{ "id": 8527480, "name": "HENRY LEE WILDER, Plaintiff v. JAMES E. HOBSON, JOHN CASTLE, ERNEST O. FAIR, ALBERT R. DAWKINS, WILBERT TORRENCE, SR., EDWARD O. TRACEY, SR., ELISHA L. BOYD, WALTER D. TRACEY, WILLIE J. TABOR, HARVEY DAVIS, A. M. HASAN and CAL SMITH, JR., Individually and doing business as SAFETY TAXI, Defendants", "name_abbreviation": "Wilder v. Hobson", "decision_date": "1990-12-18", "docket_number": "No. 9019SC356", "first_page": "199", "last_page": "203", "citations": [ { "type": "official", "cite": "101 N.C. App. 199" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "127 S.E. 527", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "189 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654476 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/189/0479-01" ] }, { "cite": "262 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548180 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0236-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 59-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "pin_cites": [ { "page": "(3) and (4)" } ], "opinion_index": 0 }, { "cite": "368 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524245 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0326-01" ] }, { "cite": "298 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citing Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519614 ], "year": 1982, "pin_cites": [ { "parenthetical": "citing Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0128-01" ] }, { "cite": "330 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726019, 4722090, 4724332, 4725677, 4720721 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0604-05", "/nc/313/0604-03", "/nc/313/0604-02", "/nc/313/0604-01", "/nc/313/0604-04" ] }, { "cite": "325 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527175 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0549-01" ] }, { "cite": "68 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620681 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0040-01" ] }, { "cite": "362 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "quoting Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357856 ], "year": 1987, "pin_cites": [ { "parenthetical": "quoting Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0107-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 59-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "341 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522801 ], "year": 1986, "pin_cites": [ { "parenthetical": "citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0213-01" ] }, { "cite": "336 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519625 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0085-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-68", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 535, "char_count": 9383, "ocr_confidence": 0.737, "pagerank": { "raw": 3.691979572390528e-07, "percentile": 0.8925159343266731 }, "sha256": "d0ac219fa5ea90e997a1eac77f6e390e7aa6e01d9d7edda2c64c3faa1b982a90", "simhash": "1:67ae1dd2377f141d", "word_count": 1485 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "HENRY LEE WILDER, Plaintiff v. JAMES E. HOBSON, JOHN CASTLE, ERNEST O. FAIR, ALBERT R. DAWKINS, WILBERT TORRENCE, SR., EDWARD O. TRACEY, SR., ELISHA L. BOYD, WALTER D. TRACEY, WILLIE J. TABOR, HARVEY DAVIS, A. M. HASAN and CAL SMITH, JR., Individually and doing business as SAFETY TAXI, Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiff contends that the trial court erred in granting defendants\u2019 motions for summary judgment since a genuine issue of material fact exists whether \u201cSafety Taxi\u201d constitutes a partnership or a joint venture. Plaintiff contends that even if defendants are not engaged in a classic partnership, a question of fact exists whether defendants held themselves out to the public to be a partnership by filing a certificate of assumed name pursuant to N.C. Gen. Stat. \u00a7 66-68 and displaying the \u201cSafety Taxi\u201d sign and telephone number on their taxis. Defendants contend that summary judgment was proper because their affidavits, indicating defendants individually owned their taxis and did not share profits, negate the existence of a partnership as a matter of law.\nSummary judgment shall be rendered forthwith if the materials presented show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (1983); Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C. App. 85, 336 S.E.2d 653 (1985). A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61 (1986) (citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). In their affidavits presented to the court, defendants establish that no claim for relief exists in this case and the trial court properly granted defendants\u2019 motions for summary judgment.\nThe North Carolina Uniform Partnership Act defines a partnership as . . an association of two or more persons to carry-on as co-owners a business for profit.\u201d N.C. Gen. Stat. \u00a7 59-36(a) (1989); G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 362 S.E.2d 807 (1987) (quoting Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)). Existence of a partnership does not require an express agreement and the parties\u2019 intent to formulate a partnership can be inferred by the conduct of the parties by examining all the circumstances. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, cert. denied, 313 N.C. 604, 330 S.E.2d 612 (1985). \u201cA partnership is a combination of two or more persons of their property, effects, labor, or skill in a common business or venture, under an agreement to share the profits and losses in equal or specified proportions, and constituting each member an agent of the others in matters appertaining to the partnership and within the scope of its business.\u201d Zickgraf Hardwood Co. v. Seay, 60 N.C. App. 128, 298 S.E.2d 208 (1982) (citing Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952)). Our appellate courts have clearly held that co-ownership and sharing of any actual profits are indispensable requisites for a partnership. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399 (1988). Although sharing profits does not of itself establish a partnership, the Uniform Partnership Act emphasizes the importance of sharing profits in the existence of a partnership by mandating that the receipt by a person of a share of business profits is prima facie evidence that he is a partner. . . . N.C. Gen. Stat. \u00a7 59-37(3) and (4) (1989). Filing a partnership tax return is significant evidence of a partnership. Reddington v. Thomas, 45 N.C. App. 236, 262 S.E.2d 841 (1980).