Wilder v. Hobson, 9019SC356

• Decision Date: 18 December 1990
• Docket Number: No. 9019SC356,9019SC356
• Citation: 398 S.E.2d 625,101 N.C.App. 199
• Court: North Carolina Court of Appeals
• Parties: Henry Lee WILDER, Plaintiff, v. James E. HOBSON, John Castle, Earnest O. Fair, Albert R. Dawkins, Wilbert Torrence, Sr., Edward O. Tracey, Sr., Elisha L. Boyd, Walter D. Tracey, Willie J. Tabor, Harvey Davis, A.M. Hasan and Cal Smith, Jr., Individually and doing business as Safety Taxi, Defendants.

Page 625

398 S.E.2d 625

101 N.C.App. 199

Henry Lee WILDER, Plaintiff, v. James E. HOBSON, John Castle, Earnest O. Fair, Albert R.

Dawkins, Wilbert Torrence, Sr., Edward O. Tracey, Sr.,

Elisha L. Boyd, Walter D. Tracey, Willie J. Tabor, Harvey

Davis, A.M. Hasan and Cal Smith, Jr., Individually and doing

business as Safety Taxi, Defendants.

No. 9019SC356.

Court of Appeals of North Carolina.

Dec. 18, 1990.

Carlton, Rhodes & Carlton by Gary C. Rhodes, Salisbury, for plaintiff-appellant.

Hancock and Hundley by R. Darrell Hancock and Jennifer B. Flynn, Salisbury, for defendants-appellees.

Caudle & Spears, P.A. by Lisa M. Crotty and Lloyd C. Caudle, Charlotte, for defendant-appellee Willie J. Tabor.

Wyatt Early Harris Wheeler & Hauser by Kim R. Bauman, High Point, for defendant-appellee Harvey Lee Davis.

WELLS, Judge.

Plaintiff contends that the trial court erred in granting defendants' motions for summary judgment since a genuine issue of material fact exists whether "Safety Taxi" constitutes a partnership or a joint venture. Plaintiff contends that even if defendants are not engaged in a classic partnership, a question of fact exists whether defendants held themselves out to the public to be a partnership by filing a certificate of assumed name pursuant to N.C.Gen.Stat. § 66-68 and displaying the "Safety Taxi" sign and telephone number on their taxis. Defendants contend that summary judgment was proper because their affidavits, indicating defendants individually owned their taxis and did not share profits, negate the existence of a partnership as a matter of law.

Summary judgment shall be rendered forthwith if the materials presented show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56 (1983); Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C.App. 85, 336 S.E.2d 653 (1985). A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C.App. 213, 341 S.E.2d 61 (1986) (citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). In their affidavits presented to the court, defendants establish that no claim for relief exists in this case and the trial court properly granted defendants' motions for summary judgment.

The North Carolina Uniform Partnership Act defines a partnership as "... an association of two or more persons to carry on as co-owners a business for profit." N.C.Gen.Stat. § 59-36(a) (1989); G.R. Little Agency, Inc. v. Jennings, 88 N.C.App. 107, 362 S.E.2d 807 (1987) (quoting Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)). Existence of a partnership does not require an express agreement and the parties' intent to formulate a partnership can be inferred by the conduct of the parties by examining all the circumstances. Peed v. Peed, 72 N.C.App. 549, 325 S.E.2d 275, cert. denied, 313 N.C. 604, 330 S.E.2d 612 (1985). "A partnership is a combination of two or more persons of their property, effects, labor, or skill in a common business or venture, under an agreement to share the profits and losses in equal or specified proportions, and constituting each member an agent of the others in matters appertaining to the partnership and within the scope of its business." Zickgraf Hardwood Co. v. Seay, 60 N.C.App. 128, 298 S.E.2d 208 (1982) (citing Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)). Our appellate courts have clearly held that co-ownership and sharing of any actual profits are indispensable requisites for a partnership. Sturm v. Goss, 90 N.C.App. 326, 368 S.E.2d 399 (1988). Although sharing profits does not of itself establish a partnership, the Uniform Partnership Act emphasizes the importance of sharing profits in the existence of a partnership by mandating that the receipt by a person of a share of business profits is prima facie evidence that he is a partner.... N.C.Gen.Stat. § 59-37(3) and (4) (1989). Filing a partnership tax return is significant evidence of a partnership. Reddington v. Thomas, 45 N.C.App. 236, 262 S.E.2d 841 (1980).

We reject plaintiff's contention that materials offered opposing defendants' motions for summary judgment create a genuine issue regarding the existence of a partnership. A genuine issue is one which can be maintained by substantial evidence. Sturm, supra. Plaintiff based his claim on the theory that defendants held themselves out as a partnership or joint venture by signing a certificate of assumed name, displaying the "Safety...