Weiss v. Weiss

2008 WY 30, 178 P.3d 1091, 2008 Wyo. LEXIS 33, 2008 WL 735276
CourtWyoming Supreme Court
DecidedMarch 20, 2008
DocketNo. S-07-0117
StatusPublished
Cited by8 cases

This text of 2008 WY 30 (Weiss v. Weiss) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiss v. Weiss, 2008 WY 30, 178 P.3d 1091, 2008 Wyo. LEXIS 33, 2008 WL 735276 (Wyo. 2008).

Opinion

HILL, Justice.

[V1] Appellants, Neil M. Weiss, Sam Jay Weiss, and Stan L. Weiss (hereafter “Appellants”) seek review of an order of the district court entitled “Final Order Approving Plan for Winding Up and Distribution of the Assets of the Weiss Limited Partnership.” Ap-pellees, Melvin J. Weiss, Morris Weiss, and Johanna Weiss Richards (hereafter “Appel-lees”) contend that the district court’s order should be affirmed as the only practical solution to what has been an insoluble problem for this family. Appellants contend that the General Partner is also a party, but no brief was filed by the General Partner. The Receiver, who was appointed by the district court on July 14, 2006, to manage the partnership, in the absence of the six partners’ ability to reach any sort of agreement about managing the partnership, is not a party to these proceedings. The Weiss Limited Partnership was included in the caption of this case in the district court and was represented by counsel throughout the proceedings below. However, it does not appear in the caption of this appeal, and it has made no appearance in this Court. We will affirm the district court’s order.

ISSUES

[¶ 2] Appellants raise these issues:

I. Whether a district court can distribute partnership assets in a manner contrary to the partnership agreement.
II. Where, as part of a plan for dissolution in accordance with the Partnership Agreement, the General Partner resolves to make a liquidating distribution, in kind, to the withdrawing limited partner, does the district court have authority to “enjoin” the plan and resolution without findings and evidence to support the injunction.

Appellees Melvin J. Weiss and Morris Weiss raise these issues:

I. Does Wyoming law allow a district court, sitting in equity, to distribute the assets of a dissolved limited partnership in accordance with equitable principles and in the most efficient and economical fashion in order to avoid a wasting of assets and additional delay and cost to the parties?
II. May a district court, presiding over the judicial dissolution of a limited partnership in which the existence of the general [1093]*1093partner is in dispute, enjoin an effort by less than the majority of the limited partners to distribute assets of the limited partnership without the agreement of the other limited partners?

Appellee Johanna Weiss Richards submitted a separate brief but she essentially joins in the issues raised by the other Appellees as set out above.

FACTS AND PROCEEDINGS

[¶ 3] A logical point of embarkation here is to recognize that the six limited partners named above each own a l/6th interest in the limited partnership. The only significant asset of the partnership is a parcel of real property approximately 66 acres in size. It consists of mostly undeveloped land in Rock Springs. Harry Weiss, the father of the parties to this appeal, first created a Trust dated May 21, 1982. Although we do not know much about that Trust, we do know that the real property at issue here was an asset of that Trust, and Harry Weiss was the Trustee of that Trust. Harry Weiss also created the Weiss Limited Partnership on December 29, 1982, and he acted as the General Partner during his lifetime. His six children were limited partners in that business organization. Since the death of Harry Weiss on December 23, 2001, the parties have been unable to agreé on how to manage the partnership or what to do with the assets of the partnership. Although Morris Weiss attempted to act as “General Partner” for a time, his actions in that role were one of the circumstances that precipitated this litigation.

[¶ 4] This litigation was initiated on April 11, 2005, by Melvin J. Weiss as an “Application for Judicial Dissolution and Winding Up of Limited Partnership and Complaint for Damages and Accounting.” That pleading alleged that Morris Weiss had failed to properly manage the partnership and that he had actively frustrated the wishes of all other partners to liquidate and distribute the partnership assets. A request to appoint a Receiver was also made by Melvin Weiss and Johanna Weiss Richards.

[¶ 5] On March 28, 2006, a pleading entitled “Motion of Defendant Weiss Limited Partnership to Dismiss on Grounds of Mootness and Lack of Jurisdiction and Opposition to Motion for Appointment of Receiver” was filed on behalf of the partnership created by Harry Weiss, the Trust created by Harry Weiss’ (as successor General Partner to Harry Weiss), and it was signed by the same attorney who now represents the Appellants herein. It alleged that the Trust was the General Partner now that Harris Weiss was dead, and that the General Partner was empowered to sell the assets of the partnership and otherwise conduct the business of the partnership. It went on to provide that the General Partner would make a liquidating distribution to Morris Weiss of the buildings and ground on which his business was located, that the remainder of the real estate would be sold and the proceeds distributed to the other partners, and that any disagreements among the partners were required to be resolved by arbitration. Paragraph 21 of the partnership provided: “If any controversy or claim arising out of this Limited Part-, nership Agreement cannot be resolved by the partners, it shall be settled by arbitration in accordance with the rules of the American Arbitration Association then in effect, and judgment on the award may be entered in any court having proper jurisdiction.”

[¶ 6] On July 14, 2006, the district court entered an order appointing the Receiver. That order recited that Melvin Weiss and Johanna Weiss Richards had filed a motion for the appointment of a Receiver and that a hearing was held on that motion. The order spelled out the duties of the Receiver and relieved Morris Weiss as the manager of the Limited Partnership. A point of contention in this appeal, for the Appellants, is the district court’s further order that the “liquidating distribution” to Morris Weiss was enjoined. There is little, if any, documentation of the pleadings leading up to that order in the record on appeal, and the hearing was either not reported or not transcribed and is not included in the record on appeal. However, this order was the document that governed the management of the Weiss Limited Partnership until the entry of the district court’s “final order,” which is set out in detail below. No challenge was made to this order [1094]*1094at the time it was entered. Appellants challenge aspects of it in this appeal, but in both the brief and oral argument, the Appellants argue as their primary focus that the district court’s distribution is erroneous and that the only correct distribution is to the limited partners as tenants in common. The Receiver has been in place for some time and has managed the partnership during that time (and has continued to do so during the pen-dency of this appeal) and that can not, as a practical matter, be undone in the context of this appeal as it is presented to the Court in the parties’ papers.

[¶7] Melvin Weiss amended his application for dissolution of the limited partnership on October 13, 2006. That application was, in large part, a repeat of his original but it added a claim for breach of contract on the part of Morris, Stan, Sam, and Neil for their failure to abide by the partners’ original agreement for the dissolution of the partnership.

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Bluebook (online)
2008 WY 30, 178 P.3d 1091, 2008 Wyo. LEXIS 33, 2008 WL 735276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-weiss-wyo-2008.