An amended complaint was filed on June 29, 2004. 

1

 By Order of September 29 2006, Bill Koeneman and Bill Koeneman Construction Company were

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voluntarily nonsuited, and are no longer parties to this lawsuit, or this appeal.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 21, 2010 Session

SHERRY TANNER v. WHITECO, L.P. and ORANGECO, L.P.

Direct Appeal from the Chancery Court for Shelby County

No. CH-04-1248-2 Arnold B. Goldin, Judge

No. W2009-01265-COA-R3-CV - Filed May 17, 2010

This case involves the question of whether Appellee entities are partnerships under

Tennessee law. Appellant appeals the trial court’s order, which found that Appellee entities

were not partnerships. Finding no error, we affirm.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J.,

and HOLLY M. KIRBY, J., joined.

Kendra H. Armstrong, Cordova, Tennessee, for the appellant, Sherry Tanner.

James M. Hivner, Memphis, Tennessee, for the appellees, Whiteco, L.P. and Orangeco, L.P.

OPINION

On June 28, 2004, Appellant Sherry Tanner (“Ms. Tanner”) filed a complaint and

request for restraining order in the Shelby County Chancery Court. The defendants named 1

in the complaint were Norman Vann Thomas, Sr., Bill Koeneman, Bill Koeneman

Construction Company, L.L.C., Whiteco Limited Partnership, and Orangeco Limited

Partnership. By her complaint, Ms. Tanner sought enforcement of a partnership agreement 2

and a trust agreement. Specifically, Ms. Tanner averred:

1. On July 17, 1998, [Ms. Tanner] entered into a general
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partnership agreement with...Orangeco, under the name of

Destin Partnership....

2. Destin Partnership was organized to develop and market

residential real property. Pursuant to the Destin Partnership

Agreement, [Ms. Tanner] was to receive a percentage of income

which...Orangeco received from the sale of real property owned

jointly by Defendants....

3. On June 29, 1999...Whiteco entered into a trust agreement

with [Ms. Tanner], which transferred into a trust for the equal

benefit of [Ms. Tanner] and...Whiteco a fifty (50%) percent

interest in Brownsville-St. Elmo Shopping Center, L.L.C.....

* * *

5. Defendants, Norman Vann Thomas, Sr., Orangeco, and

Whiteco have failed and refused to fully perform under the

Destin Partnership Agreement and have only paid [Ms. Tanner]

a small portion of the money due to her under the Destin

Partnership Agreement. Specifically, [Ms. Tanner] has received

less than one hundred thousand dollars ($100,000.00) of the

money due and owing to her under the Destin Partnership

Agreement and the trust agreement. Plaintiff believes that she

is owed over one million dollars....

Norman Vann Thomas, Sr. was a resident of Shelby County, and had four children:

Norman Vann Thomas, Jr., Catherine Maness, Elizabeth Thomas, and Robert Thomas. On

July 16, 1998, Norman Vann Thomas, Sr. filed a certificate of limited partnership for

Orangeco, L.P. with the Tennessee Secretary of State. Sometime after the filing of the

certificate for Orangeco, Norman Vann Thomas, Sr. requested his daughter Catherine

Maness (who worked for her father) to place the Orangeco certificate in the file cabinet, and

advised her that he was doing estate planning and that she and her siblings had an interest in

the limited partnership. On December 30, 1998, Norman Vann Thomas, Sr. filed a certificate

of limited partnership for Whiteco, L.P. with the Tennessee Secretary of State. As with the

Orangeco certificate, Norman Vann Thomas, Sr. also asked his daughter to file the Whiteco,

certificate, and indicated to her that the children also had an interest in Whiteco. 

Norman Vann Thomas, Sr. died on July 10, 2007. Prior to their father’s death, the

record indicates that none of Norman Vann Thomas, Sr.’s children had any dealings with
 Orangeco, L.P. and Whiteco, L.P. are the sole Appellees in this appeal. 3

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Orangeco, or with Whiteco. However, after Norman Vann Thomas, Sr.’s death, a check for

$100,000.00 was written to attorney Steve Vescovo, as escrow agent for Orangeco. This

amount was drawn from the account of Tulip Creek, L.L.C., and each of the Thomas children

signed a receipt and waiver in which they acknowledged being interest holders in Orangeco,

and in Whiteco. Each of the children acknowledged that the funds would be used to

reimburse funeral expenses incurred by Robert Thomas for his father’s funeral. On or about

August 15, 2007, Robert Thomas received a check from the law firm of Steve Vescovo in

the amount of $15,000 as reimbursement.

