Fill and Sign the Memorandum Motion Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI       PLAINTIFF VS. CAUSE NO.             , Individually, and       DEFENDANT REBUTTAL MEMORANDUM BRIEF OF       SUPPORTING MOTION TO TRANSFER CAUSE TO CHANCERY COURT FACTS On or about             ,       , the Plaintiff/Counter Defendant (hereinafter "       ") and Defendant/Counter plaintiff (hereinafter "       ") entered into a business transaction to do lawn maintenance and landscaping.       had previously operated as a partnership doing business as       .       voluntarily joined into the partnership and paid the sum of $       towards equipment to be used in the business. The two partners discussed operating as a corporation, and further discussed that       would agree at a future date to be negotiated for a sum to be paid for       (       ) of       which was combined into the joint business venture. Since each partner was busy satisfying customers and contracts they agreed to arrive at a fair and equitable sum at some time in the future. The parties did not reduce their agreement to writing although they operated as general partners until             ,       . During       and       ,       ,       discovered that       was diverting and converting partnership receipts to his/her personal use.       and the partnership were not only deprived of the source of revenue converted by       to his/her personal use however, in addition the partnership incurred substantial debts and obligations which       refused to make contribution or assist in the payment of said obligations including operating expenses and tax liabilities.       informed       by letter that the diversion of receipts constituted grounds for termination of the partnership, and notified       that he/she was beginning to wind down the partnership. Thereafter       began to wind down the partnership in accordance with Mississippi Code Section 79 - 12 - 79 (1972). Both       and       entered into lengthy negotiations as to the proper way to settle, account for, and wind down the partnership. Each party was represented by an attorney and their efforts to terminate the partnership in accordance with 79-12-79 are attached hereto as Exhibit "       ".       was represented by       , and       was represented by       . Following the inability of the parties and their respective counsel to negotiate a satisfactory accounting and termination of partnership, including identifying and paying all partnership debts and obligations,       filed a Complaint in the Circuit Court of       County, Mississippi on             ,       , making a litany of allegations against       . At page       of the Complaint sets out: Count VIII. In the alternative, the above and foregoing actions of Defendant       justify this Court's order that       has all rights and remedies defined in Miss. Code Ann. Section 79-12-79 as       was forced out of the partnership with       due to       fraud and misrepresentations. (See Complaint)       filed and answer and counterclaim, and as affirmative defense no. 2 stated: 2. This Court lacks jurisdiction as Plaintiff seeks equitable relief and jurisdiction and venue is properly vested in the Chancery Court of       County, Mississippi.       counterclaim further matches the Plaintiff's request in Count Eight, XLI, wherein       alleges: The above and foregoing actions of       justify this Court's order that       has all rights and remedies defined in Miss. Code Ann. Section 79 - 12 - 79 as       was forced to terminate the partnership due to       broad misrepresentation and misappropriation of partnership profits. (See Answer and Counter-claim, Count Eight, page 16) Further,       has alleged in Count Six, XXXV: The above and foregoing actions of       give       the remedy of "An Accounting" against       for the converted proceeds and/or equipment by       individually and/or       . (See Answer and Counterclaim, Count Six, XXXV, page       ) At page       of the Answer and Counterclaim, Count Six, XXXVI,       asserts:       requests that the Chancellor appoint a Special Master and order an immediate accounting of the general partnership of       and       . THE LAW Both parties have requested that the Court allow them to proceed in accordance with Section 79 - 12 - 79 even though this partnership dispute has been improperly filed by       in the Circuit Court of       County, Mississippi. The Mississippi Uniform Partnership Law, Section 79 - 12 - 1 et. seq. sets out a very specific procedure for dissolution of a partnership. The rules in settling an account between partners after dissolution are set out specifically in Section 70 - 12 - 79, and both parties have elected by their pleadings to follow the Mississippi Partnership Act, and each has specifically pled Section 79 - 12 - 79. Said section is for settling accounts between parties after dissolution. In order to get to Section 79 - 12 - 79 the parties must follow other statutes in the Mississippi Partnership Act, and specifically for judicial dissolution they must follow Section 79 - 12 - 63, which calls for dissolution by decree of court. This section vests jurisdiction to dissolve the partnership in the Chancery Court when a partner has been guilty of such conduct as tends to affect prejudicially the caring on of business or a partner willfully or persistently commits a breach of the partnership agreement or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practical to carry on the business in the partnership with him/her . The statute also calls for "other circumstances that render a judicial dissolution equitable". The Mississippi Constitution at Section 159 vests the Chancery Court with full jurisdiction in all matters of equity. The Mississippi Constitution at Section 161 vests the Chancery Court with jurisdiction concurrent with the Circuit Court of suits involving inquiry into matters of mutual accounts, and specifically states: ...But if the Plaintiff brings a suit in the Circuit Court, that court may, on