Nickelson v. State , 1978 Tex. App. LEXIS 3310 ( 1978 )

SHANNON, Justice.

The State of Texas sued William H. Lewis and appellant Gary L. Nickelson in the district court of Travis County for sums claimed to be owed as' contributions to the Unemployment Compensation Fund for the last two quarters of 1974 and the first quarter of 1975. Tex.Rev.Civ.Stat.Ann. art. 5221b--1, et seq. (1971). Upon trial to the court, judgment was entered for the State. We will reverse that judgment.

The State pleaded that Nickelson and Lewis were partners in a dry cleaning business in Fort Worth, known as University Cleaners. Nickelson specially denied that he and Lewis were ever partners in the business. Lewis filed an answer but did not appear at trial. Nickelson, to the contrary, appeared and contested the State’s case.

The question before the court was whether Nickelson was a partner in the cleaning business during the period of time in question. If Nickelson were a partner, he was liable for unemployment taxes. The district court entered judgment against Lewis and Nickelson, jointly and severally, for $695.46. By entry of the judgment, the court necessarily concluded that Nickelson was a partner in the cleaning business.

Nickelson claims there was no evidence to support the determination that he was a partner in the business. The State’s only evidence was a document entitled “Joint Application for Total Transfer of Compensation Experience.” That document is copied below:

As the State pleaded partnership, it had the burden of producing evidence that University Cleaners was operated as a partnership by Nickelson and Lewis. Holman v. Dow, 467 S.W.2d 547 (Tex.Civ.App.1971, writ ref’d n.r.e.). The State could discharge its burden by proving that Nick-elson and Lewis operated a common enterprise for their joint benefit. Jenkins v. Brodnax White Truck Co., 437 S.W.2d 922 (Tex.Civ.App.1969, no writ).

The terms of the “Joint Application” show that Lewis relinquished all control over University Cleaners on August 1, 1974. The document does not prove that Lewis was a partner with Nickelson before August 1,1974, nor does it show Nickelson was a partner with anyone after August 1,1974. By definition Nickelson could not be a partner with himself. Tex.Rev.Civ.Stat.Ann. art. 6132b § 6(1).

Nickelson introduced an assumed name certificate that Lewis filed in the Tarrant County clerk’s office on August 1, 1974. The certificate states that Lewis is the owner of University Cleaners. The certificate is some evidence that Lewis owned the business on August 1,1974. The certificate of course contradicts the terms of the “Joint Application.” Nevertheless, neither instrument is proof that Nickelson was in partnership with Lewis after August 1, 1974.

The judgment is reversed and judgment is here rendered that the State take nothing.