Jones v. Sherrell

52 So. 3d 527, 2010 Ala. Civ. App. LEXIS 169, 2010 WL 2465468
CourtCourt of Civil Appeals of Alabama
DecidedJune 18, 2010
Docket2090240
StatusPublished
Cited by3 cases

This text of 52 So. 3d 527 (Jones v. Sherrell) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Sherrell, 52 So. 3d 527, 2010 Ala. Civ. App. LEXIS 169, 2010 WL 2465468 (Ala. Ct. App. 2010).

Opinion

THOMAS, Judge.

Orvid Dwight Jones and William D. Jones (hereinafter sometimes referred to collectively as “the Jones defendants”) appeal from a judgment of the Blount Circuit Court in favor of Daryl R. Sherrell on his claims regarding his disassociation from and the dissolution of The Great Pumpkin Patch (“the GPP”), a partnership that the parties had formed and operated.

Facts and Procedural History

In 1992, Sherrell, William, and Jim Brand formed the GPP. The GPP operated a working pumpkin farm where people could, for a fee, harvest a pumpkin from its fields, purchase foods and beverages, and participate in other activities. The GPP was typically open to the public during October of each year. After the GPP’s first year of operation, Orvid replaced Brand as the third partner in the GPP and the GPP began operating on a parcel of property owned by Orvid, where it continued to operate at all times relevant to this case. The parties did not create a written partnership agreement; however, the parties orally agreed that each would own a one-third share in the GPP and that the parties would equally share in the GPP’s profits and liabilities.

In 2005, Sherrell’s wife, Alice, filed for a divorce. Thereafter, the Jones defendants excluded Sherrell from the operations of the GPP.1 The GPP continued to operate during 2005 and 2006; the GPP ceased its operations at the end of 2006. The Jones defendants did not pay Sherrell a distribution of the GPP’s profits in 2005, and they did not pay Sherrell for his one-third ownership interest in the GPP.

Sherrell sued the Jones defendants, requesting that the trial court dissolve the GPP, conduct an accounting, and supervise the winding up of the GPP’s affairs, pursuant to the Uniform Partnership Act (“the UPA”), codified at Ala.Code 1975, § 10-8A-101 et seq. In his complaint, Sherrell also claimed that the Jones defendants had breached their fiduciary duty to Sherrell, pursuant to § 10-8A-404 of the UPA, and that the Jones defendants had converted partnership assets for the Jones defendants’ personal use. Sherrell further requested that the trial court impose a constructive trust on the assets and proceeds of the GPP. The trial court held a hearing on Sherrell’s complaint, at which it heard ore tenus evidence.

Sherrell handled the finances for the GPP from its inception through 2004. [530]*530Sherrell testified that he and sometimes William and/or Alice would count the money at the end of each day and that Sherrell would then take the money home and keep it in a safe. Sherrell would deposit some of the money in the bank each week to ensure that the GPP had enough money to cover its expenses. Sherrell further testified that he delivered the financial information to the accountant who prepared the income-tax forms for the GPP each year through 2004. According to Sherrell, the parties agreed that they would not keep any written records of the GPP’s revenues and that they would not report all the GPP’s income to the Internal Revenue Service (“IRS”). Sherrell stated that the GPP had underreported its income to the IRS every year that he was actively involved with the GPP. According to Sher-rell, at the end of each year the parties would split whatever cash had accumulated in the safe at Sherrell’s house. Sherrell testified that he had received a $30,000 cash distribution from the GPP in 2004. William also admitted that he had received approximately $30,000 in cash as a distribution in 2004.

In 2001, the GPP borrowed $185,000 to add a Christmas-lights display to the attractions at the GPP. The GPP made periodic payments on the loan until it was paid off in 2008. After 2004, Sherrell did not contribute to the payment of the remaining loan balance.

Sherrell testified that in 2004 approximately 500 schoolchildren had visited the GPP each weekday during the monthlong season when it was open. Sherrell also testified that between 3,000 and 5,000 people had visited the GPP on each weekend. Sherrell further testified that, from his personal observations, the attendance in the following years had been similar to the attendance in 2004. Martha Franklin, an employee of the GPP, and Franklin Lackey, a private investigator hired by Sher-rell, each observed the operation of the GPP in October 2006 and testified as to their estimates of the number of vehicles in the parking lot, the number of attendees, and the average amount of money spent per person at the GPP. Franklin’s and Lackey’s observations corresponded with Sherrell’s observations that attendance at the GPP in 2005 was equivalent to the attendance in 2004.

Alice testified that she began handling the finances for the GPP after Sherrell was excluded from its operation. According to Alice, she deposited in the bank all the revenue earned by the GPP in 2005; she stated that no money was held back except for a small amount that the GPP had needed for its daily operation. Alice further testified that there was no cash left over at the end of 2005 after the GPP had made its payment on the outstanding Christmas-lights-display loan. William testified that his share of the distribution of the profits for 2005 was $7,621. William and Alice both testified that the GPP had a lower profit in 2005 even though its reported revenue had increased as compared to 2004. Alice also testified that fewer people had visited the GPP in 2005 than in 2004.

According to William, Sherrell had retained the checkbook for the GPP and the money left in Sherrell’s safe at the beginning of 2005. Sherrell admitted that he had retained the money that was in his safe at the beginning of 2005 and the checkbook for the GPP account. Sherrell stated that the safe had contained an unknown amount of money in change and that the GPP account had contained approximately $6,000 at the end of 2004.

Jackie Pearce, an expert witness on the subject of business evaluation, testified that he had reviewed the available financial information relating to the GPP and [531]*531had concluded that the revenue and profit reported on the GPP’s 2005 income-tax return was less than the GPP’s actual revenue and profit. Pearce stated that he had reached his conclusion after personally observing the business operation and after reviewing Franklin’s and Lackey’s reports, the GPP’s bank records for 2005 and 2006, the school-group-reservation logs, and the GPP’s tax returns for 2005 and 2006. Pearce stated that, based on his evaluation, Sherrell should have received $30,000 as a distribution for his share of the GPP’s profits in 2005.

The trial court entered a judgment dissolving the GPP, awarding Sherrell $30,000 as a partnership-profit distribution for 2005, $32,167 as Sherrell’s partnership interest in the GPP, $12,744.24 in prejudgment interest, and $20,000 as an attorney fee. In its judgment, the trial court offset the amounts awarded to Sherrell by $34,077.90, representing Sherrell’s portion of the outstanding debt of the GPP at the time of Sherrell’s disassociation. Both Sherrell and the Jones defendants filed postjudgment motions, which the trial court denied. The Jones defendants appealed to the Alabama Supreme Court, and that court transferred this case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Issues

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Turner v. Turner
210 So. 3d 603 (Court of Civil Appeals of Alabama, 2016)
O'Barr v. O'Barr
163 So. 3d 1076 (Court of Civil Appeals of Alabama, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
52 So. 3d 527, 2010 Ala. Civ. App. LEXIS 169, 2010 WL 2465468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-sherrell-alacivapp-2010.