Michael J. Malouf v. Lisa Evans

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00374-COA
MICHAEL J. MALOUF APPELLANT
v.
LISA EVANS D/B/A LAKE HARBOUR MARINE APPELLEE
DATE OF JUDGMENT: 02/14/2017
CIRCUIT JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF
ROBERT EUGENE JONES II
ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 07/17/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WESTBROOKS, J., FOR THE COURT:
¶1. In June 2014, Michael Malouf filed a complaint against Lisa Evans, Lake Harbour
Marine, and Michael Evans, in the County Court of Rankin County, alleging breach of
contract, breach of good faith and fair dealing, breach of trust, breach of warranty, fraud,
misrepresentation, deceit, deception, conversion, unlawful taking, unjust enrichment, assault,
duress, negligence, and gross negligence. In June 2016, upon the conclusion of Malouf’s
case in chief, the trial court granted Lisa’s motion for a directed verdict, finding that there
was insufficient evidence to prove that Lisa was in a business partnership with her husband,
Evans, or that Lisa was responsible for any misrepresentations made on behalf of Lake
Harbour Marine. In July 2016, Malouf filed a motion for reconsideration, which was denied
by the trial court. Malouf appealed both the trial court’s judgment and order denying the
motion for reconsideration to the Circuit Court of Rankin County. The circuit court affirmed
the decision of the county court. Malouf now appeals. After review of the record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In May 2014, Malouf experienced issues with his boat. He took the boat to Mike Ivy,
at Ivy Marine, to have the boat inspected. Ivy testified that he discovered the boat’s engine
was cracked and estimated the cost of repairs somewhere between $6,000 and $7,000.
Malouf testified that Ivy stated he would make additional repairs and change the oil.
However, both Ivy and Malouf testified that before committing to the repairs, Malouf wanted
a second opinion.
¶3. Malouf then took his boat to Evans,1 the owner of Lake Harbour Marine.2 Malouf
testified that Evans stated he would place a new 350 horsepower engine in the boat, and that
total repairs would cost between $4,500 and $5,500. The agreement also stated that the
repairs were to be completed by July 4, 2014.
¶4. Malouf testified that he attempted to contact Lake Harbour Marine several times to
check on his boat; however, he was unable to reach anyone. Malouf stated that he visited
Lake Harbour Marine on July 2, 2014, and encountered Lisa. Lisa informed him that the
1
Evans died in 2014 after the complaint was filed but before the trial started in 2016.
Malouf testified that he filed a claim against Evans’s estate; however, the estate was
insolvent.
2
The record does not reflect that “Lake Harbour Marine” was a recognized business
entity registered with the Mississippi Secretary of State’s Office.
2
engine on the boat had not yet been replaced at that time. According to Malouf, he continued
to call Lake Harbour Marine and always spoke with Lisa regarding the progress made on the
repairs. During one of the phone calls, Lisa informed Malouf that his boat was being
repaired; however, parts of the boat were missing. Malouf contacted Ivy Marine and located
the parts, and Lisa arranged for her daughter to deliver the parts to Lake Harbour Marine.
Malouf stated that Lisa requested he bring $3,850 in cash to pick up the boat, because of
something negative Malouf’s daughter allegedly posted on Facebook regarding Lake
Harbour Marine’s business practices. Malouf testified that after his conversation with Lisa,
he continued to call Lake Harbour Marine for several days. However, he was unable to reach
anyone.
¶5. On July 11, 2014, Malouf spoke with Lisa again, and Lisa directed him to her
attorney, Chris Tabb. Tabb informed Malouf that he could pick up the boat later that day.
Malouf, Mike Malouf Jr. (Mike Jr.), and an officer3 from the Flowood Police Department
traveled to Lake Harbour Marine to pick up the boat. Lisa gave Malouf an invoice
representing that several repairs had been completed.4 Mike Jr. and Malouf testified that they
proceeded directly to the reservoir after retrieving the boat to test it. However, the boat
3
Malouf and Mike Jr. testified that they both were involved in heated exchanges with
Evans regarding the boat, so they thought it would be best to return with a police officer.
4
The invoice stated that the following repairs were performed: installed a new 5.0
short block, installed 2 used manifolds and manifold risers, transferred heads and all
electronics from busted block, replaced water pump impeller in outdrive, and complete fluid
service. Malouf was also charged for a new oil filter and five quarts of oil.
