Morris v. Goldsmith, No. S1559-02 CnC (Katz, J., Jan. 27, 2004)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                          SUPERIOR COURT
Chittenden County, ss.:                   Docket No. S1559-02



DAN MORRIS

v.

J. GRAHAM GOLDSMITH



                                   ENTRY

        The issue before us is whether an action for the final accounting of a
partnership dissolution sounds in equity or law. Plaintiff has attempted to
amend his claims so that they sound strictly in equity within the bounds of
Union Bank v. Jones, 138 Vt. 115, 125 (1980). Accountings, however,
have not historically sounded strictly in equity. Williams v. Collier, 32 F.
Supp. 321, 324 (D.C. Pa. 1940) (noting that suits for accounting
traditionally originated in the common law action of account-render).
Since the twin cases of Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478–79
(1962), and Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959), courts
have focused less on the historical sources in exchange for a closer
examination of the nature of the underlying proceeding and remedy. See,
e.g., In re Archambault, 147 Vt. 649 (1986). While Union Bank is correct
that accountings for contested partnership sound in equity, it and its
antecedents reflect partnership dissolutions with material assets to be
allocated. In the present case, plaintiff seeks money, plain and simple.
Along with the accounting, he seeks money from a breach of fiduciary duty
and of good faith. These claims while pled under the form of accounting
and equity are really legal rights. Dairy Queen, 369 U.S. at 477–78.
Plaintiff does not seek the material assets of the partnership as indeed it
does not appear to have any. It is, therefore, well within the acumen of a
jury to make such a finding. Moreover, it remains defendant’s right to have
a jury make this finding as damages are a remedy granted under law.

      Defendant’s demand for a jury trial is granted.



      Dated at Burlington, Vermont________________, 2004.




                                         ________________________
                                         Judge