On November 1, 2007, a suggestion of death was filed with the trial court. By consent

order of January 17, 2008, the Estate of Norman Vann Thomas, Sr. was substituted as a

party-defendant. Robert Thomas was named as the administrator of his father’s estate and,

on January 24, 2008, he filed an answer on behalf of the Estate. On the same day, Whiteco,

and Orangeco also filed a joint answer. On November 12, 2008, the Estate filed a motion to

dismiss for lack of subject-matter jurisdiction. Specifically, the Estate averred that the trial

court lacked jurisdiction due to Ms. Tanner’s alleged failure to revive the lawsuit in

accordance with Tenn. Code Ann. §30-2-320. By Order of December 5, 2008, the Estate of

Norman Vann Thomas, Sr. was voluntarily nonsuited. Subsequently, Orangeco and Whiteco

filed a motion to dismiss, which motion was denied by Order of March 16, 2009. On the 3

same day, the trial court held an evidentiary hearing to determine whether the remaining

defendants, Orangeco and Whiteco, were valid partnerships under Tennessee law and,

specifically, whether Norman Vann Thomas, Sr.’s children were partners in either of these

entities. Following this hearing, on March 28, 2009, the trial court entered its final order,

which order provides, in relevant part, as follows:

[Ms. Tanner] alleges that Norman Vann Thomas, Sr. was

in partnership with his children.... At the hearing on March 16,

2009, [Ms. Tanner] presented no testimony to this Court proving

a written partnership agreement or an oral partnership

agreement. [Ms. Tanner] asks this Court to imply the existence

of a partnership based on the factual evidence presented to the

Court. “[T]he existence of a partnership may be implied from

the circumstances where it appears that the individuals involved

have entered into a business relationship for profit, combining

their property, labor, skill, experience, or money.” Bass v. Bass,

814 S.W.2d 38, 41 (Tenn. 1991).

The parties do not dispute that Norman Vann Thomas, Sr.
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was a partner in Orangeco, L.P. and Whiteco, L.P. The only

question then is whether any of Mr. Thomas’ children were

partners in these ventures. The evidence is that during his

lifetime, the children of Norman Vann Thomas, Sr. took no

actions that would suggest that they were partners with their

father. Catherine Manness was advised by her father of the

existence of the partnerships and that he was doing estate

planning. After their father’s death, at which time the children

believed they were the beneficiaries of his estate, the children

signed a document which reflected that they were “interest

holders” in Orangeco, L.P. and Whiteco, L.P. Even the attorney

who drafted the document did not refer to them as partners.

This Court does not have authority to create a partnership

where one does not exist. Under the totality of the

circumstances, the Court finds that based on the evidence

presented at the evidentiary hearing on March 16, 2009, this

Court has no evidence to preponderate that the Defendants,

Orangeco Limited Partnership and Whiteco Limited Partnership

were Tennessee partnerships. The lawsuit is hereby dismissed.

On April 24, 2009, Ms. Tanner filed a motion, asking the court to make additional

findings of fact or to alter or amend its judgment. In response, the trial court entered an

amendment to its final order on May 11, 2009. The relevant portion of the amendment

provides:

Based upon the evidence presented, the Court finds that

none of the children of Norman Vann Thomas, Sr. were limited

partners in either Whiteco, L.P. or Orangeco, L.P., and that there

were no other partners in either of these alleged partnerships

besides Norman Vann Thomas, Sr. As such, neither Orangeco,

L.P. nor Whiteco, L.P. were limited partnerships pursuant to

Tennessee law, as there cannot be a partnership where only one

person is involved. Tenn. Code Ann. §61-2-101(8).

Ms. Tanner appeals and raises two issues for review as stated in her brief:

1. Whether the trial court erred in finding that no limited

partnership existed?
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2. Whether the trial court erred in finding that Robert Thomas,

Norman Vann Thomas, Jr., Elizabeth Thomas, and Catherine

Maness were not limited liability partners in Whiteco, L.P. or

Orangeco, L.P.?