3
would not accelerate over approximately five to ten miles per hour. The next day, Malouf
returned the boat to Ivy Marine for further inspection.
¶6. Ivy testified that one manifold had been replaced and the top part of the engine had
been cleaned. However, Ivy noted that the engine had the same crack in the same spot as it
did before Malouf took it to Lake Harbour Marine for repair. Ivy stated that the oil was
black, and it appeared to be the same oil that he had placed in the boat a year prior. Further,
Ivy noticed that the serial number had been removed from the cracked engine. As a result,
Ivy performed the necessary repairs to Malouf’s boat, after Malouf notified Lake Harbour
Marine that they could inspect the engine to see whether it had been replaced. It was later
determined that the engine had not been replaced. Malouf testified that he continued to send
correspondence to Evans, Tabb, and Lake Harbour Marine regarding the misrepresentations.
¶7. In August 2014, Malouf filed a complaint against Evans and Lisa, individually, and
Lake Harbour Marine in the County Court of Rankin County, alleging breach of contract,
breach of good faith and fair dealing, breach of trust, breach of warranty, fraud,
misrepresentation, deceit, deception, conversion, unlawful taking, unjust enrichment, assault,
duress, negligence, and gross negligence.
¶8. In June 2016, a jury trial was held against Lisa, individually, and Lake Harbour
Marine. Upon the conclusion of Malouf’s case-in-chief, the trial court granted Lisa’s motion
for a directed verdict, finding that there was insufficient evidence to prove that Evans and
Lisa were in a partnership or that Lisa was responsible for any misrepresentations made on
4
behalf of Lake Harbour Marine. In July 2016, Malouf filed a motion for reconsideration,
which the trial court denied. Malouf appealed both the trial court’s judgment and order
denying the motion for reconsideration to the Circuit Court for Rankin County. The circuit
court affirmed the decision of the county court. Malouf appeals.
STANDARD OF REVIEW
¶9. “The standard of review for a trial court’s grant or denial of a motion for a directed
verdict is de novo.” Harris v. Michael, 211 So. 3d 732, 734 (¶6) (Miss. Ct. App. 2016).
DISCUSSION
I. Whether the trial court erred in granting Lisa’s motion for
directed verdict.
¶10. Malouf asserts that the trial court erred in granting Lisa’s motion for a directed verdict
because there was evidence for a jury to find that Lisa was liable for his damages. However,
the trial court ruled that in order for Lisa to be liable for Malouf’s damages, Malouf would
have had to prove that Lisa and Evans were in a partnership. The trial court determined that
no evidence of a partnership had been presented.
¶11. “Mississippi Code Annotated section 79-13-202(a) (Rev. 2013) [describes] a
partnership as ‘the association of two or more persons to carry on as co-owners [of] a
business for profit.’” Carlson v. Brabham, 199 So. 3d 735, 740 (¶17) (Miss. Ct. App. 2016).5
Further, in Carlson, this Court held:
5
The definition is provided in Mississippi Code Annotated section 79-13-101(6) (Rev.
2013).
5
The three main questions that are considered in partnership determination are
(1) the intent of the parties, (2) the control question, and (3) profit sharing.
The intent required to form a partnership may be implied. However, profit
sharing may be the most important factor. A person who receives a share of
the profits of a business is presumed to be a partner in the business, unless the
profits were received in payment of wages or other compensation to an
employee.
Id. (citations omitted).
A. Intent
¶12. At trial, Malouf presented evidence and testimony that he interacted with Lisa on
several occasions. Justin Atwood, a former employee of Lake Harbour Marine, testified that
Lisa would come to the shop every day to help with the books and any other tasks that Evans
asked of her, because there was no bookkeeper or secretary. However, the trial court noted
that Lisa did not conduct any business without Evans’s approval, nor did she assist with any
repairs. Furthermore, Lisa never identified herself as an owner of Lake Harbour
Marine–even though Malouf disputed that assertion.
¶13. Also, the trial court found that there was no evidence presented at trial that Lisa and
Evans intended to run the business as partners. Furthermore, Malouf did not submit any
evidence of a written agreement among Lisa, Evans, and Lake Harbour Marine. After
weighing the evidence, the trial court found that Malouf did not present sufficient evidence
to prove the intent requirement.
