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Cassel v. Sullivan12/9/1999
CERTIFIED FOR PUBLICATION
In this procedurally involved case, Robert M. Cassel twice obtained judgment in the amount of $305,690 plus interest and attorney fees in his action for an accounting, valuation and payment of his interest in the Sullivan, Roche & Johnson partnership from which he withdrew in September 1994. Cassel first secured judgment by obtaining an entry of default against Sullivan, Roche & Johnson (the partnership), then by proving up his damages and obtaining a default judgment on April 14, 1998. This default judgment (but not the default itself) was thereafter set aside because Cassel had not served a statement of damages on the partnership. A second "prove-up" hearing was held, in which the partnership fully participated by presenting its own witnesses and evidence, and cross-examining Cassel's witnesses. This hearing resulted in the November 12, 1998, entry of a second judgment against the partnership for $305,690, the same principal amount as the original vacated default judgment.
The partnership appeals, claiming that the default entered against it, from which both judgments ultimately flowed, was void for failure to serve a statement of damages and should have been vacated by the court. Cassel cross-appeals, contending the trial court's order setting aside the first default judgment entered after a prove-up hearing was erroneous, because in this action to determine a former partner's partnership interest, no statement of damages was required.
We hold that the default entered against the partnership, followed by the first prove-up hearing and the April 14, 1998, default judgment were entirely proper without the necessity of service of a statement of damages on the defaulting defendant. Thus, the trial court erred in setting aside the first default judgment. We sustain Cassel's cross-appeal by reversing the trial court's order setting aside the first default judgment. Because that judgment should have remained effective and is now reinstated, we direct the second judgment be vacated. Facts and Procedural History
In April 1990 Cassel joined the Sullivan, Roche & Johnson law partnership. The terms of the partnership were set forth in a document entitled "General Partnership Agreement" which was a comprehensive document containing the partners' agreements with respect to the general partnership, including the precise manner in which a withdrawing partner's financial interest in the partnership would be calculated and paid. Cassel withdrew from the partnership in September 1994. In July 1996 he filed an action against several of his former partners and the partnership itself for an accounting and valuation of his interest in the partnership on the date of his withdrawal, and for judgment against the partnership for the full value of that interest. In his action Cassel alleged that he had made requests of his former partners for an accounting and settlement of his interest, but that they had refused to comply. He further alleged that the defendants were in possession of the essential account books and other financial information needed to ascertain the value of his interest in the partnership. The complaint asked for a specific monetary award.
The partnership did not respond to the complaint, and Cassel obtained the entry of its default on January 28, 1997. There followed a default judgment prove-up hearing before a Judge pro tem, who determined that the value of Cassel's interest in the partnership on the date of his withdrawal was $305,690. She awarded him this amount, plus $5,000 in attorney fees and interest from the time of his withdrawal from the partnership. Thereafter, the partnership moved to set aside the default ju
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