Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge, Super. Ct. No. CV50829.
Michael Weisberg for Defendant, Cross-complainant and Appellant.
Law Office of Thomas P. Hogan and Thomas P. Hogan for Plaintiff, Cross-defendant and Respondent.
OPINION
DAWSON, J.
A dispute between two partners resulted in the trial court awarding all of the partnership’s net income to one of the partners. The other partner—the appellant here—claims the net income should have been divided into equal shares, and the trial court’s failure to do so constituted legal error. Appellant’s claim of error is based on the partnership agreement, which stated that all gains and profits from the partnership’s business would be divided into 50 percent shares.
Respondent contends (1) appellant forfeited the purported error by failing to object in the trial court, (2) the judgment must stand under the doctrine of implied findings of fact, and (3) the trial court’s award falls within the bounds of the discretion given to a court overseeing an accounting.
Respondent phrased her argument using the term “waiver.” Based on the California Supreme Court’s continued attempts to encourage courts and practitioners to use the correct definitions of the terms “waiver” and “forfeiture” (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 1; People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9), our discussion uses the term “forfeiture” to refer to this issue. Forfeiture results from the failure to make a timely assertion of a right. (People v. Simon, supra, at p. 1097, fn. 9.) Waiver is the intentional relinquishment or abandonment of a known right or privilege. (Ibid.)
Based on these arguments, respondent contends the appeal is frivolous and has filed a motion to dismiss the appeal and a motion for sanctions.
We conclude that (1) appellant’s claim of legal error was not forfeited because appellant was not required to raise that type of error in the trial court, (2) the doctrine of implied findings of fact does not justify affirming the judgment because respondent has not identified any implied findings that (a) are supported by substantial evidence and (b) provide a legally cognizable basis for the result reached in the judgment (i.e., awarding all of the profits to one partner), and (3) the discretion granted to a trial court that orders equitable relief in the form of an accounting does not extend so far as to permit that court to rewrite the provision of the partnership agreement that establishes how profits are to be divided between the partners.
Accordingly, the judgment will be modified to reflect that appellant is liable to respondent for one half of the partnership’s net income. As so modified, the judgment will be affirmed.
FACTS AND PROCEEDINGS
Appellant Sara Cooper and respondent Cheryl McIntire entered a partnership agreement on July 16, 2003, to carry on a business as casting directors. The partnership agreement was set forth on a three-page document that they both signed. Among other things, the partnership agreement provided that all gains and profits that arose out of the business would be divided between them on a 50-50 basis and losses would be borne in like proportion.
The partnership agreement also stated that “there shall be had and kept at all times during the continuance of their Copartnership, perfect, just and true books of account wherein each of the said Copartners shall enter and set down all money by them or either of them received, paid, laid out and expended in an about said business .…” The partnership agreement also stated that the copartners agreed to provide each other with an accounting of profits and losses as well as receipts and disbursements at least once per year.
Initially the partnership was called Maverick (or Maverickk) Entertainment, and the name was later changed to Cooper McIntire Casting.
McIntire became concerned that Cooper was conducting partnership business for her own benefit, was commingling partnership funds with her personal funds, and was using partnership funds to pay personal expenses. On August 4, 2004, an attorney representing McIntire sent a letter demanding dissolution of the partnership forthwith and access to books and records of the partnership’s income and expenses.
McIntire’s demand was not satisfied and she filed a complaint on September 27, 2004, that (1) requested an accounting and (2) alleged claims for breach of contract, breach of fiduciary duty, conversion of partnership assets, actual fraud, constructive fraud, negligence, and defamation of character.
In February 2005, Cooper answered the complaint by filing a general denial and also filed a cross-complaint that alleged claims for breach of contract, breach of fiduciary duty and an accounting.
Also in February 2005, the parties hired Emily A. Bologna, a certified public accountant, to prepare an income and expense statement for the partnership.
Based on information delivered to Bologna by Cooper, Bologna prepared a statement of income and expenses of the partnership for the period of June 12, 2003, through May 31, 2005. That statement became exhibit 4 at the trial. The statement listed total income as $31,698.26, total expenses as $17,661.10, and income minus expenses as $14,037.16.
The trial court’s tentative decision erroneously refers to this date as “May 31, 2004.”
