Opinion
14-P-1147
06-01-2015
KAREN M. DILIEGRO v. MARK A. PETRIGNO.
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, Karen M. DiLiegro, filed a complaint in the Superior Court seeking "a judgment of dissolution of the partnership" as to a business she jointly owns with the defendant, Mark A. Petrigno, and other related relief. The parties filed cross motions for summary judgment; the judge denied the plaintiff's motion and allowed the defendant's motion. This appeal followed. We affirm.
"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment has entered. Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 n.4 (2010). "Our review is de novo." Coviello v. Richardson, 76 Mass. App. Ct. 603, 607 (2010) (quotation omitted).
The record establishes the following undisputed facts. In 1999, the parties divorced after an eight-year marriage. As part of the divorce, they entered into a separation agreement (agreement) that survived the judgment of divorce. The agreement includes several provisions detailing the rights and responsibilities of each party in relation to a business known as The Corner Store (store). In particular, the agreement provides that the parties jointly own the store, that the plaintiff is to be paid as her share of profit a weekly sum of $500, and that the defendant "shall have the exclusive management and operating control of the business" and be entitled to any losses. After the divorce, the plaintiff has had no part in the operation or management of the store, with the exception of a brief period of time during which she did the payroll. Until 2011, the parties operated under the agreement without apparent conflict.
By letter dated November 29, 2011, the plaintiff's attorney informed the defendant of the plaintiff's status as a "partner in the business," and demanded "an accounting for all benefits and profits of the partnership."
On January 13, 2012, the plaintiff filed a verified complaint in the Superior Court alleging that she is a partner in the store, and requesting, inter alia, an accounting and dissolution of the partnership. In granting the defendant's motion for summary judgment, the judge concluded that, under the unambiguous terms of the agreement and the undisputed facts, the parties' agreement did not constitute a partnership. We agree.
Under Massachusetts law, a partnership is defined as "an association of two or more persons to carry on as co-owners a business for profit." G. L. c. 108A, § 6(1), as amended by St. 1995, c. 281, § 5. See Boyer v. Bowles, 310 Mass. 134, 138 (1941). The factors to be considered in determining the existence of a partnership include, among others, "(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, 691 (1992), citing Shain Inv. Co. v. Cohen, 15 Mass. App. Ct. 4, 9 (1982).
None of these factors are present in this case. The agreement is devoid of language expressly stating the parties' intent to form a partnership. Although the receipt of $500 per week by the plaintiff is some evidence of a partnership, we agree with the judge that the fixed nature of the payment "makes it substantively different from a distribution of profits." Rather, the payment suggests wages in exchange for the plaintiff's preparation of the payroll. See G. L. c. 108A, § 7(4). The agreement also expressly states that the defendant "shall be entitled to any losses incurred in the [store]." Further, it is undisputed that the plaintiff played no part in the operation or management of the store. See Ryder v. Wilcox, 103 Mass. 24, 27-28 (1869).
See G. L. c. 108A, § 7(4), inserted by St. 1922, c. 486, § 1 (receipt of a share of profits "is prima facie evidence" of partnership, except under certain instances, including payment as wages, payment toward a debt, or payment as "an annuity to a widow or representative of a deceased partner").
On appeal, the plaintiff suggests that there are ambiguities in the agreement as to the parties' intent to form a partnership. The judge noted the absence of an offer of extrinsic evidence, and there is none before us in the record. We are therefore unable to address the issue.
Because no partnership existed, as a matter of law, summary judgment was properly granted in favor of the defendant.
The defendant contends the plaintiff's appeal is frivolous. In the exercise of our discretion we decline to award attorney's fees and costs.
Judgment affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.