Johnson & Placke v. Norris

571 So. 2d 702, 1990 La. App. LEXIS 2867, 1990 WL 194152
CourtLouisiana Court of Appeal
DecidedDecember 5, 1990
Docket21960-CA
StatusPublished
Cited by4 cases

This text of 571 So. 2d 702 (Johnson & Placke v. Norris) 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
Johnson & Placke v. Norris, 571 So. 2d 702, 1990 La. App. LEXIS 2867, 1990 WL 194152 (La. Ct. App. 1990).

Opinion

571 So.2d 702 (1990)

JOHNSON & PLACKE, et al., Plaintiffs-Appellees,
v.
James A. NORRIS, Jr., Defendant-Appellant.

No. 21960-CA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 1990.
Writ Denied January 31, 1991.

*703 Bruscato, Loomis & Street by Albert E. Loomis, III, Monroe, for defendant-appellant.

Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, for plaintiffappellee.

Before MARVIN, C.J., and LINDSAY and HIGHTOWER, JJ.

MARVIN, Chief Judge.

In an action by a law partnership and its partners for an accounting, restoration of funds, and damages against a partner who withdrew from the firm, the withdrawing partner appeals a summary judgment dismissing that part of his reconventional demand to partition immovable property on which the office building of the partnership is located.

The right to partition hinges on whether the property is owned by the partners individually, in which case partition lies, or by the partnership entity that has been created by a written contract registered with the secretary of state, in which case the partnership owns the property and partition does not lie. CC Art. 2806; LRS 9:3401 et seq.

The withdrawing partner contends that the written "short form" partnership contract which was registered with the secretary of state was legally insufficient because it does not provide how the profits and losses of the partnership were to be shared and allocated by the partners.

Answering, the partnership and remaining partners ask that we award damages *704 against the withdrawing partner for frivolously appealing. CCP Art. 2164.

While finding the appeal not frivolous, we affirm.

FACTS

The law firm originally had four partners: defendant Norris, Robert Foley, who withdrew from the firm before Norris did and who is not a party to the action, and plaintiffs Johnson and Placke. The partnership was formed on November 5, 1984, when the four partners signed "Articles of Partnership" in authentic form stating the name and address of the partnership and of each partner. The "short form" articles conclude with this paragraph:

The entire Agreement of the partners has been reduced to writing and signed by each partner on the 5th day of November, 1984, in West Monroe, Louisiana, with the said written agreement along with all of its terms and conditions incorporated herein in full with said written agreement on file in the offices of NORRIS, JOHNSON, PLACKE & FOLEY, ATTORNEYS, at 2000 North 7th Street, Suite B, West Monroe, Louisiana 71291.

The short form articles were filed with the secretary of state on November 1, 1985, about a year after the partnership was formed and about a month before the vacant land for the firm's office building was acquired and $300,000 in construction financing was borrowed by the partnership. All of the December 1985 sale and loan documents name the partnership, and not the individual partners, as the purchaser/borrower. The partnership appears as mortgagor of the property which was mortgaged to secure a $50,000 bank loan to the partnership in June 1986.

The firm's "long form" partnership agreement, referred to in the short form articles quoted above, contains 15 articles dealing with matters such as capital contributions, bank accounts, profits, losses and draws, and dissolution. It appears to have been signed by all four partners and is in the form of an authentic act, but it is not dated, witnessed or notarized.

Plaintiffs did not find the long form articles in the law office until after they had filed their motion for partial summary judgment supported by the short form articles and the sale, loan closing and other documents. Plaintiffs filed the original of the long form articles in the trial court with a request for admission of genuineness of document. Norris obtained an extension of time to respond to the request and had not formally responded to it when the summary judgment motion was heard.

Norris filed an answer to the summary judgment motion, attaching a copy of the long form articles and swearing in an affidavit that his signature on the long form articles was either forged or was obtained by fraud, misrepresentation or illegality. In depositions filed before the motion for summary judgment was decided, both Norris and Foley said they would not have knowingly signed the long form agreement because it conflicted with their understanding of how profits would be shared.

On December 31, 1986, the date of Foley's withdrawal from the firm, he and the remaining three partners executed an authentic act entitled "First Amendment to Articles of Partnership of Norris, Johnson, Placke & Foley," to reflect the changes in the firm's name to Norris, Johnson & Placke, Attorneys, and in address to their newly completed office building. The 1986 short form amendment of the articles also stated that the "entire ... written agreement" of the partners, dated December 31, 1986, was registered with the secretary of state and was kept on file at the law office. An amended long form agreement was prepared in December 1986 but was never signed. Although the record does not show the date of registry of the short form amended articles, Norris does not dispute that the short form articles, originally and as amended, were signed by the partners and were registered with the secretary of state.

Plaintiffs effectively alleged in the main demand against Norris that he had depleted the firm's capital by unilaterally paying more than $300,000 that was owed by the partnership on the debt it incurred *705 in 1985 to build the partnership's office building in West Monroe. Plaintiffs sought an accounting, restoration of funds, and damages from Norris.

In his answer and reconventional demand, Norris sought, among other things, a partition of the immovable property, contending it was owned by the individual partners and their wives. He also filed notice of the pendency of the partition demand in the Ouachita Parish real estate records.

In their motion for partial summary judgment plaintiffs asked that the partition demand be dismissed and the notice of lis pendens cancelled, contending the property is owned by the partnership and not by the individual partners. The trial court's summary judgment granted what plaintiffs sought.

LAW

Under CC Art. 2806, immovable property "acquired in the name of a partnership is owned by the partnership if, at the time of acquisition, the contract of partnership was in writing. If the contract of partnership was not in writing at the time of acquisition, the immovable is owned by the partners."

LRS 9:3402 directs that the "contract of partnership ... shall be filed for registry with the secretary of state in accordance with the provisions of this Chapter to affect third persons as provided by [CC Art.] 2806 ..." The "required content" of the contract for registry purposes is stated in § 3403:

A contract of partnership filed for registry with the secretary of state shall contain the name of the partnership, the municipal address of its principal place of business in this state, and the name and the municipal address of each partner, including partners in commendam, if any.

SUMMARY JUDGMENT

Norris does not deny that the partnership existed when the property was acquired, but contends the partnership agreement was oral and not written.

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Related

In Re Norris
183 B.R. 437 (W.D. Louisiana, 1995)
Comet Industries, Inc. v. Lawrence
600 So. 2d 85 (Louisiana Court of Appeal, 1992)
Guy v. Madison Parish School Bd.
579 So. 2d 1108 (Louisiana Court of Appeal, 1991)
Norred v. Norred
571 So. 2d 702 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
571 So. 2d 702, 1990 La. App. LEXIS 2867, 1990 WL 194152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-placke-v-norris-lactapp-1990.