This accounting did not resolve the dispute. Cooper disagreed with the results. McIntire requested Cooper to provide additional information to Bologna. Approximately two weeks before trial, Bologna received additional information from Cooper and was surprised that Cooper was claiming expenses of $26,486 instead of the $17,661 of expenses reflected in exhibit 4.
Also, Cooper prepared an accounting of the partnership business for the period of July 16, 2003, to August 31, 2004. That document became exhibit 19 at the trial. The income statement in that accounting asserted that income was $29,788.18, expenses were $28,185.97, and net income was $1,602.21.
A court trial was held on October 26, 2005, and a tentative decision was filed in February 2006. The tentative decision stated that (1) McIntire had proven her claims for breach of contract and breach of fiduciary duty, (2) Cooper failed to prove her cross-complaint, and (3) McIntire failed to prove her causes of action for conversion, fraud, constructive fraud, negligence, and defamation.
With respect to each party’s claim for an accounting, the trial court found that McIntire had nothing to account for, Cooper handled all of the partnership money and kept records, and therefore McIntire was entitled to an accounting from Cooper.
The trial court stated that the question whether McIntire had been damaged by Cooper’s breach of contract and breach of fiduciary duty depended on the outcome of an accurate and full accounting. The trial court directed Cooper to (1) prepare and deliver a revised accounting, and (2) deliver documentation for (a) each entry in the accounting, (b) each transaction in which partnership money was commingled with her personal funds, and (c) all credits that she claimed to offset personal expenses. The trial court reserved jurisdiction on the issue of damages until the revised accounting had been rendered by Cooper.
The tentative decision also addressed how certain scenarios would be dealt with in the future. The provision that addressed the scenario relevant to this appeal stated:
“10. In the event that [Cooper] fails to deliver the revised account and documentation as ordered herein, [McIntire] shall have judgment based on Exhibit No. 14.”
We assume this reference contains a typo and the trial court meant to refer to exhibit 4, the statement of income and expenses of the partnership for the period of June 12, 2003, through May 31, 2005. That exhibit listed income minus expenses as $14,037.16.
McIntire filed timely objections to the tentative decision and requested the court to adopt “the correct income figure per [Bologna] of $25,386.00.” To support this request, McIntire asserted Bologna testified at trial to adjustments that “resulted in a net income of the partnership of $25,386 [citation], of which one-half or $12,693.00 would be attributable to [McIntire] per the partnership agreement.”
On March 3, 2006, the trial court sustained McIntire’s objection that the tentative decision incorrectly quoted Bologna’s determination of the partnership’s net income. To correct the tentative decision, the trial court made two changes. First, certain lines of the tentative decision were amended to read: “Ms. Bologna found that the partnership made a net profit before taxes of $25,386 after adjustments testified to by Ms. Bologna.” Second, the language in paragraph 10 of the order that had stated “[McIntire] shall have judgment based on Exhibit No. 14” was revised to read that “[McIntire] shall have judgment in the sum of $25,386.”
The dispute on appeal can be traced to this revised language in paragraph 10. In effect, Cooper is arguing that the phrase “in the sum of” really meant “based on a net income of.” This interpretation, though not literal, is reasonable because it is consistent with both (1) the partnership agreement and (2) McIntire’s objection to the tentative decision that explicitly asserted one half of the $25,386 was attributable to her.
On the same day that it filed its rulings on McIntire’s objections to the tentative decision, the trial court filed an interim judgment that contained the terms set forth in the tentative decision, as modified by its rulings on McIntire’s objections. For example, the interim judgment, like the tentative decision, included a finding that the term of the partnership was July 16, 2003, to August 4, 2004.
On April 12, 2006, Cooper filed a revised accounting for the period of July 16, 2003, to August 31, 2004, to comply with the trial court’s order in the interim judgment. The income statement in the accounting asserted that the partnership’s income was $26,465.18, its expenses were $20,894.10, and its net income was $5,571.08.
McIntire filed objections to Cooper’s revised accounting and requested a hearing. McIntire’s objections include a declaration of Bologna dated May 25, 2006, that stated the revised accounting was not adequately substantiated, did not meet guidelines of generally accepted accounting principles, and lacked documentation as required by the interim judgment. Bologna’s declaration also stated it “reaffirm[ed] the net income testified to at trial after adjustments of $25,386.00 as proper, and true and correct.”
