Clyde Ackerman v. Roy C. Walker, Inc. ( 2009 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Clyde Ackerman, Respondent,

v.

Roy C. Walker, John R. Walker, John R. Walker, Inc., and Roy C. Walker, Inc., Appellants.

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Appeal From Colleton County
J. Brady Hair, Special Referee

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Unpublished Opinion No. 2009-UP-622
Heard April 22, 2009 – Filed December 30, 2009  

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AFFIRMED and REMANDED

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Desa Ballard and P. Christopher Smith, Jr., both of West Columbia, for Appellants.

Charles S. Bernstein and Robert A. Bernstein, both of Charleston, for Respondent.

PER CURIAM:  Roy C. Walker, John R. Walker, John R. Walker, Inc., and Roy C. Walker, Inc. (collectively Appellants) allege the special referee erred in:  (1) failing to apply the burden of proof to the facts and failing to address the elements of a partnership; (2) treating this case as an accounting case after he concluded a partnership existed; and (3) concluding Clyde Ackerman was entitled to profits made from the interest collected from the financing of the properties.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:  S.C. Code Ann. § 33-41-210 (2006) ("A 'partnership' is an association of two or more persons to carry on as co-owners a business for profit . . . ."); S.C. Code Ann. § 33-41-220(4) (2006) (stating the sharing of profits is prima facie evidence of the existence of a partnership); Moore v. Moore, 360 S.C. 241, 260, 599 S.E.2d 467, 477 (Ct. App. 2004) ("Where the parties to a contract, by their acts, conduct, or agreement show that they intended to combine their property, labor, skill and experience, or some of these elements on one side, and some on the other, to carry on, as principals or co-owners, a common business, trade, or venture as a commercial enterprise, and to share, either expressly or by implication, the profits and losses or expenses that may be incurred, such parties are partners.") (internal quotation omitted); Halbersberg v. Berry, 302 S.C. 97, 101, 394 S.E.2d 7, 10 (Ct. App. 1990) (employing the following tests to determine whether a partnership exists:  (1) the sharing of profits and losses; (2) community of interest in capital or property; and (3) community of interest in control or management); Stephens v. Stephens, 213 S.C. 525, 531, 50 S.E.2d 577, 579 (1948) ("[W]hen all of the conditions exist which by law create a legal relationship, the effects flowing legally from such relation follow whether the parties foresaw and intended them or not.").     

Additionally, we remand this case to the Special Referee for dissolution.  At trial and in their briefs, both parties requested dissolution.  S.C. Code Ann. § 33-41-930(1)(b) (2006) (stating dissolution can be obtained "by the express will of any partner when no definite term or particular undertaking is specified").  Because we remand for dissolution, we also remand for an accounting.          

AFFIRMED and REMANDED.

HEARN, C.J., and PIEPER, J., and LOCKEMY, J., concur.