¶14. Accordingly, this Court finds this issue is without merit.
B. Control
6
¶15. Malouf asserts that Lisa controlled the day-to-day operations at Lake Harbour Marine;
therefore, a valid partnership was formed between Lisa and Evans. However, outside of
bookkeeping and writing invoices, no testimony was presented that Lisa controlled any other
aspect of the business. This Court has held that “while control is indicative of the existence
of a partnership, control by itself is not the exclusive indicator of partnership.” Carlson, 199
So. 3d at 741 (¶22). Evidence presented at trial demonstrated that Lisa always spoke to
Evans before writing the invoices for Malouf. Malouf testified that Lisa held herself out as
part-owner; however, the trial court found his testimony unpersuasive. Atwood testified that,
at times, Lisa was at the business every day; he explained that she “helped out with
paperwork.” Atwood also testified that Lisa and Evans spoke about Malouf’s boat repair;
however, he did not know how detailed those conversations were.
¶16. The dissent mentions that Atwood also testified that Lisa would bring the shipments
in and file them and that Lisa did most of the paperwork. However, the trial court was not
persuaded by that testimony. Moreover, Atwood was not allowed to testify regarding if Lisa
knew whether the engine had been replaced because he lacked personal knowledge.
¶17. Additionally, the letter Malouf sent to Evans, Tabb, and Lake Harbour Marine did not
mention Lisa’s name. The trial court found the letter to be very persuasive because the letter
neither mentioned Lisa’s name independently in a partnership with Evans nor Lake Harbour
Marine. Malouf testified that although Lisa’s name was left off the letter to Lake Harbour
Marine, he considered Lisa to be “Lake Harbour Marine” and in control over the business.
7
The trial court found Malouf’s testimony unpersuasive and unsubstantiated. Further, the
court stated that the problem with Malouf’s testimony was that it related to what happened
to Lake Harbour Marine after Evans died; however, the events in question occurred while
Evans was still alive. It did not appear that Lisa had control over the business while Evans
was alive.
¶18. Accordingly, after review of the record, we find that Malouf failed to prove that Lisa
controlled the direction of the business.
C. Profit Sharing
¶19. Malouf asserts that Lisa and Evans were sharing profits because she was awarded a
truck and money from the business after Evans died. However, the trial court determined
that Malouf failed to show that Lisa and Evans shared profits from the business simply
because they were married or that she received profits after Evans’s death. Malouf asserts
that he gave Lisa the money for the repairs; however, it is unclear what happened with the
money once it fell into Lisa’s possession—although Malouf stated he believed the money
went into a safe. The trial court found that Malouf’s evidence of Lisa taking money and
putting it in a safe was “post debt” and did not reflect that Lisa and Evans shared profits.
This Court has held that “[o]f the three factors, profit sharing is the most important one in
determining whether a partnership exists.” Carlson, 199 So. 3d at 742 (¶25).
¶20. In Carlson, “[the plaintiff] received checks for bookkeeping services.” Id. As a
result, the trial court found that she could only prove profit sharing. Id. at (¶26). In this case,
8
Malouf presented no evidence that Lisa shared any profits from Lake Harbour Marine with
her husband. Moreover, we have held that “[a] person who receives a share of the profits of
a business is presumed to be a partner in the business, unless the profits were received in
payment of wages or other compensation to an employee.” Id. at 740 (¶17) (citing Miss.
Code Ann. § 79-13-202 (c)(3)(ii)). Malouf did not present evidence to establish that Lisa
was more than an employee.
¶21. As a result, the trial court determined that Malouf’s argument that Lisa was in a
partnership with Evans was speculative at best. Accordingly, we find that the trial court
correctly found that Malouf failed to prove that Lisa and Evans were involved in a
partnership.
II. Whether Malouf’s claim is viable under the Uniform Partnership
Act.
¶22. The dissent argues that Malouf presented sufficient evidence to withstand Lisa’s
motion for directed verdict under the Uniform Partnership Act.