Cooper responded to McIntire’s objections to the revised accounting by contending (1) McIntire’s objections and the ground for each objection were not stated with sufficient specificity, (2) Cooper was given no opportunity to examine Bologna about the assertions made in Bologna’s declaration, and (3) Cooper’s revised accounting had followed generally accepted accounting principles.
On June 29, 2006, the superior court issued an order that continued the hearing on McIntire’s objections to the revised accounting from July 6, 2006, until November 1, 2006. At this point, it appears that the judge who conducted the trial and issued both the tentative decision and the interim judgment had retired and the case had been reassigned to another judge.
McIntire filed a brief before the hearing on her objections to Cooper’s revised accounting. The brief asserted that McIntire was entitled to “a. One-half of the partnership net income of $25,386.00; [¶] b. Partnership net income from August 2004 to present date; [¶] c. An accounting of partnership income from August 2004 to July 16, 2005, as the partnership did not terminate per the partnership agreement until 7/16/05; [¶] d. Damages for a forensic accounting expert; [¶] e. Attorney fees and costs as the prevailing party.”
On November 1, 2006, the trial court ordered that, in lieu of taking testimony, declarations of experts regarding the validity of Cooper’s revised accounting should be submitted to the court. The trial court’s minute order set a schedule for the submission of declarations and responding declarations and stated that the matter would be deemed submitted on the deadline for filing the responding declarations. In addition, the minute order stated that Cooper’s attorney could “state his position regarding the judgment amount of $25,386.00 as to whether or not that is a gross or net figure. If the Court were to determine that the figure is gross rather than net, [McIntire’s attorney] will be given an opportunity to file additional declarations.”
Each party submitted declarations as ordered by the trial court. McIntire submitted declarations of Bologna. Cooper submitted declarations of E. Clay Maddox, a certified public accountant.
Bologna’s November 15, 2006, declaration stated: “24. For the foregoing reasons, the net income adopted by the court $25,386.00 is proper, true and correct. [¶] 25. [McIntire] is entitled to one-half of the partnership net income of $25,386.00.”
Bologna’s November 29, 2006, declaration stated: “I stand by my original conclusion that the net income adopted by the court as $25,386.00 is proper, true and correct.”
The trial court reviewed the declarations submitted and, on February 21, 2007, issued a supplemental judgment. In the supplemental judgment, the trial court specifically identified “the amount of $25,386” included in the interim judgment as “the amount of the net profit of the partnership determined by the Court based upon the testimony of [McIntire]’s accounting expert, Emily Balogna, C.P.A.” The net profit amount played a role in how the trial court framed the question before it:
“The issue for determination by this Court is whether the revised accounting is adequate and whether [Cooper] is therefore entitled to credits against the amount of the net profit previously determined by this Court.”
The supplement judgment included a specific finding that Cooper’s revised accounting was incomplete and defective in all of the respects outlined in Bologna’s declaration. Based on that finding, among other things, the trial court (1) struck Cooper’s revised accounting, (2) stated McIntire “shall have judgment in the amount of $25,386,” (3) denied McIntire’s request for attorney fees, and (4) ordered Cooper to pay McIntire $2,565 for the expense of Bologna evaluating the information submitted by Cooper.
A notice of entry of judgment was filed. Cooper filed no postjudgment motion that asserted the trial court erred in awarding 100 percent, instead of 50 percent, of the partnership’s net profit to McIntire. Instead, Cooper filed a notice of appeal.
DISCUSSION
I. Standard of Review
Generally, appellate courts independently review questions of law and apply the substantial evidence standard to a superior court’s findings on questions of fact. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801 [questions of law are subject to independent review]; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [substantial evidence rule].)
After the bench trial in this matter, Cooper did not object to the trial court’s tentative decision and did not file any motion objecting to the adequacy of the findings of fact made by the trial court. Consequently, for purposes of this appeal, all intendments favor the ruling below and this court must infer every finding of fact supporting the judgment, provided that the finding is supported by substantial evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) This principle is known as the doctrine of implied findings. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-60 (Fladeboe); SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 [implied finding of fact must be supported by substantial evidence, otherwise appellate court may not infer it exists].)