\nWe reject plaintiff\u2019s contention that materials offered opposing defendants\u2019 motions for summary judgment create a genuine issue regarding the existence of a partnership. A genuine issue is one which can be maintained by substantial evidence. Sturm, supra. Plaintiff based his claim on the theory that defendants held themselves out as a partnership or joint venture by signing a certificate of assumed name, displaying the \u201cSafety Taxi\u201d sign on their cars and sharing a common dispatcher. Plaintiff offered evidence that the defendants filed a Certificate to Transact Business Under an Assumed Name, required to be filed of all persons, partnerships or corporations doing business under an assumed name pursuant to N.C. Gen. Stat. \u00a7 66-68 (1985). Plaintiff offers no authority and we find no authority suggesting that such a certificate manifests intent to form a partnership. Instead, N.C. Gen. Stat. \u00a7 66-68 is intended to protect the public and creditors against fraud. Bank v. Murphy, 189 N.C. 479, 127 S.E. 527 (1925).\nPlaintiff also offered evidence that defendants display on their taxis a sign bearing the name \u201cSafety Taxi\u201d and its telephone number. However, defendants presented evidence negating any implication of co-ownership suggested by the display of \u201cSafety Taxi\u2019s\u201d name and telephone number. Defendants offered uncontroverted evidence that defendants individually own their vehicles, pay their own insurance, taxes and repairs. Defendants each manage their own business records. Defendants do not share each other\u2019s profits or losses. Defendants filed no joint tax return. Plaintiff presented no evidence that defendants share any profits, income, expenses, joint business property or have authority of any kind over each other. The only evidence plaintiff presented of co-ownership among defendants was the assumed name certificate.\nThe evidence presented clearly shows that \u201cSafety Taxi\u201d is merely a taxicab telephone dispatch service to which each defendant contributes a small monthly fee in order to receive dispatch services. We hold that plaintiff has failed to present substantial evidence to create a genuine issue regarding the existence of a partnership or joint venture among defendants. Therefore, we hold that the trial court correctly granted defendants\u2019 motions for summary judgment.\nIn light of the above holding, we do not reach plaintiff\u2019s contention regarding the effect of John Gilmore\u2019s covenant not to sue.\nAffirmed.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Carlton, Rhodes & Carlton, by Gary C. Rhodes, for plaintiff-appellant.", "Hancock and Hundley, by R. Darrell Hancock and Jennifer B. Flynn, for defendants-appellees.", "Caudle & Spears, P.A., by Lisa M. Grotty and Lloyd C. Caudle, for defendant-appellee Willie J. Tabor.", "Wyatt Early Harris Wheeler & Hauser, by Kim R. Bauman, for defendant-appellee Harvey Lee Davis." ], "corrections": "", "head_matter": "HENRY LEE WILDER, Plaintiff v. JAMES E. HOBSON, JOHN CASTLE, ERNEST O. FAIR, ALBERT R. DAWKINS, WILBERT TORRENCE, SR., EDWARD O. TRACEY, SR., ELISHA L. BOYD, WALTER D. TRACEY, WILLIE J. TABOR, HARVEY DAVIS, A. M. HASAN and CAL SMITH, JR., Individually and doing business as SAFETY TAXI, Defendants\nNo. 9019SC356\n(Filed 18 December 1990)\nPartnership \u00a7 1.1 (NCI3d)\u2014 personal injury \u2014 negligence imputed to partnership \u2014failure to show existence of partnership\nIn an action to recover for injuries sustained in a collision with a taxi displaying a \u201cSafety Taxi\u201d sign and telephone number, the owners of other taxis doing business as \u201cSafety Taxi\u201d were not liable for those injuries based on imputed liability pursuant to general agency and partnership law, since the evidence clearly showed that \u201cSafety Taxi\u201d was merely a taxicab telephone dispatch service to which each defendant contributed a small monthly fee in order to receive dispatch services; there was no evidence that defendants shared each other\u2019s profits or losses, filed joint tax returns, had authority of any kind over each other, or in any other way behaved as a partnership; and defendants did not hold themselves out as a partnership by signing a certificate of assumed name, displaying the \u201cSafety Taxi\u201d sign on their cars, and sharing a common dispatcher.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 995, 1084; Partnership \u00a7 648.\nAPPEAL by plaintiff from order granting defendants\u2019 motions for summary judgment and dismissing plaintiff\u2019s complaint entered 19 February 1990 in ROWAN County Superior Court by Judge William H. Helms. Heard in the Court of Appeals 24 October 1990.\nOn 2 July 1987 plaintiff Wilder was injured by a taxicab negligently driven by John Gilmore. John Gilmore\u2019s taxicab displayed the name and telephone number of \u201cSafety Taxi.\u201d Following the injury, Wilder and Gilmore reached a settlement wherein Gilmore paid Wilder the $25,000 limit of his insurance policy in exchange for a covenant not to sue Gilmore.\nPlaintiff then brought this action against defendants, the remaining drivers doing business as \u201cSafety Taxi,\u201d based on imputed liability pursuant to general agency and partnership law. In their-answers, defendants denied the existence of a partnership or joint venture. On the motions for summary judgment, defendants\u2019 forecast of evidence showed that \u201cSafety Taxi\u201d is merely a taxicab referral service to which each driver pays a monthly fee for telephone dispatch service. Each driver individually owns and is solely responsible for expenses relating to his taxi, no drivers share profits or losses, each driver insures his own taxi, each driver maintains his own business records, and no driver has authority or control over another driver.\nDefendants jointly and severally moved for summary judgment on the grounds that imputed liability was improper since no partnership or joint venture existed and, had imputed liability existed, the covenant not to sue entered into by plaintiff and John Gilmore released defendants. The trial court granted defendants\u2019 motions for summary judgment. Plaintiff appeals. .\nCarlton, Rhodes & Carlton, by Gary C. Rhodes, for plaintiff-appellant.\nHancock and Hundley, by R. Darrell Hancock and Jennifer B. Flynn, for defendants-appellees.\nCaudle & Spears, P.A., by Lisa M. Grotty and Lloyd C. Caudle, for defendant-appellee Willie J. Tabor.\nWyatt Early Harris Wheeler & Hauser, by Kim R. Bauman, for defendant-appellee Harvey Lee Davis." }, "file_name": "0199-01", "first_page_order": 227, "last_page_order": 231 }