Summers v. A-1 Cash, Inc.

911 So. 2d 975, 2005 WL 2357886
CourtCourt of Appeals of Mississippi
DecidedSeptember 27, 2005
Docket2004-CA-00188-COA
StatusPublished
Cited by2 cases

This text of 911 So. 2d 975 (Summers v. A-1 Cash, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summers v. A-1 Cash, Inc., 911 So. 2d 975, 2005 WL 2357886 (Mich. Ct. App. 2005).

Opinion

911 So.2d 975 (2005)

Clinton SUMMERS, Appellant
v.
A-1 CASH, INC. and Mickey Russell, Appellees.

No. 2004-CA-00188-COA.

Court of Appeals of Mississippi.

September 27, 2005.

*976 R. Andrew Foxworth, Columbia, attorney for appellant.

Ray T. Price, Hattiesburg, attorney for appellees.

Before BRIDGES, P.J., GRIFFIS and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Clinton Summers appeals the decision of the Marion County Chancery Court, challenging the court's finding that no partnership existed between him and Mickey Russell with regard to A-1 Cash, Inc., a check-cashing business. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Clinton Summers and Mickey Russell met as business colleagues in 1989 and continued to work together as co-employees in a number of businesses until the spring of 1994. In April of 1994, Summers and Russell met to discuss a plan to open a check-cashing business in Columbia, Mississippi. Summers and his wife testified that, under the plan, Russell would fund the business while Summers would provide labor and day-to-day oversight of the business. Summers and his wife also stated that a verbal partnership agreement existed under which Summers and Russell *977 would split ownership of the business and all profits equally after Russell recouped his start-up capital of $20,000. Russell, however, testified that no partnership agreement existed, and that he merely offered Summers a position as an employee-manager of the proposed business. Both parties testified that under the plan, Summers was to be paid a salary of $400 per week until Russell recouped his initial investment, and that afterward Summers would receive a percentage of the profits. Summers said the agreement was that he would receive fifty percent of all profits; Russell stated that he offered Summers forty percent of the profits, but over time raised Summers's share to fifty percent.

¶ 3. Upon opening the business — named Cash Advance — in May of 1994, the parties established a bank account for the business at Magnolia Federal Bank (now Union Planters Bank) in the name of "Clinton Summers or Mickey Russell JTROS DBA Cash Advance." The style of the account indicated that the parties held the account as joint tenants with the right of survivorship. The tax identification number associated with the account was Summers's social security number. In addition, the parties established telephone and electricity services for the business; these accounts were opened in Summers's individual name. The business quickly became profitable, and by November of 1995 Russell had recouped his initial investment. From that point on, Summers received forty percent and then fifty percent of the business's profits.

¶ 4. The business's success spurred Russell and Summers to open locations in Brookhaven and McComb, and Summers's duties expanded to the oversight of all three branches. Summers and Russell split the profits from all three locations equally. On July 14, 1998, Russell formed a corporation known as A-1 Cash, Inc., naming himself as the sole officer and director, and issuing to himself all shares of stock in the corporation. The bank accounts were re-titled in the name of A-1 Cash, Inc., and a corporate bank account was established at Union Planters Bank to handle the business's day-to-day check-cashing operations. The signature cards for the corporate account indicated Summers and Russell as being co-owners of A-1 Cash. Another account was also opened at Union Planters Bank and titled in the name of "A-1 Cash, Mickey W. Russell and Clinton Summers." Profits from all three branches were deposited into this account, and after employee wages were deducted from the account, Russell and Summers shared the remainder of the money equally. Russell and Summers were both considered employees of A-1 Cash for income tax purposes, and both reported their income on IRS W-2 forms issued by A-1 Cash, Inc.

¶ 5. In March of 2000, Russell prepared a document entitled "Management Personnel." The document has the heading of "A-1 Cash, Inc.," and lists Russell as holding the positions of president, secretary and treasurer. Summers is listed as manager of the Columbia, McComb and Brookhaven locations. Both parties signed the document: Russell signed his name next to the word "owner," and Summers signed his name next to the word "manager." Additionally, documents from the business's workers' compensation insurance policy indicated that Russell was the president of the corporation and that Summers held the position of secretary. Neither Russell nor Summers was covered by the policy.

¶ 6. The business relationship between Summers and Russell continued until January of 2002, when Russell entered the Columbia location and asked Summers to leave. One month later, Summers filed a *978 complaint in the Marion County Chancery Court to dissolve the partnership and for an accounting. The court bifurcated the trial, first proceeding without a jury to determine whether a partnership existed between Summers and Russell, and, if so, when the partnership ceased to exist. Finding that the parties lacked sufficient intent to form a partnership, that Summers did not exercise sufficient control over the business to be considered a partner and that the profits distributed to Summers were actually wages, the chancellor held that a partnership did not exist between the parties with regard to Cash Advance and A-1 Cash, Inc. Aggrieved, Summers timely appealed to this Court.

¶ 7. On appeal, Summers claims that (1) the chancellor was manifestly wrong in his finding that there was no intent by Summers and Russell to form a partnership; (2) the chancellor was manifestly wrong in finding that Summers failed to exercise control over the business sufficient to indicate a partnership interest in the business; and (3) the chancellor was manifestly wrong in finding that profits from the business paid to Summers were in the form of wages and that thus Summers did not share in the losses and liabilities of the business. Finding that the chancellor applied the correct legal standards and that the evidence, while conflicting, supports the chancellor's determinations of fact, we affirm the lower court's ruling that no partnership existed between Russell and Summers.

STANDARD OF REVIEW

¶ 8. "In reviewing the factual findings of a chancellor sitting without a jury, we apply the substantial evidence standard. We will not disturb those findings which are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Mississippi Gaming Comm'n v. Imperial Palace of Mississippi, Inc., 751 So.2d 1025, 1027 (¶ 8) (Miss.1999) (citing Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204 (¶ 15) (Miss.1998)).

ANALYSIS

¶ 9. Section 79-12-11 of the Mississippi Code defines "partnership" as "an association of two (2) or more persons to carry on as co-owners a business for profit...." Miss.Code Ann. § 79-12-11 (Rev.2001). Additionally, section 79-12-13 sets forth the guidelines for determining whether a partnership exists. It reads:

In determining whether a partnership exists, these rules shall apply:
(1) Except as provided by section 79-12-31 persons who are not partners as to each other are not partners as to third persons.

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Bluebook (online)
911 So. 2d 975, 2005 WL 2357886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summers-v-a-1-cash-inc-missctapp-2005.