Norris v. Besel

• Decision Date: 30 May 2019
• Docket Number: S-18-0254
• Parties: David NORRIS and Lisa Norris, husband and wife, Appellants (Plaintiffs), v. Shelly BESEL, Appellee (Defendant).
• Court: Wyoming Supreme Court

442 P.3d 60

David NORRIS and Lisa Norris, husband and wife, Appellants (Plaintiffs),

v.Shelly BESEL, Appellee (Defendant).

S-18-0254

Supreme Court of Wyoming.

May 30, 2019

Representing Appellant: James L. Edwards, Stevens, Edwards, Hallock & Carpenter, P.C., Gillette, Wyoming. Argument by Mr. Edwards.

Representing Appellee: Randall T. Cox, The RT Cox Law Firm; Alex Berger, Berger & Brown, Attorneys, Gillette, Wyoming. Argument by Mr. Berger.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

[¶1] Appellants, David and Lisa Norris, hired Leonard Besel, d/b/a Leonard’s Home Improvement, to remodel their home. Mr. Besel terminated the contract prior to completing the project and Mr. and Mrs. Norris filed suit. The Norrises named Mr. Besel’s wife, Shelly Besel, as a defendant, alleging she was a partner of her husband’s contracting business. Mrs. Besel denied any ownership interest and moved for summary judgment. The district court granted the motion and dismissed Mrs. Besel from the litigation with prejudice. We affirm.

ISSUES

[¶2] The Norrises state their issue on appeal as:

Whether the decision of the district court granting summary judgment in favor of Shelly Besel was correct?

A. Does a material issue of fact exist based on the evidence presented as to Shelly Besel’s status vis a vis the business?

B. Was Shelly Besel entitled to judgment as a matter of law?

FACTS

[¶3] Mrs. Norris posted an inquiry on the Gillette Area Classifieds Facebook page seeking potential contractors to remodel a home in Pine Haven, Wyoming. Mrs. Besel responded to the inquiry on January 13, 2016, and stated:

My husband has been in business for over 20 years and has vast experience in painting[,] drywall[,] flooring[,] roofing[,] window installation[,] and much more. His business is Leonard[’]s Home Improvement[.] [H]e is insured and bonded[.]

She also provided her husband’s telephone number. The Norrises contacted Mr. Besel directly, and, on March 18, 2016, the Norrises, as homeowners, and Mr. Besel, as the owner of Leonard’s Home Improvement, executed a written contract setting forth the terms of the remodel project.

[¶4] Several months later, Mrs. Norris sent Facebook messages to Mrs. Besel when Mr. Besel did not return the Norrises’ phone calls or respond to their text messages. Each time, Mrs. Besel indicated she would pass along the message to her husband or stated she would have him call them. Mr. Besel terminated the contract in late August.

[¶5] Mr. and Mrs. Norris filed a complaint asserting claims for breach of contract and breach of warranty. The complaint named Mr. and Mrs. Besel, d/b/a Leonard’s Home Improvement, as defendants. Mrs. Besel moved to dismiss herself from the lawsuit and filed an affidavit of non-involvement. The district court denied the motion. After the parties conducted discovery, Mrs. Besel moved for summary judgment, disavowing any partnership interest in Leonard’s Home Improvement.¹ The district court granted her motion following a hearing.

[¶6] Mr. Besel filed a bankruptcy petition, thus causing the district court to stay the remainder of the court proceedings. Mrs. Besel did not seek bankruptcy protection and, on the Norrises’ request, the district court entered a final judgment dismissing Mrs. Besel from the litigation to allow an immediate appeal.

STANDARD OF REVIEW

[¶7] Our review of an order granting summary judgment is de novo. James v. Taco John’s Int’l, Inc. , 2018 WY 96, ¶ 7, 425 P.3d 572, 576 (Wyo. 2018) (citation omitted). "Summary judgment is appropriate when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (citation omitted); see also W.R.C.P. 56(a). "A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties." James , ¶ 8, 425 P.3d at 577 (citation omitted). "We review a summary judgment in the same light as the district court, using the same materials and following the same standards," and "examine ‘the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn’ therefrom." Id. ¶ 7, 425 P.3d at 576 (citations omitted).

[¶8] "The party requesting summary judgment bears the initial burden of establishing a prima facie case that no genuine issue of material fact exists, and that summary judgment should be granted as a matter of law." Id. ¶ 8, 425 P.3d at 576–77 (quoting Bogdanski v. Budzik , 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160 (Wyo. 2018) ). Thereafter, the opposing party must provide "competent evidence admissible at trial showing there are genuine issues of material fact." Id. ¶ 8, 425 P.3d at 577 (quoting Jones v. Schabron , 2005 WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005) ). The opposing party "must present specific facts; relying on conclusory statements or mere opinion will not satisfy that burden, nor will relying solely upon allegations and pleadings." Id. (quoting Bogdanski , ¶ 18, 408 P.3d at 1161 ).

