Kuhl v. Garner

894 P.2d 525, 134 Or. App. 185, 1995 Ore. App. LEXIS 678
Court of Appeals of Oregon·Decided April 26, 1995·No. 91-755; CA A80895·Published·Cited by 2 cases

Opinion

BUTTLER, S. J.

Plaintiffs, husband and wife, filed this action for an accounting of a partnership that they claim existed between them and defendants, for its dissolution and for the distribution of its assets. Defendants appeal from a judgment for plaintiffs determining that there was a partnership and ordering defendants to render an accounting, following which the partnership is to be dissolved and the assets divided equally between plaintiffs and defendants.1 Defendants contend that there was no partnership, but, even if there was one, its terms were different from what plaintiffs claim. Although we review de novo, ORS 19.125(3), we defer to the trial court’s findings that turn on the credibility of witnesses. Oshatz v. Goltz, 55 Or App 173, 637 P2d 628 (1981).

Plaintiffs became acquainted with defendant Les Garner2 in 1978 when he employed plaintiff Sandra Kuhl in his real estate brokerage firm near Fresno, California. Sandra became impressed with and respected defendant’s skills as an appraiser, real estate broker and business man. Plaintiff John Kuhl was a machinist. In 1983, plaintiffs moved to Milton-Freewater where they operated a machine shop in partnership with another couple. By 1988, plaintiffs concluded that that business could not support two families and decided to sell their interest to their partners. They began looking for other opportunities and became interested in investing in real estate in Baker City that they could fix up and rent.

Because of her respect for defendant’s business acumen, Sandra called him and explained what she and John were considering and asked his advice. The conversation aroused defendant’s interest, and he said he would come up to discuss the prospects with them and look at some properties. They met in Milton-Freewater on July 3, 1988, and the next day they went to Baker City to look at some properties. Together, they located three promising properties, two of which were not habitable but were developable; that is, they [188]*188needed substantial repair and renovation. Defendant took over the negotiations, and told the real estate agent that they would take title in the name of “K and G Properties (John and Sandra Kuhl and Les and Debra Garner).” Defendant provided the money for the down payments.

That is the way it was done with respect to those three properties, and the parties agree that they had formed a partnership at that time. However, they disagree as to the terms of the partnership. They agree that defendants were to put up the money for the acquisition of properties and that plaintiffs were to do whatever work was necessary to make the properties rentable, maintain them, obtain tenants, collect the rents and generally run the partnership locally. Defendant would remain in California and provide his expertise and money to acquire additional properties. It was anticipated that the rents would service the debt. They also agree that plaintiffs would not be paid for their work and that the properties would be sold in 10 years, which is when defendant planned to retire. Plaintiffs contend that, at that time, they and defendants would each receive one-half of the proceeds after payment of the indebtedness; until that time, no profits were to be distributed.

Defendant, however, testified that plaintiffs were to be credited with $6 per hour for John’s work, and that until his credit equalled the amount of money that defendants had invested, plaintiffs would not be entitled to a share of any profits realized before the sale of the properties at the end of 10 years. However, he did not clearly contradict plaintiffs’ testimony that the net sales proceeds were to be split equally after liquidation of the properties when the partnership terminated, without attempting to balance defendants’ cash investment against hours worked by plaintiffs. Defendant did not say that John was to keep a record of his time so that a determination could be made as to the percentage of the net proceeds, if any, to which plaintiffs would be entitled when the partnership was dissolved; his testimony was limited to a division of rents.

Although John did keep a record of some of his time for about 10 months, he said that he did not think it important, and he never submitted the records to defendant, and defendant never asked whether John was keeping time [189]*189records until he requested them in this lawsuit. Among other things, defendant referred only to John’s time, whereas Sandra also performed services for the partnership by either finding, or participating in finding, properties for the partnership and, in at least one instance, arranging a loan to the partnership. Both plaintiffs testified that the time that they devoted to partnership matters was not relevant; their contribution was to perform all of the management functions relating to the properties in Baker City while defendant remained in California and that no dollar value was ever placed on those services.

The parties had anticipated that John would obtain other employment, but he was unable to find a job utilizing his training as a machinist. His effort to establish a business as a process server and investigator met with little success. Much of his time was devoted initially to the restoration and repair of the partnership properties and later to maintaining them, obtaining tenants, collecting rents, making deposits, paying bills and making purchases relating to the partnership properties.

When plaintiffs moved from Milton-Freewater to Baker City, they had substantial personal debts. Although Sandra had obtained outside employment at the minimum wage in Baker City, their financial position worsened. In April of 1989, they consulted an attorney about bankruptcy. They were advised that, in order to protect defendant, they should convey their interest in the three partnership properties to defendants, wait three months and then file their bankruptcy petition. Although the deeds were not prepared and delivered to defendants until June, plaintiffs advised defendants of the situation in May 1989, and delivered the partnership records to him. At that time, plaintiffs considered the first partnership to have ended. Their bankruptcy petition was filed in September 1989.

Between May and September 1989, defendant purchased five other developable properties in Baker City, many of which plaintiffs had found for him. He told John that he would pay him $6 per hour to continue the services that he had been performing before. Given their financial situation, the offer was accepted to help them get by for the time being. During that fall, defendant and plaintiffs spent three days [190]*190looking at more developable properties in Baker City. According to plaintiffs, in October 1989, while the purchase of four of those properties was pending, defendant told them that their bankruptcy meant nothing to him, and that they would continue their partnership on the same terms as before, except that he would pay John $6 per hour out of partnership money with the understanding that he would not request compensation for all of the time that he worked and they would not bill for time spent looking for properties. He said that their time was “going to go towards” their half, regardless of the time they spent. Plaintiffs agreed and claim that the partnership was recreated at that time.

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Kuhl v. Garner, 894 P.2d 525, 134 Or. App. 185, 1995 Ore. App. LEXIS 678 (Or. Ct. App. 1995).

894 P.2d 525 (Kuhl v. Garner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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