The substantial evidence standard for review has been described by our Supreme Court as follows:
“Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that … the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. (Crawford v. Southern Pacific Co.[, supra,] 3 Cal.2d 427, 429.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Evidence is “substantial” for purposes of this standard of review if it is “of ‘ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value’ .… [Citations.]” (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 507.)
II. Cooper’s Argument of Legal Error
Cooper’s argument that the trial court committed legal error is straightforward. First, Cooper asserts the undisputed facts establish that the partnership agreement provided that the partnership’s profits would be divided equally between the two partners. Second, Cooper asserts that the trial court explicitly found that the partnership’s net income was $25,386. Third, Cooper concludes that under the terms of the partnership agreement she is liable to McIntire only for one-half of the partnership’s net income—that is, $12,693. Cooper supports her conclusion about how the terms of the partnership agreement should be applied to the finding regarding the amount of net income by arguing, among other things, that this is exactly the position taken by (1) Bologna in her November 15, 2005, declaration and (2) McIntire in her October 2006 hearing brief.
Specifically, McIntire’s October 2006 hearing brief asserted that she was entitled to “One-half of the partnership net income of $25,386.00.” McIntire made the same assertion on page 2 of her February 2006 objection to tentative decision.
We conclude that Cooper has described accurately the terms of the partnership agreement that govern the division of profits and the finding of the trial court regarding the net income of the partnership. Therefore, we conclude as a matter of law that, insofar as the partnership agreement is concerned, McIntire is entitled only to $12,693, which is one-half the partnership’s net income. Based on this conclusion, we next consider whether there are other legal grounds that support the trial court’s decision to award all of the partnership’s net income to McIntire.
III. McIntire’s Arguments in Support of the Judgment
A. Forfeiture
1. Type of error raised on appeal
McIntire contends that the purported deficiency in the trial court’s decision is reversible error only if Cooper timely brought the deficiency to the trial court’s attention. Because Cooper did not raise the deficiency in the trial court, McIntire argues that Cooper forfeited the defect. (See fn. 1, ante.)
Our analysis of whether Cooper forfeited her claim of error begins by determining what type of error Cooper is raising on appeal. Cooper is not claiming that the trial court erred by (1) failing to make an explicit finding on an issue of material fact or (2) incorrectly making a finding of fact that was not supported by substantial evidence. Furthermore, Cooper is not claiming the trial court failed to follow correct procedures. Instead, Cooper’s claim of error requires the application of an unambiguous provision of the partnership agreement to facts that are no longer in dispute. (Cf. Essex Ins. Co. v. City of Bakersfield (2007) 154 Cal.App.4th 696, 703-704 [where material facts are undisputed, interpretation of insurance policy is solely a question of law]; Templeton Development Corp. v. Superior Court (2006) 144 Cal.App.4th 1073, 1080 [interpretation of written contract where surrounding circumstances were undisputed presented a question of law].) We conclude that the application of an unambiguous agreement to divide partnership profits equally to the explicit finding of fact that the partnership’s net income was $25,386 presents a question of law. Therefore, we conclude that Cooper is claiming the trial court committed legal error in deciding the merits of the case.
Furthermore, it is well established that a conclusion drawn from facts previously found cannot stand if the specific findings upon which the conclusion is based do not support it. (Garrison v. Edward Brown & Sons (1944) 25 Cal.2d 473, 478.)
2. Necessity for an objection to the tentative decision
The next part of our analysis of McIntire’s forfeiture argument addresses whether Cooper forfeited the purported legal error by failing to object to the tentative decision.
We conclude Cooper was not required to make an objection to the tentative decision because the tentative decision did not contain the purported error.
Furthermore, even if the tentative decision had contained the purported legal error, Cooper would not have been required to object to avoid forfeiture. Instead, the following principle would have applied: “[A] party does not waive objections to legal errors appearing on the face of the statement of decision by failing to respond to it. (United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 186.)” (Fladeboe, supra, 150 Cal.App.4th at p. 59.) In Fladeboe, the court discussed (1) the scope of the doctrine of implied findings and (2) how the doctrine related to claims that the trial court erred by failing to make factual findings necessary on an issue. (Id. at pp. 58-60.) The court contrasted these errors of omission (the doctrine of implied findings applies) to legal errors (the doctrine does not apply). Because the type of error Cooper is asserting on appeal is a legal error, the concept of forfeiture associated with the doctrine of implied findings does not apply.
