Grasser v. McLaughlin

826 P.2d 2, 111 Or. App. 140, 1992 Ore. App. LEXIS 351
CourtCourt of Appeals of Oregon
DecidedFebruary 12, 1992
Docket85-0816C; CA A65505
StatusPublished

This text of 826 P.2d 2 (Grasser v. McLaughlin) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grasser v. McLaughlin, 826 P.2d 2, 111 Or. App. 140, 1992 Ore. App. LEXIS 351 (Or. Ct. App. 1992).

Opinion

JOSEPH, C. J.

In this action for an accounting and for dissolution of a partnership and distribution of partnership assets, plaintiff assigns error to the trial court’s allocation of business expenses in calculating partnership profits and its failure to allocate to him any profits attributable to his interest in the partnership business that continued after dissolution. We review de novo, ORS 19.125(3), and affirm.

The parties orally formed their partnership, Pacific Insurance Associates (PIA), in May, 1980, to sell supplemental health insurance policies as a general agent. Partnership income was earned by collecting “overwrites”1 from policies sold by PIA’s subagents. The partners agreed to share partnership profits equally, but each would retain the commissions on his own sales. The business initially operated out of defendant’s home. Although the partners never formally decided what duties each would perform, defendant did the record keeping and accounting. Both participated in hiring and supervising subagents, and both contributed small amounts of cash to pay minor expenses as they arose. By 1982, PIA had hired approximately 20 subagents, who primarily sold policies for 4 insurers.

Sometime in 1982, the partners decided to enlarge the territory in which PIA was authorized to sell policies. They first considered acquiring exclusive authority to sell policies in Pocatello, Idaho, for Life Investors Insurance Company. They met with that company’s regional vice-president, who informed them that, although they could conduct business as a partnership, one partner would have to move to Pocatello to manage the office there. Plaintiff testified: “We played a game of gin to decide who went and I lost.” After plaintiff visited the office in Pocatello, however, the partners decided that they would not take on that territory.

Later the partners learned that Investors Insurance Corporation (Investors), for which they were selling policies in Oregon, had an exclusive sales territory available in Washington. Investors, however, would not allow a general agency [143]*143to control territory in both states. The partners agreed to create the appearance of dissolving the partnership in order to obtain the territory in Washington.2 They decided that plaintiff would move to Spokane to establish an office there. He moved in April, 1982, and opened a bank account under the name Inland Northwest Insurance Service.

In September, 1982, defendant became the regional sales representative for National Foundation Life Insurance Company (NFL). Overwrites on policies written for that company were not partnerships assets.3 Nevertheless, defendant used the PIA bank account for NFL business and followed no systematic procedure to separate partnership from non-partnership records.

Investors eventually changed its commission disbursement procedures, raised its premiums and implemented a more restrictive underwriting policy. Sales of its policies declined sharply as a result. The employees working in Spokane —including plaintiff — began selling NFL policies ás sub-agents for defendant. In June, 1983, the parties met to discuss the dissolution of their partnership. They reached no agreement, however, and both continued to work for and receive compensation from the partnership. In June, 1985, plaintiff filed the complaint in this action. He formed a separate insurance agency in February, 1986. The trial court [144]*144found that the dissolution of the partnership actually occurred in February, 1986, but, pursuant to an agreement of the parties, the judgment declared December 31,1986, to be the effective date of dissolution.

The trial court then appointed an independent accountant as the referee to calculate the partnership assets and profits to be distributed. The referee’s reports were expressly accepted by the parties. Because the actual original records were incomplete, the referee used computer-generated records purportedly prepared by defendant’s wife from original documents. The court relied on the referee’s reports in finding that PIA assets included $3,767.90 in cash and $14,975 in accounts receivable and that the only other assets — used office furniture and additions to defendant’s computer system — had virtually no value. An equal division would result in an award of $9,371.45 to each partner. However, the court also found that plaintiff had overdrawn his capital account by $7,643.

Plaintiff argues that the trial court erred by adopting the referee’s method of allocating expenses, particularly those itemized as “lead expenses,”4 on a prorated basis between defendant’s individual business and the partnership’s business. He argues that, beginning in 1983, partnership income “was primarily, if not solely, attributable to policy renewals requiring no new sales and generating no business expenses, other than the minor expense involved in receiving and depositing checks in the partnership account.”

Plaintiff asserts that none of the lead expenses should be subtracted from the partnership’s gross income, because few, if any, new policies were sold by the partnership after 1983. He asks us to “exclude all business expenses run through the partnership account from 1983 through the date of dissolution in 1986.” The trial court found that “the evidence regarding the so-called lead expenses is extremely uncertain.” Plaintiff produced no evidence to show that the partnership did not purchase any leads, as it would have in the ordinary course of its business. Although the parties agreed that sales of Investors’ policies had declined sharply by [145]*145June, 1983, the record contains no evidence about sales of policies for the other companies that the partnership represented. Moreover, the parties and the referee were unable to determine whether or how many leads resulted in sales. The partnership might have purchased any number of fruitless leads. What actually happened is not part of the record. Plaintiff did not prove by a preponderance of evidence that a pro rata allocation of expenses is inaccurate or that any other method would be more accurate. The referee’s method is the only equitable approach supported by the record.

Plaintiff also assigns error to the trial court’s failure to include the ongoing business value of PIA assets in making its distribution. He cites ORS 68.640 and Timmermann v. Timmermann, 272 Or 613, 627, 538 P2d 1254 (1975):

“If the withdrawing partner allows the business to continue, the value of his interest in the partnership as of the date of dissolution is ascertained. He then has the right to receive, at his option after an accounting, either the value of his interest in the partnership with interest or, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership. ORS 68.640.”5 (Emphasis supplied; citations omitted.)

The value of plaintiffs interest in the partnership as of December 31, 1986, was less than zero: He owed defendant $7,643.

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Related

Timmermann v. Timmermann
538 P.2d 1254 (Oregon Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
826 P.2d 2, 111 Or. App. 140, 1992 Ore. App. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grasser-v-mclaughlin-orctapp-1992.