¶23. The dissent writes that “Lisa gave Malouf an invoice apparently written in her
handwriting that represented that Lake Harbour Marine replaced Malouf’s old engine with
a ‘new short block.’” Post ¶44. As a result, the dissent maintains that there is sufficient
evidence that Lisa held herself out to be a partner (or joint venturer), by words or conduct,
and Malouf relied to his detriment on her representation. However, the evidence does not
quite support that theory.
¶24. Testimony supports that Lisa created the receipt after a conversation with Evans—not
9
after completing her own thorough analysis of the agreement between Evans and Malouf or
the condition of the boat. Furthermore, this Court should not hold employees liable as
“partners” for simply supplying receipts to customers. The evidence presented nothing more
than an employee status. An argument that Malouf relied upon Lisa’s receipt alone regarding
the work to have been completed on his boat is misleading. Moreover, the trial court found
that Lisa was not liable as a “joint venturer.”
¶25. “A joint venture has been broadly defined as an association of persons to carry out a
single business enterprise for profit, for which purpose they combine their property, money,
efforts, skill and knowledge.” Pennebaker v. Gray, 924 So. 2d 611, 618 (¶22) (Miss. Ct.
App. 2006) (internal quotation mark omitted). Here, the trial court courted weighed the
testimony submitted in Malouf’s case-in-chief and determined that Malouf failed to make a
prima facie showing that Lisa committed fraud or was guilty of misrepresentation.
Therefore, the trial court did not just simply “ignore[] Malouf’s proof of other theories of
liability.” Post ¶44.
¶26. Malouf maintains that Lisa presented herself as a purported partner. Under
Mississippi Code Annotated section 79-13-308 (Rev. 2018):
if a person, by words or conduct, purports to be a partner, or consents to being
represented by another as a partner, in a partnership or with one or more
persons not partners, the purported partner is liable to a person to whom the
representation is made, if that person, relying on the representation, enters into
a transaction with the actual or purported partnership.
¶27. Here, the trial court found that the evidence supported that Lisa was not a purported
10
partner—even if she participated in counting inventory, collecting money, and writing
receipts. See Carlson, 199 So. 3d at 742 (¶¶22-23) (finding that bookkeeping and handling
finances did not equate to controlling an aspect of a business). Accordingly, we find this
issue is without merit.
III. Whether the trial court made inferences favorable to Lisa.
¶28. Malouf further asserts that the trial court erred in making inferences favorable to Lisa.
Malouf states that on a motion for a directed verdict, the trial court is required to consider
the evidence presented, together with any reasonable inference, in the light most favorable
to Malouf. The Mississippi Supreme Court has stated:
The trial judge is to look solely to the testimony on behalf of the party against
whom a directed verdict is requested. He will take such testimony as true along
with all reasonable inferences which can be drawn from that testimony which
is favorable to that party, and, if it could support a verdict for that party, the
directed verdict should not be given. If reasonable minds might differ as to this
question, it becomes a jury issue.
Harris, 211 So. 3d at 734 (¶6).
¶29. The trial court heard the evidence and testimony presented by Malouf. The court
acknowledged that Malouf had been “hoodwinked, bamboozled, and cheated” out of his
money. However, the trial court found that Malouf could not prove that Lisa had any
knowledge of the misrepresentations made by Evans or Lake Harbour Marine.
¶30. As a result, the trial court found that Malouf failed to submit any proof, other than
speculation and inference, that a partnership between Lisa and Evans had been established.
Therefore, viewing the evidence in the light most favorable to Malouf, we are of the opinion
11
that reasonable minds could not differ as to whether Lisa and Evans were partners. As a
result, the issue of whether Lisa was liable for Malouf’s damages did not have to be
submitted to a jury.6 Accordingly, we find no error in the trial court’s decision to enter the
directed verdict.
¶31. AFFIRMED.
IRVING, P.J., BARNES, WILSON AND TINDELL, JJ., CONCUR.
GREENLEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
LEE, C.J., GRIFFIS, P.J., AND CARLTON, J. FAIR, J., NOT PARTICIPATING.
