Barber v. Business Products Center, Inc.
| Citation | 677 So.2d 223 |
| Parties | Donald J. BARBER, et al. v. BUSINESS PRODUCTS CENTER, INC., et al. 1931553. |
| Decision Date | 23 February 1996 |
| Court | Supreme Court of Alabama |
Stevan K. Goozee and Lawrence T. King of Dillard and Ferguson, Birmingham, for Appellants.
W. Lee Thuston and J. Clinton Pittman of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for Business Products Center, Inc.
Leo E. Costello of Costello, Stott & Grayson, Birmingham, for P & S Business Machines, Inc.
Robert G. Tate and Edwin O. Rogers of Burr & Forman, Birmingham, for Canon U.S.A., Inc.
Linda A. Friedman, T. Michael Brown and John W. Smith T of Bradley, Arant, Rose & White, Birmingham, for Panasonic Communications & Systems Corp.
Donald Barber and Michael Moore, doing business as Quality Office Equipment (hereinafter referred to as "Moore") 1, sued Canon, U.S.A., Inc. (hereinafter "Canon"), and its local dealer, Business Products Center, Inc. (hereinafter "BPC"), and Panasonic Communications and Systems Company (hereinafter "Panasonic") and its local dealer, P & S Business Machines (hereinafter "P & S"). Moore alleged that the defendants had violated his rights as a third-party beneficiary of certain contracts, that they had intentionally interfered with his business relations, and that they had set out on a course of conduct with a conscious or reckless disregard of Moore's rights. Further, Moore alleged that all defendants were guilty of conspiracy to commit these acts. Ultimately, the trial court entered a summary judgment in favor of all defendants on all claims. Moore appealed.
On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact), and that he is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992); Elgin v. Alfa Corp., 598 So.2d 807 (Ala.1992). "The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact." McClendon, at 958; Elgin, at 810-11.
Rule 56 must be read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This Court reviews the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).
The record, viewed in a light most favorable to Moore, suggests the following facts: In 1987 Donald Barber operated a sole proprietorship, doing business as Quality Office Equipment ("QOE"). In the fall of that year, Barber asked Moore to invest in the business. He did. In accordance with the investment agreement, Barber was to continue operating QOE and to be responsible for daily operations, payroll, purchases, and disbursements. Each was to receive compensation for labor done, and profits were to be split equally. Moore's role included serving as a business consultant to Barber, assisting with decision-making, corresponding on behalf of QOE, and handling litigation on behalf of QOE.
In 1989 and 1990, QOE was awarded service contracts from the General Services Administration ("GSA") of the Federal Government, authorizing QOE to repair Government-owned typewriters in Jefferson County. Those service contracts included repairs to Canon and Panasonic typewriters that had been purchased by the Government pursuant to GSA contracts with the Canon and Panasonic companies.
In 1989, Panasonic and Canon entered into separate contracts with the GSA that permitted them to sell typewriters to the Government and its agencies. Both contracts contained a specific clause addressing the contractor's obligations pertaining to making parts, information, and technical assistance available to businesses, such as QOE, that had Government repair contracts. Specifically, that clause reads:
Neither Canon nor Panasonic excepted to this clause in the contract.
QOE's GSA contract began October 1, 1989. Moore testified that in the following month he became aware of the need to acquire an adequate supply of Canon and Panasonic repair parts in order for QOE to perform its GSA contract. He testified that, in December 1989, he began calling upon Canon and Panasonic's local dealers to try to get the parts. On December 12, 1989, Moore contacted Canon's local dealer, BPC, concerning repair parts and service information; however, BPC refused to sell or provide either. Moore followed up with a letter advising BPC that QOE had a GSA service contract and requesting affirmation that it was Canon's policy, as well as that of its dealers, to refuse to provide parts. Moore also wrote Canon about its dealer's refusal to supply needed parts. Canon responded by letter, stating: Efforts to acquire needed Panasonic parts met with identical results.
Moore continued attempts to acquire parts from Canon and Panasonic, without success; eventually Moore had to purchase entire used typewriters from which to "rob" parts to perform the repairs required by its GSA contract. On other occasions, the dealers themselves repaired the Government typewriters, leading to Moore's being "backcharged" by the Government. Ultimately, Moore contends that he has had loss and costs in excess of $50,000 resulting from attempts to perform his GSA contract without the ability to buy parts from Canon and Panasonic.
Canon and Panasonic argued before the trial court that Moore lacked standing to maintain this action because, they say, he offered no proof that he was a partner with Barber in QOE. It appears from the evidence that Barber has assigned all of his interests to Moore concerning this lawsuit.
It is clear that we have no settled test for determining whether a partnership exists and that whether one exists is determined by reviewing all the attendant circumstances. Vance v. Huff, 568 So.2d 745 (Ala.1990). The record reveals that Moore invested in QOE and was entitled to 50% of QOE's profits. Expenses were paid with partnership funds, and the testimony indicates that Moore and Barber intended to be partners. Moore and Barber consulted on business decisions, Moore purchased equipment for QOE, and Moore was QOE's representative in district court litigation. Viewing the evidence in a light most favorable to Moore, we conclude that that evidence, if believed by a jury, would support a finding that Moore was a partner in QOE.
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