Kesterson Foods v. Scott

932 S.W.2d 935, 1996 Tenn. App. LEXIS 258
CourtCourt of Appeals of Tennessee
DecidedApril 30, 1996
StatusPublished
Cited by4 cases

This text of 932 S.W.2d 935 (Kesterson Foods v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kesterson Foods v. Scott, 932 S.W.2d 935, 1996 Tenn. App. LEXIS 258 (Tenn. Ct. App. 1996).

Opinion

CRAWFORD, Presiding Judge,

Western Section.

In this non-jury case, plaintiff, Kesterson Foods, appeals from the judgment of the trial court dismissing its suit against defendant, Ronnie Scott. The pertinent facts have been stipulated by the parties and are as follows. On April 5, 1990, Scott, as a limited partner, and James and Norma Foust, as general partners, formed a limited partnership entitled “Foust and Scott, L.P.” (hereinafter “Partnership”), the primary purpose of which was to operate a convenience store in Camden, Tennessee.1 Under the terms of the partnership agreement, Scott made a capital contribution of $26,000.00 to the Partnership. The capital contribution plus 12 percent interest per annum was to be repaid by the Partnership under an amortization plan in sixty (60) monthly payments of $591.58. The Partnership failed to make the scheduled payments to Scott and in June of 1992, the balance due was $17,026.61. In March of 1998, the Partnership and Scott negotiated a security agreement and financing statement, giving Scott a security interest in the convenience store’s inventory. The security agreement provided, in pertinent part:

This security interest is granted in consideration of the Secured Parties’ [Scott] forbearance from declaring a default, demanding payment in full and starting collection activities and to secure a certain obligation, evidenced in the Limited Partnership Agreement dated April 5, 1990, in the principal amount of twenty-six thousand dollars ($26,000), payable in sixty monthly installments of principal and interest at a variable rate, and other charges as provided therein, together with any extensions, modifications, and renewals thereof.

Scott duly perfected the security agreement by filing a UCC-1 financing statement on May 25,1993.

Not only did the Partnership fail to pay Scott, it also failed to make timely rental payments to its landlord and, consequently, the landlord entered and retook the premises on June 25, 1993. The landlord’s actions constituted an event triggering dissolution per the partnership agreement, but the record is silent as to any winding up of the partnership. The landlord thereafter contacted Scott, as the secured party, and negotiated a purchase of the inventory from him. A professional inventory control company valued the inventory at $11,102.22 and Scott sold the goods to the landlord for that amount.

Prior to the dissolution of the Partnership, Kesterson Foods delivered goods to the Partnership’s convenience store on open account. [937]*937When the Partnership ceased doing business, the Partnership’s account balance with Kes-terson was $6,043.00. Kesterson filed suit against Scott in general sessions court for:

damages in the amount of $6,043.00 due to Defendants’ violation of Limited Partnership Agreement with B-Rite Food Co. #504 and for T.C.A. § 61-2-802 in that the Defendant improperly circumvented the requirements of T.C.A. § 61-2-802 and the Limited Partnership Agreement when he received his capital contribution back from said partnership prior to payment of Creditors of which Kesterson Food Company is a Creditor of B-Rite Store #504 in the amount of $6,043.00.

From an adverse judgment in general sessions court, Kesterson appealed to the circuit court, and now appeals from the circuit court’s judgment dismissing its suit. Kester-son’s issue, as stated in its brief, is:

Who has priority in regard to the proceeds derived from the sale of assets of a limited partnership, a creditor of the partnership or a limited partner?

A determination of this issue is not disposi-tive of this appeal. Pursuant to T.C.A. § 61-2-804(a)(l) regarding distribution of assets, creditors are entitled to the first distribution. The real issue in this case is whether a limited partner may become a secured creditor by securing his contribution as a limited partner.

The main purpose of a limited partnership is to permit a form of business enterprise, other than a corporation, in which persons may invest money without becoming liable for the debts of the firm. 59A Am. Jur.2d Partnerships § 1240 (1987). In the instant case, Scott’s contribution to the limited partnership was $26,000.00, and the agreement provides for repayment of the capital contribution as heretofore set out. Scott asserts that this case involves a conflict between the “claim of a duly perfected secured creditor to his collateral and the claim of an unsecured creditor to the same assets.” We must respectfully disagree, because the first question to be answered is whether Scott can convert his capital contribution into a secured debt. We have no quarrel with Scott’s assertion that a limited partner may also be a creditor of the limited partnership. See T.C.A. § 61-2-108 (1989). However, we find nothing in the statute that would allow a limited partner to have the status of a creditor as to the amount of his contribution as a limited partner. The intent of T.C.A. § 61-2-804 (1989) is to the contrary. The statute provides:

61-2-804. Distribution of assets. — (a) Upon the winding up of a limited partnership, the assets shall be distributed as follows:
(1) To creditors, including partners who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the limited partnership (whether by payment or the making of reasonable provisions for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to partners under § 61-2-601 or § 61-2-604;
(2) Unless otherwise provided in the partnership agreement, to partners in satisfaction of liabilities for distributions under § 61-2-601 or § 61-2-604; and
(3) Unless otherwise provided in the partnership agreement, to partners first for the return of their contributions, and second respecting their partnership interests, in the proportions in which the partners share in distributions.
(b) A limited partnership which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including all contingent, conditional or unmatured claims and obligations, known to the limited partnership and all claims and obligations which are known to the limited partnership but for which the identity of the claimant is unknown. If there are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment made shall be made in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise provided in a partner[938]*938ship agreement, any remaining assets shall be distributed as provided in this chapter.

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Cite This Page — Counsel Stack

Bluebook (online)
932 S.W.2d 935, 1996 Tenn. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kesterson-foods-v-scott-tennctapp-1996.