GREENLEE, J., DISSENTING:
¶32. I respectfully dissent. The trial judge in this case failed to consider and apply the
Uniform Partnership Act (“UPA”), and only focused on whether Malouf proved that Lisa
Evans was a partner in Lake Harbour Marine. Malouf’s trial proceeded against Lisa
individually and d/b/a Lake Harbour Marine. Lisa was sued individually and “doing business
as” Lake Harbour Marine. The UPA recognizes multiple theories of liability under which
Lisa may be held liable: she may be liable as a partner,7 a joint venturer,8 or as a purported
partner.9 Malouf presented evidence at trial that Lisa acted and presented herself as a partner
or joint venturer and evidence that Malouf relied to his detriment on her representation. In
6
Malouf also asserts that the trial court erred in not allowing the case to be submitted
to a jury; however, we disagree with this assertion.
7
Miss. Code Ann. § 79-13-306(a) (Rev. 2013).
8
Barrett v. Jones, 27 So. 3d 363, 372 (¶31) (Miss. 2009).
9
Miss. Code Ann. § 79-13-308(a) (Rev. 2013).
12
granting Lisa’s directed verdict, the trial judge determined that Lisa and Mike Evans were
not partners, even though Lisa put on no proof. In deciding whether a directed verdict is
appropriate, we consider the evidence favoring the nonmovant as true and give the
nonmovant the benefit of all reasonable inferences in their favor. Thompson v. Dung Thi
Hoang Nguyen, 86 So. 3d 232, 236 (¶12) (Miss. 2012). I would therefore find that Malouf
presented sufficient evidence to withstand Lisa’s motion for a directed verdict.
FACTS
¶33. Malouf sued both Evans and Lisa individually and d/b/a Lake Harbour Marine. Prior
to trial, a suggestion of death was filed stating that Evans died. Malouf did not move to
amend his complaint to substitute Evans’s estate as a defendant. After the court dismissed
Evans as a party, the trial went forward against Lisa d/b/a Lake Harbour Marine.
¶34. During trial, Malouf testified that he originally took his boat to Ivy Marine, after he
experienced issues with his boat. Upon inspection of Malouf’s boat, Mike Ivy, the owner of
Ivy Marine, discovered a crack in the engine block. Ivy estimated repairs would cost between
$6,000 and $7,000. Ivy also offered to make additional repairs and change the boat’s oil.
However, Malouf wanted a second opinion before he committed to the repairs. Malouf
testified that he then took his boat to Evans, at Lake Harbour Marine. Malouf stated that
Evans agreed to replace his boat engine with a new 350-horsepower engine, and that the
estimated cost would be between $4,500 and $5,500, with repairs to be completed by July
4, 2014. Malouf signed a work order and paid Lake Harbour Marine $2,000 in order for Lake
13
Harbour Marine to start work on his boat.
¶35. Malouf said he attempted to check on his boat several times while it was at Lake
Harbour Marine. He stated that he called several times but got no response. He then went by
Lake Harbour Marine, and Lisa told him to speak with Evans, who was in the back of the
shop. Malouf found Evans and explained that he was preparing to leave town but wanted to
make sure that his boat would be ready by July 4. Malouf said that Evans pointed to an old
engine sitting on a wood pallet, stating “that’s your engine right there.” Malouf responded
that it was not a new engine. Evans disagreed, promising it was. After Malouf again
questioned whether the engine on the wood pallet was the proper replacement, Evans
threatened Malouf and told him to get off his property. Malouf testified that following this
incident, Lisa became his primary contact throughout his dealings with Lake Harbour
Marine.
¶36. Malouf testified that he and Lisa had numerous conversations about repairing his boat.
Malouf stated that:
[Lisa] knew what was going on, acted like it. She acted like she had authority
telling me what to do, what to bring, how much money to come. She said
we’re working on the boat; it’ll be ready now and then. She acted like she was
an owner, [and] presented herself as an owner.
Malouf further testified that Lisa demanded that he bring $3,850 in cash in order for him to
pick up his boat. He said that in a later conversation, he requested Lisa send him an invoice
so he could see what he was paying for but that she refused and instructed him to talk to her
attorney, Chris Tabb. Malouf went to pick up his boat and paid $3,850 in cash. At that time,
14
Lisa presented Malouf with an invoice indicating that the short block in his boat’s engine had
been replaced. The invoice appeared to be written in Lisa’s handwriting. After picking up
his boat, Malouf took it to the reservoir and immediately discovered it did not function
properly because it would not accelerate over approximately five to ten miles per hour.