3. Necessity for an objection to the interim judgment
Next, we consider whether Cooper forfeited the purported legal error by failing to object to the interim judgment. The language that is the source of the error asserted in this appeal first appeared in the interim judgment. Specifically, paragraph 10 of the order in the interim judgment stated that, if certain contingencies occurred, “[McIntire] shall have judgment in the sum of $25,386.”
After this language appeared in the interim judgment, McIntire still took the position that she was entitled to one-half of the partnership net income of $25,386, not all of that amount. Thus, until the supplemental judgment was filed, it appears that both parties interpreted paragraph 10 of the order in the interim judgment to mean that the damages ultimately awarded would be based on a net income of $25,386. They were not interpreting that paragraph literally to mean McIntire would be awarded the entire amount. (See fn. 5, ante.) Consequently, we conclude Cooper was not required to make an objection to the interim judgment based on the possibility that the judgment ultimately rendered (1) might be based on an interpretation of the interim judgment that was not consistent with the position asserted by McIntire and (2) might contain legal error.
Generally, the relief ordered a plaintiff in an action for an accounting must be consistent with the case made out in the plaintiff’s pleadings. (1 Cal.Jur.3d (2006) Accounts and Accounting, § 98, p. 713.)
4. Necessity for an objection to the supplemental judgment
Lastly, we consider whether Cooper forfeited the purported legal error by failing to object to the supplemental judgment while the matter was still before the trial court. Naturally, those objections only could have been made in postjudgment motions. Because Cooper was not required to object to legal errors contained in the tentative decision to avoid forfeiture (see Fladeboe, supra, 150 Cal.App.4th at p. 59), it follows that she was not required to object to legal errors in the final judgment to preserve those errors for appeal.
B. Implied Findings Support the Judgment
McIntire contends that the appellate court must presume the trial court made all necessary findings of fact to support its judgment where a party has waived a statement of decision. This contention overstates the force of the presumption regarding implied findings. The presumption that an implied finding was made exists only if there is substantial evidence to support the finding. (SFPP v. Burlington Northern & Santa Fe Ry. Co., supra, 121 Cal.App.4th at p. 462 [implied finding of fact must be supported by substantial evidence, otherwise appellate court may not infer it exists]; see People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [under abuse of discretion standard of review, appellate court must accept trial court’s implied findings of fact supported by substantial evidence].)
Often, as a matter of appellate advocacy, a respondent that invokes the doctrine of implied findings will bolster its position by (1) identifying a legal theory that supports the result reached in the judgment, (2) identifying with particularity the implied finding or findings of fact necessary for the application of that legal theory, (3) describing the evidence that supports each implied finding, and (4) providing citations to the pages in the clerk’s transcript and reporter’s transcript that contain the evidence. Where a respondent does not undertake these four steps, it leaves the appellate court in the position of imagining potentially applicable legal theories and searching the record for evidence sufficient to support the implied findings of fact necessary to support one of those theories.
The citation to the evidence in the appellate record is governed by California Rules of Court, rule 8.204(a)(1)(C).
1. One-half of the profit
A potential legal ground or theory that might support the judgment is based on the terms of the partnership agreement. As previously discussed, McIntire was entitled to one-half of the partnership’s profits based on the terms of the partnership agreement. The partnership agreement did not vary the general rule that, unless stated otherwise, partners are entitled to an equal share of partnership profits. (See Corp. Code, § 16401, subd. (b) [each partner entitled to equal share of partnership profits].) If this is the legal theory upon which the judgment is based, it follows that the profit of the partnership was twice the amount awarded. In other words, for this legal theory to support the supplemental judgment, this court must infer that the partnership’s profit was approximately $50,772, which is two times the $25,386 awarded by the trial court.
We may not conclude the trial court made such an implied finding because (1) it directly contradicts the express finding that the partnership’s net income was $25,386, and (2) we have been unable to locate substantial evidence that supports such a large amount of profit.
