Smith v. Scott

655 So. 2d 582, 1995 WL 271526
CourtLouisiana Court of Appeal
DecidedMay 10, 1995
Docket26849-CA
StatusPublished
Cited by7 cases

This text of 655 So. 2d 582 (Smith v. Scott) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Scott, 655 So. 2d 582, 1995 WL 271526 (La. Ct. App. 1995).

Opinion

655 So.2d 582 (1995)

Robert R. SMITH, Plaintiff-Appellant,
v.
Thomas E. SCOTT & Anita Scott, Defendants-Appellees.

No. 26849-CA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 1995.

*583 Rellis P. Godfrey, Shreveport, for appellant.

Bobby D. Sutton, Jr., Shreveport, for appellee.

Before BROWN, WILLIAMS and STEWART, JJ.

WILLIAMS, Judge.

The plaintiff, Robert R. Smith, appeals the judgment of the trial court in favor of the defendants, Thomas E. and Anita Scott, finding that Smith had been fully compensated for the value of his share of the partnership with Thomas E. Scott. We affirm.

FACTS AND PROCEDURAL HISTORY

In May 1987, the plaintiff, Robert R. Smith, and defendant Thomas E. Scott, entered into a business arrangement to operate S & S Pawn Shop. Smith's initial investment in the business was $10,000 plus two or three new guns. Scott contributed various equipment and inventory, which he valued at $40,100. The business agreement was never committed to writing and the nature of each party's interest in the arrangement is not clear. Smith and Scott agreed that neither of them would draw a salary from the business until the pawn shop was profitable. However, Smith acknowledged that on one occasion, he wrote a check in the amount of $1,500 to himself for salary. After having been in business approximately eight and one-half months, Smith and Scott verbally agreed to end their business association retroactively effective December 31, 1987. However, they later disagreed as to the terms of this disassociation. Smith contended that Scott was to purchase his interest in the shop for $22,500. Scott maintained that he, Scott, would pay Smith $10,000, the amount of Smith's original investment. Subsequently, Scott caused two checks, one in the amount of $4,000 and one in the amount of $1,500, to be issued to Smith. Thereafter, Smith filed suit against both Scott and his wife, Anita, seeking $17,000, the alleged balance due for his interest in the partnership.

On January 24, 1990, the trial court rendered judgment in favor of Smith in the amount of $22,500, subject to credits of $7,000. On appeal,[1] this court reversed and remanded because we concluded the trial court had effectively denied Scott the opportunity to cross-examine Smith's expert witness. The remand was for the specific purpose of allowing Scott to cross-examine Smith's expert and for the presentations by either side of evidence related to that cross-examination. Subsequently, Scott applied to this court for supervisory writs and a stay order. In response, this court remanded the case for new trial before a judge of the district court assigned to the civil section, as the former trial judge had been assigned to *584 the criminal section.[2] A second trial was held in November 1992. In January 1994, the trial court ruled in favor of Scott. Smith, the plaintiff, now appeals, specifying seven errors.

DISCUSSION

Specification of Error No. 1

Smith complains that, for various reasons, our disposition of Scott's previous writ application in this case was erroneous. Requests for review of judgments of the court of appeal, including an order granting relief on an application for supervisory writs, should be made to the Louisiana Supreme Court. Supreme Court Rules, Rule X. We find no indication in the record that the plaintiff made writ application to the supreme court. Additionally, counsel for the plaintiff acknowledged during oral argument that the plaintiff made no such writ application. The plaintiff will not be heard to complain for his having failed to timely pursue the proper remedy under Louisiana law. This specification of error is disingenuous and without merit.

Specification of Error No. 2

Smith contends that the trial court erred in finding that S & S Pawn Shop was a partnership, rather than a joint venture. A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. LSA-C.C. Art. 2801. Although treated much like a partnership, a joint venture is, generally, an agreement for a limited purpose or venture. The principal difference between a partnership and a joint venture is that while a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint venture is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years. Riddle v. Simmons, 589 So.2d 89 (La.App. 2d Cir.1991), writ denied, 592 So.2d 1316 (La.1992).

Smith, in support of his argument, cites to language in a document filed by the defendants, which states the parties "entered into a joint business venture." The plaintiff's reliance on the defendants' language in the court documents is misplaced. We have previously stated that whether parties have used the word "partnership" is immaterial in determining whether their enterprise is a partnership. Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). Likewise, it is immaterial that the parties in the instant case may have referred to their business enterprise as a "joint venture."

Smith cites in further support of his argument, the fact that Scott filed a sole proprietorship tax return for 1987. Income tax returns are entitled to some evidentiary weight for the purpose of determining if a business is a partnership. Harris, supra. However, income tax returns are not dispositive. In making a determination regarding the existence or non-existence of a partnership, or a joint venture, each case must be considered on its own facts and circumstances. Harris, supra; Riddle, supra. In the instant case, the ongoing operation of a pawn shop is more closely akin to the transaction of a general business of a particular kind than to a single business transaction.

A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The record supports the trial court's finding that a partnership existed rather than a joint venture. On the showing made, we cannot say that the trial court was manifestly erroneous or clearly wrong in its determination that the business enterprise of Smith and Scott was a partnership.

Specification of Error No. 3

Smith asserts that the trial court erred in finding that there was no "meeting *585 of the minds" between the parties as to whether and for what amount Scott would purchase Smith's interest in the pawn shop. The trial court determined that the parties had no "meeting of the minds" other than the agreement that Smith would withdraw from the partnership, effective December 31, 1987.

Smith testified that when he told Scott that he wanted Scott to buy him out of the business for $22,500, Scott did not respond other than to say he would think about it. According to Smith's testimony, the next day Scott indicated that he would buy him out, however, Scott did not specify what he would pay.

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Bluebook (online)
655 So. 2d 582, 1995 WL 271526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-scott-lactapp-1995.