Because this case was tried by the court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial

court. Unless the evidence preponderates against the findings, we must affirm, absent error

of law. See Tenn. R. App. P. 13(d). With respect to the trial court's conclusions on matters

of law or on mixed questions of fact and law, however, our review is de novo with no

presumption of correctness. See Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn.2000);

Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.1996); Tenn. R. App. P. 13(d).

It is also well settled that this Court's review is limited to the appellate record and it

is incumbent upon the appellant to provide a record that is adequate for a meaningful review.

Tenn. R. App. P. 24(b). Here, the record consists only of the technical record. There is

neither a transcript, nor a Tenn. R. App. P. 24(c) statement of the evidence. As this Court has

often stated, “in the absence of a transcript or statement of the evidence, we must

conclusively presume that every fact admissible under the pleadings was found or should

have been found favorably to the appellee.” In re: Rockwell, 673 S.W.2d 512, 516 (Tenn.

Ct. App.1983) (citing Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308 (1949); Kyritsis v.

Vieron, 53 Tenn. App. 336, 382 S.W.2d 553 (1964)).

Because there is no transcript, nor a Tenn. R. App. P. 24(c), this Court must

conclusively presume the following, relevant facts as found by the trial court in its final

order: 

On July 16, 1998, Norman Vann Thomas, Sr. had filed

with the Secretary of State of Tennessee a Certificate of Limited

Partnership for Orangeco, L.P..... Sometime after the

filing...Norman Vann Thomas, Sr. requested Catherine Maness

to place the certificate in the filing cabinet and advised her that

he was doing estate planning and that she and her siblings had

an interest in the limited partnership. On December 30, 1998,

Norman Vann Thomas, Sr. had filed with the Secretary of State

of Tennessee a Certificate of Limited Partnership for Whiteco,

L.P. Norman Vann Thomas, Sr. requested Catherine Maness to

place the certificate in the filing cabinet and again advised her

that he was doing estate planning and that she and her siblings

had an interest in the limited partnership. She had no further
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discussions with her father concerning Orangeco, L.P. or

Whiteco, L.P.

Prior to the death of Norman Vann Thomas, Sr., [none of

his children] had any relationship to Orangeco, L.P. or Whiteco,

L.P. After the death of Norman Vann Thomas, Sr., a check was

written [to the] escrow agent for Orangeco, L.P..... [Each of

Norman Vann Thomas, Sr.’s children] signed a receipt and

waiver on or about July 31, 2007 in which they acknowledged

being interest holders in Orangeco, L.P. and Whiteco, L.P.

[Each of the children] understood that the funds would be used

to reimburse Robert Thomas for his father’s funeral. Robert

Thomas received a check...in the amount of $15,000 on August

15, 2007 as reimbursement for the funeral expenses. These

funds were deposited into his personal bank account.... No other

evidence was presented to the Court.

* * *

After their father’s death, at which time the children believed

they were the beneficiaries of his estate, the children signed a

document which reflected that they were “interest holders” in

Orangeco, L.P. and Whiteco, L.P. Even the attorney who

drafted the document did not refer to them as partners.

Based upon these findings of fact, the trial court reached the legal conclusion that

Norman Vann Thomas, Sr.’s children were not partners in either Orangeco, or in Whiteco.

 In its amendment to the final order, the court specifically found that neither Orangeco, nor

Whiteco were actual partnerships. This conclusion of law was based upon the trial court’s

factual finding that “there were no other partners in either [Whiteco or Orangeco] besides

Norman Vann Thomas, Sr. 

The Tennessee Revised Uniform Limited Partnership Act, Tenn. Code Ann. §61-2-

101 et seq. (the “Act”) sets out the requirements for formation of a limited partnership in

Tennessee. It is well settled that “people wanting to form a limited partnership cannot just

stumble into one. The statutory requirements for becoming a limited partner are significant;

the benefit of limited liability exacts a price. ‘Generally, limited partnerships are creatures

of statute, and statutory compliance establishes their existence.’” In Re Taylor & Assoc.,

L.P., 249 B.R. 431, 467 (E.D. Tenn.1997) (quoting Hayes v. FPI Nursery Partners 1984-I,

No. 90-15224, 1991 WL 103447, at *3 (9th Cir. June 11, 1991)). Pursuant to the statutory
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scheme, formation of a limited partnership requires several actions: (1) the filing of a

properly executed certificate with the Secretary of State, Tenn. Code Ann. §61-2-201; (2) the

existence of one or more general partners and one or more limited partners, Tenn. Code Ann.

