Opinion
15-P-836
03-25-2016
BEACON ELECTRICAL DISTRIBUTORS, INC. v. WILLIAM A. WAITE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Beacon Electrical Distributors, Inc. (Beacon), sued the defendant, William A. Waite, to obtain payment for goods sold to William's father, Carl A. Waite. Beacon claims that William and Carl, both licensed journeyman electricians, worked as partners and, therefore, William is jointly and severally liable in contract for partnership debt incurred by Carl. On cross motions for summary judgment, a judge of the Superior Court concluded that no partnership ever existed between Carl and William and judgment entered in favor of William. The judge also denied Beacon's motion to amend the judgment and for reconsideration. Beacon appeals. We affirm.
Because William A. Waite and his father, Carl A. Waite, share a surname, we will refer to them hereafter by their first names to avoid confusion.
In 2012, Beacon sued Carl, individually and solely. In 2013, after Carl received a discharge in bankruptcy, Beacon amended its complaint to include William, alleging that William was Carl's business partner. Carl died in 2014.
Standard of review. "Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law." Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014). We review a grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Discussion. Beacon contends that when Carl and William worked together as electrical contractors from 1993 through 2013 under the business name, "Carl A. Waite Electrician," Carl and William were partners, that the Beacon account debt incurred by Carl was partnership debt, and that as such, William is liable for the outstanding balance. William denies that he was ever partners with his father.
Under G. L. c. 108A, § 6(1), as amended by St. 1995, c. 281, § 5, a partnership is defined as "an association of two or more persons to carry on as co-owners a business for profit." Factors that may be considered in determining the existence or nonexistence of a partnership include "(1) an agreement by the parties manifesting their intention to associate in a partnership, (2) a sharing by the parties of profits and losses, and (3) participation by the parties in the control or management of the enterprise." Fenton v. Bryan, 33 Mass. App. Ct. 688, 690-691 (1992). The undisputed facts establish that Carl and William were never partners.
Carl and William worked together as electrical contractors under the name, Carl A. Waite Electrician (company or business), from about 1986 through the end of 2013. Both men held Massachusetts journeyman electrician licenses. After 1993, William never engaged in any other regular employment. Carl and William understood and intended that William work for Carl as an employee although Carl did not supervise William's day-to-day work. Carl reported William as an employee on the company's tax returns.
Carl A. Waite Electrician is an unincorporated business.
Carl and William each used a company truck that had a Carl A. Waite Electrician logo, which included only Carl's electrician's license number. Carl held title to both company vehicles and paid all maintenance, fuel, and related costs. Carl was also solely responsible for the purchase and maintenance of any tools, materials, or supplies used in the business. From 2013 through 2014, the business maintained a Web site with a domain name of www.waiteelectric.com that listed both Carl and William as contacts and provided separate telephone numbers for each.
Carl operated the business out of a home office and he was exclusively responsible for daily administrative tasks. Carl maintained a checking account for the business and listed himself, his wife, and William as signatories.
In 2012 and 2013, Carl paid William a weekly salary of $750. William did not receive any other compensation other than his weekly wage to compensate him for the time he worked.
In 1996, Carl applied for credit from Beacon, a wholesale electrical supply company, by completing and submitting a written "Application for Credit" form. Carl listed Carl A. Waite Electrician as the company name and indicated he was applying for credit as an "individual." William's name did not appear anywhere on the application. William knew that Carl maintained the Beacon account; William purchased supplies there many times but Carl received all regular monthly statements. In October, 2012, Carl's account with Beacon was delinquent with an outstanding balance of $50,068.90 for purchases made from October, 2011, through September, 2012.
Carl filed for bankruptcy protection in October, 2013, and subsequently received a discharge that included any obligation by Carl to repay the balance owed on his account with Beacon.
Beacon argues that William is liable for the outstanding balance on Carl's account because William and Carl were business partners. We disagree. There is no genuine issue of material fact as to whether a partnership existed. See Barron, 469 Mass. at 804. Both Carl and William testified in their depositions that they did not intend to be partners. Contrast Fenton, 33 Mass. App. Ct. at 691. Further, there is no evidence in the summary judgment record to support Beacon's claim that Carl and William shared in the business's profits and losses. See ibid. Instead, the record shows that although Carl's net income had decreased from $31,000 in 2011 to $19,114 in 2012, representing a loss, William continued to receive the same weekly $750 paycheck. Lastly, nothing in the record suggests William ever exercised any control or management over the business. See ibid. Therefore, the judge did not err in denying Beacon's motion for summary judgment and allowing William's motion for summary judgment. We affirm the judgment and the order denying Beacon's motion to amend the judgment and for reconsideration.
In his brief, William seeks "costs and attorneys' fees upon a frivolous appeal." Although we find no merit to Beacon's argument, William fails to include any legal citation or argument to support this request as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Therefore, we decline to reach this issue.
So ordered.
By the Court (Kafker, C.J., Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.