buyer would pay to a willing seller for a certain piece of property in an arm’s length transaction, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts. See Black’s Law Dictionary 537 (rev.5th ed. 1979).

Id. at 839.

Next, the Shopf court took an offer by one of the continuing partners, made just prior to the withdrawing partner expressing his intent to withdraw, and adjusted that amount for “other considerations.” Id. at 840. When discussing the “other considerations,” the court stated:

The most significant adjustment must be made in recognition of the fact that plaintiffs share is a minority interest in a closely held business.

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Related

Cannon v. Bertrand
2 So. 3d 393 (Supreme Court of Louisiana, 2009)

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981 So. 2d 169, 7 La.App. 3 Cir. 1278, 2008 La. App. LEXIS 565, 2008 WL 1734158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-bertrand-lactapp-2008.