University of Vermont AAHS

Duckson v. Cargill

Arkansas Court of Appeals
UNPUBLISHED, 2000 WL 284074
March 15, 2000

Summary of Opinion

Plaintiff Duckson and defendant Cargill entered into the horse business and purchased 40 acres on which horses were kept. They were not married to each other; when their romance ended so did their horse business. Plaintiff brought this lawsuit for division of the property they had accumulated together.

Plaintiff claimed that the 40 acre tract was an asset of the horse partnership they formed, but the trial court found that the tract was not a partnership asset. The trial court awarded plaintiff most of the assets, but divided the 40 acres 50-50. In this opinion, the Court of Appeals agrees with that decision and orders the real estate divided in that fashion.

Text of Opinion

Appellant Paul Duckson appeals from that part of an order granting appellee's petition for partition of real property. For reversal, appellant contends that the chancellor erred in determining that the property was not an asset of the parties' partnership and that the chancellor erred by not giving him credit for the improvements he made to the property. We affirm.

Appellant and appellee, Sharon Cargill, began living together in late 1992 or early 1993. The property that is the subject of this appeal consists of roughly forty acres and was purchased by them in January 1994. The deed reflects that the property was titled in both their names as husband and wife, with appellee shown as having the last name "Duckson," even though they had never married. The parties' relationship soured, and they parted company in 1995. Appellant later brought this action to dissolve what he alleged to be a partnership that was formed between them for the purpose of raising horses. He claimed that the real property was an asset of the partnership and asked the court to recognize his contribution toward the purchase of the property. In his complaint, appellant also asked that appellee be required to repay various loans he had made to her. Appellee counterclaimed asking for partition of the land, alleging that she was half-owner of the property.

At trial, appellant testified that he and appellee were fifty-fifty partners in a horse-raising venture. He said that the arrangement was that he purchased the mares for breeding, that appellee was to care for and raise the horses, and that appellee was to receive half the profits from the sale of the colts. Appellant testified that the land was bought as a place to keep the horses and that he, alone, put up the money for the purchase of the property. He said that appellee was to pay half the purchase price for the land out of her share of the profits. He presented the testimony of two of his employees who testified that they overheard the parties talking about the partnership in reference to their raising colts on "the forty."

Appellee testified that they were in the business of raising horses together. She said, however, that there was no agreement for her to contribute any money toward the purchase of the property. She said that appellant made a gift of the property to her and that the land was to be half hers as a place to raise horses.

The chancellor ruled that there was a partnership relationship with regard to the raising of horses, and appellant was awarded the remaining livestock based on a finding that appellee had not contributed her share toward the purchase of the animals. The chancellor also granted appellant judgment against appellee for the loans he had made appellee. The chancellor found, however, that the parties owned the real property as tenants in common and granted appellee's request for partition.

Appellant first argues that the chancellor erred by not finding that the real property was an asset of the partnership. He bases this argument on the strength of his own testimony and that of his witnesses.

The intent of the parties generally determines what property will be considered partnership property as distinguished from separate property, and ascertaining that intent is a question of fact. 59A Am.Jur.2d Partnership 354. Chancery cases are reviewed de novo on appeal, but we will not disturb the chancellor's findings of fact unless they are clearly against the preponderance of the evidence. Jones v. Ray, 54 Ark.App. 336, 925 S.W.2d 805 (1996). Where testimony conflicts, the issue of credibility is a matter in which this court defers to the chancellor. Rector v. Rector, 58 Ark.App. 132, 947 S.W.2d 389 (1997). The testimony of the parties differed as to whether the property was intended to become an asset of the partnership. The chancellor found appellee's testimony more credible on this point, and thus we cannot say that his decision is clearly erroneous.

Appellant next argues that, in the event we affirm the chancellor's finding that the property was owned as tenants in common, he should be given credit for the improvements he made to the property. Appellant recognizes that a co-owner who makes improvements is generally entitled to the resulting increase in value of the property and not the actual costs of the improvements. See Flucht v. Villareal, 28 Ark.App. 1, 770 S.W.2d 187 (1989). At trial, however, appellant testified that he spent $11,301.47 in improvements, but he offered no testimony on the enhanced value of the property. He asks us to remand so that the record can be developed on this issue. We decline to do so. Where a case has been once heard upon the evidence or there has been a fair opportunity to present it, we will not usually remand a case solely to give either party an opportunity to produce other evidence. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). Although we have the discretion to send an equity case back for additional proof when there is justification for a deficient record, absent special circumstances, we rarely remand a case simply to develop proof on one phase where that proof could have been offered at the original trial. See Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967).

Affirmed.


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