When an express finding has been made, the appellate court will not infer the trial court made a contradictory implied finding. (See People v. Molina (1994) 25 Cal.App.4th 1038, 1041 [implied findings are deemed made where there are no express findings]; see also Reid v. Moskovitz (1989) 208 Cal.App.3d 29, 32 [appellate court will not infer an implied finding was made by trial court where the record shows the trial court expressly declined to make it].)
Accordingly, we cannot conclude the supplemental judgment is correct based on the legal theory that the amount awarded in fact was only one-half of the partnership’s profits.
2. Penalty for failing to provide a proper accounting
A potential legal theory that might support an award of all of the partnership’s net income to McIntire is that the trial court was empowered to make such an award to penalize Cooper for failing to provide an accounting that complied with the orders contained in the interim judgment.
We reject this legal theory because we have located no California case indicating that a trial court can penalize a party that provides an inadequate accounting. Instead, we have located cases that indicate a trial court faced with inadequate records may resolve certain issues against the partner responsible for keeping those records based on the burden of proof, but the findings made still must be supported by sufficient evidence. (See Hampton v. Rose (1935) 8 Cal.App.2d 447 [failure of a partner to produce evidence that ought to be in his possession creates suspicion but suspicion does not relieve plaintiff of burden of proof; finding that partnership’s gross income for a particular period was $46,028.58 was not supported by sufficient evidence; judgment reversed and remanded for new trial]; see also Matoza v. Matoza (1954) 124 Cal.App.2d 572 [partner, who was in complete charge of business, failed to provide explanation of withdrawals; appellate court rejected that partner’s challenges to trial court’s determinations that certain withdrawals from partnership were personal rather than partnership expenses]; see generally 48 Cal.Jur.3d (2004) Partnership § 152, p. 627.)
The situation presented in this appeal is similar to the situation in Van Ruiten v. Van Ruiten (1969) 268 Cal.App.2d 619, where a partner sought an accounting and the imposition of a constructive trust. In that case, the court addressed whether the evidence was insufficient to support the judgment. (Id. at p. 622.) The court concluded that there was no evidence in the record to support certain of the trial court’s findings regarding a fair rate of return, and the portion of the trial court’s decision based on those findings was manifestly arbitrary. (Id. at p. 627.) Similarly, it appears the decision to award McIntire all of the partnership’s net profits was arbitrary and lacks evidentiary support.
3. Discretion related to an accounting
McIntire contends that the trial court (1) had unfettered discretion to decide the issues, (2) properly determined the revised accounting submitted by Cooper was suspect, (3) rightly struck the revised accounting, and (4) treated the matter as if no revised accounting had been submitted. Based on these contentions, McIntire concludes that the judgment imposed by the second trial judge was along the exact lines ordered by the first trial judge.
We conclude that a trial court does not possess unfettered discretion in determining the amount of damages to award after a party ordered to provide an accounting has failed to provide an adequate accounting. The trial court’s findings of fact must be supported by substantial evidence. (E.g., Van Ruiten v. Van Ruiten, supra, 268 Cal.App.2d 619.) Here, the trial court acted within its authority when it rejected various expenses claimed by Cooper and found the net income of the partnership was $25,386. The flaws in Cooper’s accounting for expenses claimed, however, did not provide a basis for awarding all of the net income to McIntire. The award of $25,386 effectively rewrote the partnership agreement. McIntire has cited, and we are aware of, no authority that grants trial courts the discretion to revise the partners’ agreement regarding the division of profits when one party breaches its obligation to account for money received and expended.
IV. McIntire’s Motions
McIntire filed a motion for sanctions on July 24, 2007, which argued Cooper’s appeal was without merit and brought solely for the purposes of delay and harassment. Because we have ruled in favor of Cooper in this appeal, it follows that the appeal had merit. Thus, the motion for sanctions will be denied.
Similarly, McIntire’s motion to dismiss the appeal as frivolous, also filed on July 24, 2007, will be denied.
DISPOSITION
The supplemental judgment dated February 21, 2007, is modified so that lines 15 and 16 of page 5 are replaced with the following: “Plaintiff McIntire shall have judgment in the amount of $12,693, which is one-half the partnership’s net income.” As so modified, the supplemental judgment is affirmed.
McIntire’s motion to dismiss and her motion for sanctions are denied. Cooper shall recover her costs on appeal.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.