[¶9] The question of whether a partnership exists typically is one of fact, the answer of which is left to the fact finder. Murphy v. Stevens , 645 P.2d 82, 85 (Wyo. 1982) ; 59A Am. Jur. 2d Partnership § 201, (database updated Feb. 2019) ; P & M Cattle Co. v. Holler , 559 P.2d 1019, 1022 (Wyo. 1977) (citation omitted). Indeed, whether a partnership exists between spouses depends on the particular facts of each case and "[t]here is no single or conclusive test for a partnership that will suffice in every situation[.]" 41 C.J.S. Husband and Wife § 190, (database update Mar. 2019) (citations omitted). Summary judgment is appropriately granted, however, when a plaintiff is unable to provide any evidence on an essential element of partnership formation. See, e.g. , Popejoy v. Steinle , 820 P.2d 545, 552 (Wyo. 1991) (explaining that "[w]hile the question is generally left to the fact finder to determine existence of a joint venture," summary judgment is nonetheless proper if a plaintiff is unable to show any evidence of a necessary element of the cause of action); O’Donnell v. City of Casper , 696 P.2d 1278, 1281 (Wyo. 1985) ("Summary judgment is proper only when it is clear that no issue of material fact is involved and inquiry into the facts is not desirable to clarify application of law.").

DISCUSSION

[¶10] In support of her summary judgment motion, Mrs. Besel claimed that she is not a partner or co-owner of her husband’s business. She alleged that no evidence existed that she and her husband agreed to form a partnership or share in the profits, and that filing a joint tax return is not sufficient to establish a partnership between spouses. She claimed the evidence instead established she only assisted her husband with certain tasks as his wife and that she did not have any control in the management of her husband’s business.²

[¶11] In opposition to Mrs. Besel’s summary judgment motion, the Norrises argued that Leonard’s Home Improvement was a two-person operation wherein Mr. Besel performed the labor for the company and Mrs. Besel handled administrative matters. The Norrises presented the following facts as evidence of Mrs. Besel’s partnership interest:

• Mrs. Besel created a Facebook page for Leonard’s Home Improvement;

• The Facebook page belongs to Mrs. Besel and she uses her password to access it;

• Mrs. Besel posts pictures of her husband’s work to the Facebook page and she is "tagged" or alerted when a customer makes an inquiry about the business;

• Mrs. Besel responds to inquiries about the business on Facebook and forwards information on customers to her husband;

• Mrs. Besel referred to the Facebook page as "ours";

• Mrs. Besel responded to Mrs. Norris’ Facebook inquiry;

• Mrs. Besel provided Mrs. Norris with pictures of her husband’s work and represented he had vast experience;

• After Mr. Besel started the Norrises’ project, Mrs. Besel responded to inquiries from the Norrises when Mr. Besel did not return their calls or text messages;

• Mrs. Besel sometimes types up bids and invoices for the business because Mr. Besel’s computer skills are minimal; and• Mr. and Mrs. Besel filed joint tax returns.

[¶12] On appeal, the Norrises contend that the district court improvidently granted summary judgment because genuine issues of material fact exist as to whether Mrs. Besel is a partner or purported partner of Leonard’s Home Improvement. Mrs. Besel argues that the facts the Norrises rely on are insufficient to establish a partnership or purported partnership as a matter of law.

Partnership

[¶13] The Wyoming Uniform Partnership Act provides that "the association of two (2) or more persons to carry on as co-owners of a business for profit creates a partnership, whether or not the persons intend to create a partnership."³ Wyo. Stat. Ann. § 17–21–202(a) (LexisNexis 2017). "The basic elements of a partnership or a joint venture are that the parties agree to share in some way the profits and losses of the business venture." Redland v. Redland , 2012 WY 148, ¶ 177, 288 P.3d 1173, 1213 (Wyo. 2012) (quoting Edler v. Rogers , 817 P.2d 886, 888 (Wyo. 1991) ). The parties must intend to create a business relationship. P & M Cattle Co. , 559 P.2d at 1022 (citation omitted). "The intent that is determinative is the intent to do things that constitute a partnership." Redland , ¶ 177, 288 P.3d at 1213 (citations omitted); see also Ziegler v. Dahl , ¶ 14, 691 N.W.2d 271, 275 (N.D. 2005) (explaining that the focus is not on an individual’s subjective intent to be "partners," but rather "on whether the individuals intended to jointly carry on a business for profit").

[¶14] Allegations of a partnership between husband and wife must be clearly proved. Dimick v. Hopkinson , 2018 WY 82, ¶ 33, 422 P.3d 512, 523 (Wyo. 2018) (quoting 59A Am. Jur. 2d Partnership § 201 (May 2018 update) (citing cases)); In re Roche , 582 B.R. 632, 637–38, n.23 (Bankr. W.D. Pa. ...