McArtan v Barnum, (02-1352) 07/01/2003

Appeal by plaintiff from order entered 2 May 2002 by Judge Carl L. Tilghman in Superior Court, Carteret County. Heard in the Court of Appeals 30 June 2003.

Donald J. Dunn for plaintiff-appellant.

Beswick, Marquardt & Goines, P.A., by George W. Beswick, for defendant-appellee.

WYNN, Judge.

    By this appeal, plaintiff, K. Brian McArtan, asks: Did the trial court erroneously conclude a partnership did not exist between plaintiff and defendant? We uphold the trial court's determination that a partnership did not exist between the parties.     The underlying facts tend to show that on 19 November 1999, Mr. McArtan filed a complaint against defendant, R. Lewis Barnum, D.C., in which he sought to recover monetary damages for breach of contract, constructive fraud, and unfair and deceptive trade practices. He also sought a partnership accounting and punitive damages. The trial court bifurcated the issues, and heard the issue of whether a partnership existed between the parties withouta jury on 23 April 2002.
    On 2 May 2002, the trial court entered its memorandum opinion and order in which it found the following facts:
        7. A separate checking account was set up under the name of Coastal Rehabilitation Center by the Defendant who was the only authorized signature authority and was a division of the Defendant's Chiropractic business.

        8. Several attempts were made by the Plaintiff and Defendant to reach an agreement regarding the formation of the business. Both parties were under the impression that there was some problem regarding the formation of a partnership between a licensed chiropractor and one who was not so licensed and that such a partnership could not be formed until such time as they could figure out the proper way to do it. They [sic] parties also recognized that there was a problem with “self-referral” between the Defendant's Chiropractic Clinic and the Coastal Rehabilitation Center that had to be resolved before any agreement could be reached.

        9. The Defendant purchased and financed equipment to be used by the Plaintiff. The parties agreed to move the CRC (Coastal Rehabilitation Center) on the premises of the Defendant's Chiropractic Clinic.

        10. In the beginning, the Plaintiff received payment on an hourly basis for his services that were billed and paid through the Defendant's Chiropractic Clinic. In June of 1994, the CRC was moved on the Defendant's premises, some equipment was purchased by the Defendant on his credit and payment was made out of receipts from CRC account. At some point later the Plaintiff received ten percent of the receipts for living expenses rather than on an hourly basis. In 1995 and 1996 CRC began to look more successful and in December of 1996, the Plaintiff proposed a written partnership agreement for CRC to Defendant . . . .

        11. In response, the Defendant provided aproposed written salary agreement dated April 8, 1997. . . . That agreement was not executed, but the Plaintiff continued working at CRC and received as payment the sum of $25,000[] plus 50% of the profits for the year of 1997. These sums were paid on a monthly basis on checks drawn on the CRC account.

             . . . .

        13. The Plaintiff received W-2 forms and 1099's for sums received from CRC. These tax notices were sent by the Defendant Robert O. Barnum D.C.P.A. using his taxpayer identification number. No partnership tax returns were ever filed by the parties for any of the years involved with the operation of CRC.

    The trial court concluded that “Plaintiff was paid as an employee[,]” that “[i]t has not been established by the greater weight of the evidence that there was ever a meeting of the minds as to the formation [of] a partnership[,]” and “that the greater weight of the evidence does not show the existence of a partnership between the Plaintiff and the Defendant.” From the trial court's order denying his claims for breach of contract, constructive fraud, unfair trade practice and a partnership accounting, plaintiff appeals.
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    On appeal, plaintiff argues substantial evidence supports his contention that a partnership existed between the parties. He asserts the trial court erroneously found that he was an employee, and that the parties could not legally form a partnership. We disagree.
    “[O]n appeal the standard of review for a decision rendered ina non-jury trial is whether there existed competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.” G. R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 110, 362 S.E.2d 807, 810 (1987). Although plaintiff lists four of his assignments of error as being pertinent to the argument he presents on appeal, see N.C.R. App. P. 28(b)(5), he does not assign error to any particular findings of fact in those four assignments of error. As a result, the trial court's findings of fact are “presumed to be supported by competent evidence and are binding on appeal.” Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982). In our discretion, we have nevertheless reviewed the record and have determined that competent evidence supports those findings of fact.
    “A partnership is a combination of two or more persons, their property, labor, or skill in a common business or venture under an agreement to share profits or losses and where each party to the agreement stands as an agent to the other and the business.” G. R. Little Agency, Inc., 88 N.C. App. at 110, 362 S.E.2d at 810; see also N.C. Gen. Stat. § 59-36(a) (2001). In determining whether a partnership exists and whether the parties are co-owners, the fact finder must examine all of the circumstances. Peed v. Peed, 72 N.C. App. 549, 553, 325 S.E.2d 275, 279, cert. denied, 313 N.C. 604, 330 S.E.2d 612 (1985).
    The trial court found that the parties made several attempts to reach an agreement, but “both parties were under the impressionthat there was some problem regarding the formation of a partnership between a licensed chiropractor and one who was not so licensed and that such a partnership could not be formed until such time as they could figure out the proper way to do it.” In response to a written partnership agreement proposed by plaintiff in December of 1996, defendant provided a proposed written salary agreement in April of 1997 in which plaintiff would receive $25,000.00 plus 50% of the profits for 1997. Plaintiff received W-2 and 1099 forms sent by Robert O. Barnum D.C., P.A., and the parties never filed a partnership tax return during the operation of Coastal Rehabilitation Center.
    The only apparent indicium of partnership is plaintiff's receipt of a share of the profits. While “[t]he receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, . . . no such inference shall be drawn if such profits were received in payment . . . [a]s wages of an employee . . . .” N.C. Gen. Stat. § 59-37 (2001). Although plaintiff received a share of the profits, the trial court's findings of fact support its conclusion that plaintiff received such payment as an employee. The trial court's findings of fact support its conclusion that no partnership existed between the parties. Accordingly, plaintiff's argument is overruled.
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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