¶37. The next day, Malouf took his boat to Ivy Marine for inspection. Ivy testified that he
examined Malouf’s boat, and that although one of the boat’s manifolds had been replaced,
the engine had the same crack in the same spot as before, and the engine’s serial number had
been removed. He concluded that Lake Harbour Marine did not replace Malouf’s engine.
¶38. Justin Atwood also testified at trial. Atwood testified that he worked at Lake Harbour
Marine in June 2014 and that, as an employee, he sold and assembled boats. Atwood said that
during his time at Lake Harbour Marine, the business received shipments from United Parcel
Service (UPS) almost daily and that Lisa would “bring [the shipments] in and file them[.]”
Atwood stated that either he, Lisa, or Evans would check in purchased parts. He also said
that Lisa tried to do most of the paperwork, and that if a boat came in that needed to be
worked on, Lisa would check Lake Harbour Marine’s inventory to see if parts needed to be
ordered. Atwood testified that Lisa and Evans had many conversations about the repairs to
Malouf’s boat.
¶39. Following the conclusion of Malouf’s case-in-chief, the trial court granted Lisa’s
motion for a directed verdict, finding there was insufficient evidence to prove that Evans and
Lisa were in a partnership or that Lisa was responsible for any misrepresentations made on
15
behalf of Lake Harbour Marine. On July 18, 2016, the trial court entered a judgment
dismissing Evans without prejudice and dismissing Lisa with prejudice. The judgment did
not address Lake Harbour Marine. Malouf filed for a motion for reconsideration, which the
trial court denied. Malouf then appealed both the trial court’s judgment and the order denying
the motion for reconsideration to the Rankin County Circuit Court. The circuit court affirmed
the county court’s decision, finding that Malouf failed to make a prima facie showing that
Lisa committed fraud or was guilty of misrepresentation. Further, in affirming the county
court’s decision, the circuit court found that there was no evidence that Lisa knew or should
have known that Evans failed to replace the motor as represented, or that Lisa knew that any
of the representations she made were false. Malouf timely appealed.
DISCUSSION
¶40. We review de novo a trial court’s grant or denial of a motion for a directed verdict.
Thompson, 86 So. 3d at 236 (¶12). The Mississippi Supreme Court has stated that:
in deciding whether a directed verdict should be granted, the trial judge is to
look solely to the testimony on behalf of the party against whom a directed
verdict is requested. He will take such testimony as true along with all
reasonable inferences which can be drawn from that testimony which is
favorable to that party, and, if it could support a verdict for that party, the
directed verdict should not be given. If reasonable minds might differ as to this
question, it becomes a jury issue.
Solanki v. Ervin, 21 So. 3d 552, 555 (¶8) (Miss. 2009) (quoting White v. Thomason, 310 So.
2d 914, 916-17 (Miss. 1975)). The supreme court has also held that “in considering the
evidence and all reasonable inferences, the court must determine whether the evidence is so
16
overwhelmingly against the nonmovant that no reasonable juror could have found in [his]
favor.” Id.
¶41. In 2004, Mississippi adopted the “Uniform Partnership Act of 1997.” Miss. Code Ann.
§§ 79-13-101, et seq.10 These provisions are a codification of common law that define and
govern the operation of businesses explicitly and implicitly run as partnerships. A partnership
is defined as “an association of two (2) or more persons to carry on as co-owners a business
for profit . . . .” Miss. Code Ann. § 79-13-101(8) (Supp. 2017). Pursuant to Mississippi Code
Annotated section 79-13-305(a) (Rev. 2013), “[a] partnership is liable for loss or injury
caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or
other actionable conduct, of a partner acting in the ordinary course of business of the
partnership or with authority of the partnership.” The UPA provides that “a partnership is an
entity distinct from its partners.” Miss. Code Ann. § 79-13-201(a) (Rev. 2013). Further, “[a]
partnership may sue and be sued in the name of the partnership.” Miss. Code Ann. § 79-13-
307(a) (Rev. 2013). In order to satisfy a judgment against a partnership from a partner’s
assets, there must also be a judgment against the individual partner. Miss. Code Ann. § 79-
13-307(c) (Rev. 2013).