§61-2-101(8); and (3) an agreement between the partners, In Re: Estate of Threefoot, No.

W2005-02942, 2006 WL 3114147, *4(Tenn. Ct. App. Nov. 3, 2006). In the instant case, it

is undisputed that Norman Vann Thomas, Sr. filed certificates of limited partnership for both

Orangeco and Whiteco with the Secretary of State. However, as set out above, filing is only

one of the criteria for creating a partnership. Here, it is the second and third criteria that were

not met.

The Existence of One or More Limited Partners

Tenn. Code Ann. §61-1-101(6) defines a “partnership” as “[a]n association of two (2)

or more persons to carry on as co-owners of a business or other undertaking for profit....” 

Likewise, Tenn. Code Ann. §61-2-101(8) defines “limited partnership” and “domestic

limited partnership” as “a partnership formed by two (2) or more persons under the laws of

the state of Tennessee, and having one (1) or more general partners and one (1) or more

limited partners....” By its definition, therefore, a partnership requires two or more persons

(or entities). From the trial court’s findings, it appears that Ms. Tanner did not present

evidence to establish that anyone, other than Norman Vann Thomas, Sr. or his children, were

partners in either Orangeco or Whiteco. As set out in its order, the trial court found that

neither Orangeco, nor Whiteco were partnerships because no one other than Norman Vann

Thomas, Sr. was involved in either entity.

Agreement Between the Parties

A partnership agreement is “... any agreement, written or oral, of the partners as to the

affairs of a limited partnership and the conduct of its business.” Tenn Code Ann. §

61-2-101(11). “Although [the Act ]does not require a written partnership agreement, see

Tenn. Code Ann. § 61-2-201(b), ‘[the Act] does implicitly presume that a limited partnership

will operate from some kind of agreement or understanding between the partners.’” In re

Estate of Threefoot, No. W2005-02942-COA-R3-CV, 2006 WL 3114147, *4 (Tenn. Ct.

App., Nov. 3, 2006) (quoting In Re Taylor & Assoc., L.P., 249 B.R. 431, 443 (E.D.

Tenn.1997)). While a partnership may be established by showing evidence of a written

partnership agreement or of an oral partnership agreement, where neither exists, a court may

imply the existence of a partnership. Bass v. Bass, 814 S.W.2d 38, 41 n. 3 (quoting 59A Am.

Jur. 2d, Partnership, §152 (1987)). As noted by the Taylor Court:

It is axiomatic that business associates, whether joint venturers,

partners, or limited partners, to a minimum degree jointly agree
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to and understand the purpose, intent, and goal of their business

relationship. Indeed, the partners of a limited partnership must

agree “as to the affairs of a limited partnership and the conduct

of its business.” See [T.C.A.] § 61-2-101(11) (defining a

partnership agreement).

In Re Taylor & Assoc., L.P ., 249 B.R. 431, at 443. 

In the instant case, Ms. Tanner provided no evidence of a written or oral partnership

agreement, and the court found no evidence of a written or oral partnership agreement for

Orangeco or Whiteco. These findings are conclusive; therefore, if a partnership exists in this

case, it must be found by inference. “[T]he existence of a partnership may be implied from

the circumstances where it appears that the individuals have entered into a business

relationship for profit, combining their property, labor, skill, experience, or money.” Bass,

814 S.W.2d at 41. The burden of proof of the existence of a partnership is on the party who

alleges the partnership. Mullins v. Evans, 308 S.W.2d 494, 498 (Tenn. Ct. App.1957).

Moreover, clear and convincing evidence is required to establish an implied partnership.

Montgomery v. Montgomery, 181 S.W.3d 720, 726 (Tenn. Ct. App. 2005). 

Ms. Tanner asked the trial court to imply that Orangeco and Whiteco were

partnerships between Norman Vann Thomas, Sr. and his children based solely upon the

evidence previously stated. The trial court refused to make such an inference, and Ms.

Tanner now asks this Court to reverse the trial court’s decision based upon these same facts.

Turning to the facts, it appears that Ms. Tanner’s argument for a partnership between

Norman Vann Thomas, Sr. and his children is based upon three actions: (1) the filing of the

certificates of limited partnership for Orangeco and Whiteco; (2) Norman Vann Thomas,

Sr.’s giving the certificates to his daughter, Catherine Maness, for filing and his statements

that the children had an “interest” in the partnerships; and (3) the children signing the receipt

and waiver acknowledging an interest in Orangeco and Whiteco, following their father’s

death. The trial court found, as a matter of fact, that each of the foregoing events occurred.