application of the defendant, transfer the cause to the Chancery Court, if it appears that the accounts to be investigated are mutual and complicated. Therefore, in addition to the statutory vesting of dissolution of a partnership with the Chancery Court in accordance with Section 79 - 12 - 63, Section 161 of the Mississippi Constitution authorizes the transfer of the case to the Chancery Court where the accounts to be investigated are mutual and complicated. The attached correspondence establishes very clearly the mutual obligations of the accounts involved as well as the extreme complexity of the unsettled business arrangement between the partners. Clearly,       has a right to have assistance in the proper winding down and termination of the partnership, including the appointment of a special master to step in and assist in the proper winding down of the business. In the Plaintiff’s Memorandum Brief In opposition To Defendant's Motion To Transfer Cause To Chancery Court, the Plaintiff cites David B. Greer v. Hartman, Harper, Stokes, Knight, P.A.. et al, in the Circuit Court of Greer County, Cause No. 94 - 141 as authority. The Greer case is not applicable to the winding down of a partnership. The Plaintiff in Greer merely requested that he be paid his capitol account of an existing CPA partnership. The account existed of a sum certain, and therefore the initial partnership agreement, the proper procedure for winding down the partnership, and the need for a special master were never pleaded, requested or necessary. Further, there was not request by both parties to the case for the Court to wind down the partnership in accordance with the Mississippi Partnership Act.       cites as authority the City of Starkville v. Thompson, 243 So.2d 54, 55 (Miss. 1971). The Thompson case has no relation to the case at bar in that the Circuit Court improperly granted a default judgment, and the Court held that it was improper for the Chancery Court to attempt to enjoin the Circuit Court. The case did not involve a partnership, did not involve the Mississippi Partnership Act, the dissolution of a partnership, the request for an accounting and appointment of a special master, and is no way related to the issue of transferring a cause of action to the proper court.       next cites Barlow v. Weathersby, 597 So.2d 1288, 1293 (Miss. 1992) for the proposition that the Circuit Court is of general jurisdiction in this case, with authority to hear and dispose of "all claims and counterclaims raised by the pleadings". (See memo, page 3) Barlow at page 1293 does not address the issue of counterclaims as set out in       statement of the law however, Barlow does not involve the Mississippi Partnership Act or partners at all, it does not involve the parties' mutual request to proceed under the Mississippi Partnership Act, and it does not address the parties right to Chancery jurisdiction under the Mississippi Partnership Act and under Section 161 of the Mississippi Constitution.       also cites Dye v. State Ex Rel Hale, 507 So.2d 332, 337 (Miss. 1987) for the same proposition. The Dye case concerned a group of state senators filing suit about the senate rules. As stated above, it did not involve partners that had elected in their pleadings to proceed under the Mississippi Partnership Act or a winding down or dissolution of the partnership affairs.       next cites the case of Hall v. Corbin, 478 So.2d 253,255 (Miss. 1985). The Hall case involved a husband filing a replevin action against the executor of the wife's estate. The case did not involve a partnership nor does it involve both parties in their pleadings electing to proceed under the Mississippi Partnership Act. The case did not involve the request of the appointment of a special master and accounting, and a winding down of the partnership affairs in accordance with Section 79 - 12 - 63, and Section 79 - 12 - 79 of the Mississippi Partnership Act. The Defendant       has attempted in every manner to negotiate a peaceful dissolution of the partnership and a proper winding down of its affairs without success. In fact, following the truthful responses to interrogatories in this case,       instigated an individual named       to file criminal charges against       .       allegedly told       that the partnership property sold during the winding down of partnership affairs was "stolen equipment".       has refused to inform the Court that for many months he/she has recognized the existence of the partnership and participated in a partnership however, filed his/her initial pleadings in this cause attempting to lead the Court to believe that the parties operated as a corporation. It is in the best interest of both parties that this matter be transferred in accordance with the Mississippi Partnership Act and Section 161 of the Mississippi Constitution to the Chancery Court, and for the Court to appoint a special master to take charge of the situation to require the parties to make a full and detailed accounting, and to proceed with the immediate winding down of the partnership payment of debts in full dissolution in accordance with the Mississippi Partnership Act. In conclusion,       requests that the cause be transferred to Chancery Court, of the immediate appointment of a special master, an accounting, and further proceedings in equity and law as the Court deems just and proper. RESPECTFULLY SUBMITTED this the       day of       , 20       . ________________________________       , Defendant/Counter Plaintiff ________________________________ Attorney for       Defendant/Counter plaintiff Of counsel:                         Telephone:       MSB #       Attorney for       CERTIFICATE OF SERVICE This is to certify that I,       Attorney for Plaintiff, have this day mailed, by United States mail, postage prepaid, a copy of the above and foregoing REBUTTAL MEMORANDUM BRIEF OF       SUPPORTING MOTION TO TRANSFER CAUSE TO CHANCERY COURT to:       Dated this the       day of       , 20       . __________________________________