Greiner v. General Elec. Credit Corp.
| Decision Date | 01 January 1968 |
| Court | Florida District Court of Appeals |
William A. Harmening, Orlando, for appellants.
Richard W. Lassiter, of Gurney, Gurney & Handley, Orlando, for appellees-Proctor.
The case arose below as the result of a complaint seeking the enforcement of a conditional sales contract. All of the parties to this appeal were defendants in that proceeding.
A cross-claim was filed by Theodore E. Greiner and Nancy S. Greiner, his wife, William G. Harger and Fayette Harger, his wife, S. G. Latty and Eugena C. Latty, his wife, against Eve Proctor, Richard H. Proctor, Eve Proctor, Inc., a Florida corporation, and Evelyn Ouzts as a partnership doing business as The Birdcage, jointly and severally.
One of the cross-defendants, Evelyn Ouzts, by written agreement, assumed and agreed to make the payments required in the conditional sale contract. She does not deny this responsibility and in fact has not filed a brief or any other pleadings with this court. The cross-complaint alleges and concludes that the remaining cross-defendants were undisclosed partners of Evelyn Ouzts in the operation of the restaurant known as The Birdcage and as a consequence are equally liable under the provisions of the assumption agreement.
Although admittedly only Evelyn Ouzts signed the agreement, and admittedly she signed as an individual the cross-complainants alleged a factual situation in their third amended cross-claim which they urge, if proved, results in a de-facto partnership with all of the partners jointly liable under the terms of the assumption agreement.
The trial judge granted a motion to dismiss. The cross-complainants elected not to plead further and this appeal resulted.
The cross-claimants in their brief state (Emphasis added.)
An examination of the third amended cross-claim and the exhibits attached reveals there are no allegations to support a conclusion that the alleged partners agreed to divide either profits or losses; therefore, no partnership may arise 'by operation of law.'
We have not overlooked the allegations that Evelyn Ouzts had as lessee agreed to pay Eve Proctor, Inc., the lessor, a monthly rent of $210.00 per month or 6 per cent of the gross sales (less sales tax) or whichever sum is greater for the first year and a higher minimum monthly rental for the next year. However, this is a well accepted method of determining rents for various types of business properties....
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...beyond the role of a lender and thus owes no fiduciary duties), cert. denied, 366 So.2d 879 (Fla.1978); Greiner v. Gen. Elec. Credit Corp., 215 So.2d 61, 63 (Fla.App. 4 Dist.1968) (declining to find joint venture element where arrangement arguably indicative of the element is a well accepte......
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...enterprise of licensee prove unprofitable "fails to meet the loss requirement" for joint venture); Greiner v. General Electric Credit Corp., 215 So.2d 61, 63 (Fla. 4th DCA 1968) (foregoing rent for period of lease term not an agreement to share losses). Finally, neither JAA nor Majestic has......
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