¶42. The statutory provisions of the UPA are also applicable to joint ventures. Barrett, 27
10
The Uniform Partnership Act (1997) became effective on January 1, 2005. Before
January 1, 2007, the UPA applied to all partnerships formed after January 1, 2005; after
January 1, 2007, the revised Act applies to all partnerships. Miss. Code Ann. § 79-13-1205
(Rev. 2013).
17
So. 3d at 372 (¶31). As our supreme court has noted, “[a] joint venture is a single-purpose
partnership.” Id. Under the UPA, “a joint venture is liable for any penalty incurred as the
result of a wrongful act or omission, or other actionable conduct, of a joint venturer acting
in the ordinary course of business of the joint venture.” Id. (citing Miss. Code Ann. § 79-13-
305(a).
¶43. In absence of a partnership in fact, a person can still be liable if he acts as a partner
or joint venturer. Allied Steel Corp. v. Cooper, 607 So. 2d 113, 118 (Miss. 1992). Mississippi
Code Annotated section 79-13-308(a) states:
If a person, by words or conduct, purports to be a partner, or consents to being
represented by another as a partner, in a partnership or with one or more
persons not partners, the purported partner is liable to a person to whom the
representation is made, if that person, relying on the representation, enters into
a transaction with the actual or purported partnership. . . . If partnership
liability results, the purported partner is liable with respect to that liability as
if the purported partner were a partner. If no partnership liability results, the
purported partner is liable with respect to that liability jointly and severally
with any other person consenting to the representation.
¶44. In affirming the trial court’s decision to grant Lisa’s motion for a directed verdict, the
majority only considers whether Malouf presented sufficient evidence of an actual
partnership between Evans and Lisa. However, as discussed above, that is not the only test
of determining Lisa’s liability. Under section 79-13-308(a), Lisa is personally liable to
Malouf if she held herself out to be a partner (or joint venturer), by words or conduct, and
Malouf relied to his detriment on her representation. Taking the testimony Malouf presented
as true, and giving Malouf the benefit of all favorable inferences that can be drawn
18
therefrom, a reasonable juror could have found that Lisa, through words or conduct,
represented herself as Mike’s partner, and that Malouf relied on Lisa’s representation to his
detriment. Further, a reasonable juror could have found that Lisa knew or should have known
that Malouf’s boat engine had not been replaced, given her regular involvement in Lake
Harbour Marine’s activities. In dismissing Lisa as a defendant, the county court only looked
at whether Lisa was proved to be a partner and ignored Malouf’s proof of other theories of
liability. Further, the circuit court, in affirming the county court, ignored any basis of liability
on Lake Harbour Marine’s part. Instead, the circuit court found that Malouf did not present
a prima facie case of fraud or misrepresentation. The majority does not reach this issue, but
the record indicates that Malouf presented sufficient evidence to withstand Lisa’s motion for
directed verdict. Notably, the evidence showed that Lisa gave Malouf an invoice apparently
written in her handwriting that represented that Lake Harbour Marine replaced Malouf’s old
engine with a “new short block.” I would therefore reverse the judgments and remand for
a new trial in county court.
¶45. Notwithstanding the evidence of Lisa’s liability, the trial court’s judgment did not
dismiss Lake Harbour Marine as a defendant. Under section 79-13-307(a) a partnership may
be sued in the name of the partnership. Therefore, this case involved three defendants: Mike,
Lisa, and Lake Harbour Marine. Following the trial court’s dismissal of Mike without
prejudice, the trial proceeded against Lisa and Lake Harbour Marine. The trial court
determined that Lisa was not a partner. However, it did not determine that Lake Harbour
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Marine was not a partnership, nor did it specifically dismiss Lake Harbour Marine from the
suit. Instead, the trial court apparently determined that dismissing Lisa impliedly dismissed
Lake Harbour Marine from the lawsuit as well. As previously noted, the UPA states that a
partnership may be sued and be held liable independent of any partner. Malouf’s proof more
than adequately demonstrated that Lake Harbour Marine charged for work not performed.
In considering the evidence and all reasonable inferences favorable to Malouf, a reasonable
juror could have found in Malouf’s favor. As the courts below viewed the case as being
dismissed, we should reverse and remand. I respectfully dissent.
LEE, C.J., GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.
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