Given the absence of a transcript or statement of the evidence, we are bound by these

findings. Consequently, our task on appeal is to determine whether the trial court erred, as

a matter of law, in declining to infer a partnership based upon any, or all, of the facts as

stated in the final order. 

Filing the Certificates of Limited Partnership

In her brief, Ms. Tanner seems to suggest that, because Orangeco and Whiteco 

admitted, in their answer, that the alleged partnerships were organized under the Tennessee
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Limited Partnership Act, this statement in the answer somehow constitutes an admission that

both Orangeco and Whiteco are, in fact, partnerships. We disagree. In the first instance, it

is well settled that pleadings are not evidence. See, e.g., State v. Roberts, 755 S.W.2d 833,

836 (Tenn. Crim. App.1988). Regardless, from our review of Orangeco and Whiteco’s

answer, it appears that, at best, there was only an admission that the certificates were filed

with the State–a fact that the trial court found to be true. However, the trial court did not go

so far as to find that the filing of the certificates, ipso facto, resulted in the formation of a

partnership. The trial court’s conclusion was correct. As noted above, a partnership requires

at least two parties. The filing of a certificate of limited partnership, standing alone, is not

sufficient to establish a partnership absent compliance with the other statutory requirements.

See In re Estate of Threefoot, No. W2005-02942-COA-R3-CV, 2006 WL 3114147 (Tenn.

Ct. App. Nov. 3, 2006) Although Norman Vann Thomas, Sr. attempted to create a

partnership by filing the certificates, based upon the trial court’s finding that Norman Vann

Thomas, Sr. was the sole party involved, Mr. Thomas failed to create an actual partnership.

Catherine Maness’ Receiving and Filing the Certificates

The fact that Norman Vann Thomas, Sr. gave the certificates for Orangeco and

Whiteco to his daughter for filing is simply not sufficient to find a partnership. Moreover,

the fact that Norman Vann Thomas, Sr. informed his daughter that the children had an

“interest” in the alleged partnerships is also insufficient to form a partnership. As noted

above, Tenn. Code Ann. §61-1-101(6) defines a “partnership” as “[a]n association of two (2)

or more persons to carry on as co-owners of a business or other undertaking for profit....”

Under this definition, a partner must be a “co-owner” of the partnership. The Bass Court

clarified this requirement, stating that, in order for a partnership to exist in Tennessee, the

parties involved must have “entered into a business relationship for profit, combining their

property, labor, skill, experience, or money.” Bass v. Bass, 814 S.W.2d at 41. Under this

definition, the fact that Norman Vann Thomas, Sr.’s children had an “interest” in the alleged

partnerships is simply not sufficient to prove that they were in partnership with their father.

There is no evidence that any of the children took any action to combine their property, skills,

experience, or money with their father’s from the date that the certificates were filed in 1998

until the time of Norman Vann Thomas, Sr.’s death in July of 2007. 

Receipt and Acknowledgment

Following their father’s death, the Thomas children signed a receipt and

acknowledgment concerning the reimbursement of funds to Robert Thomas for funeral

expenses. Ms. Tanner asserts that the children’s admission that they had an “interest” in

Whiteco and Orangeco indicates a partnership between themselves and Norman Vann

Thomas, Sr. We disagree. In the first instance, it is clear that any action by the children after
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their father’s death cannot form the basis of a partnership. Further, the fact that Robert

Thomas was reimbursed for his father’s funeral expenses from funds that were designated

for Orangeco was not evidence that Robert Thomas was a partner in that entity. Moreover,

the children became interest holders in the alleged partnerships upon the death of their father,

as the beneficiaries of his Estate. An interest holder, however, is not the same as a partner.

Based upon the foregoing, we conclude that the trial court was correct in finding that

there was not clear and convincing evidence in the record from which to infer the existence

of a partnership between Norman Vann Thomas, Sr. and any of his children. Therefore, we

affirm the order of the trial court. Costs of this appeal are assessed against the Appellant,

Sherry Tanner, and her surety.

_________________________________

J. STEVEN STAFFORD, JUDGE