IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00374-COA MICHAEL J. MALOUF APPELLANT

v. LISA EVANS D/B/A LAKE HARBOUR MARINE APPELLEE DATE OF JUDGMENT: 02/14/2017 CIRCUIT JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF ROBERT EUGENE JONES II ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 07/17/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. In June 2 0 1 4 , M i c h a e l Malouf f iled a com

plaint against Lisa Evans, Lake Harbour Marine, and Mic h a e l Evans, in the County Court of Rankin County , alleging breach of contract, breach of good f aith and f a ir dealing, breach o f t rust, breach of warranty , f raud,

m i s r e p r e s e n t a t i o n , d e c e i t , d e c eption, conversion, unlawf u l taking, u njust enrichm ent, as s a u l t , duress, n egligence, and gross negligence. In June 2016, u p o n t h e c o n clusion of Malouf ’s

case in c hief

, the t rial court granted Lisa’s m otion f or a directed ve r d i ct, f

inding that there

was insuf f icient evidence to prove that Lisa w a s in a business p artnership with h er husband,
E v ans, or that Lisa w as responsible f o r any m isrepresentations m ade on behalf o f L a k e Harbour Marine. In July 2016, Malouf f iled a m otion f

o r reconsideration, which was deniedby the trial court. Malouf a ppealed b oth t h e t r ial c ourt’s judgm ent and order deny ing the

m otion f or reconsideration to the Circuit Court of Rankin C ounty

. The circuit court af f irm ed the decision of the county court. Malouf now appeals. Af ter r eview of the record, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In May 2014, Malouf experienced issues with his boat. He took the boat to Mike Ivy , at Ivy Marine, to have t he boat inspected. Ivy testif ied that he discovered t he boat’s engine

was cracked and estim ated the cost of repairs som e w h e re between $ 6,000 and $7,000. Malouf t estif

ied that I vy stated he would m ake a d ditional repairs and c hange the oil. However, both Ivy a nd Malouf testif ied that bef

ore com m itting to t he repairs, Malouf wanted a second opinion. ¶3. Malouf then t ook his boat to Evans, 1 the owner of Lake Harbour Marine. 2 M a louf testif i ed that Evans stated he would place a new 350 horsepower engine in the boat, and that total repairs would cost b e t w een $4,500 and $5,500. T he agreem ent also stated that the repairs were to be com

p leted by July 4, 2014. ¶4. Malouf testif

ied that he a ttem

pted to contact La k e Harbour Marine several tim es to check on his boat; however, he was unable t o reach any one. Malouf stated that he visited Lake Harbour Marine o n July 2, 2014, and encountered Lisa. Lisa i n f o r m e d h i m that the

1 Evans died in 2014 af

t er t he c om

plaint was f

iled but bef

ore the trial s tarted in 2016. Malouf t estif

ie d that he f

iled a claim against E vans’s e state; h owever, the estate was insolvent.

2 The record does not ref

l ect that “Lake Harbour M arine” was a recognized business entity registered with the Mississippi Secretary of State’s Of

f ice. 2engine on the boat h ad not y et been replaced at that tim e. According to M alouf , h e continued

to call Lake Harbour M arine and alway s spoke w ith L isa regarding the progress m ade on the repairs. During one of the p h o n e c a lls, L isa inf orm ed Malouf that his boat was being repaired; however, p arts of the boat were m i ssing. Malouf contacted Ivy Marine and located the parts, and Lisa arranged f o r h er daughter to deliver t he parts to Lake Ha r b o u r M arine.
Ma l o u f s t a t e d that Lisa requested he bring $3,850 in cash to pick up t he boat, because of

som ething n egative Malouf ’ s daughter a llegedly posted on Facebook r egarding Lake Harbour Marine’s business practices. Malouf testif ied that af t er h is conversation with Lisa, he c ontinued to call L ake Harbour Marine f or several day s . However, he was unable to reach
any one. ¶5. O n J u l y 1 1 , 2014, Malouf spoke with Lisa again, and L isa direct e d h i m t o h e r attorney , Chris Tabb. Tabb inf o rm ed Malouf that he could pick up the b o at later that day

. Malouf , Mike Malouf Jr. ( Mike J r.), a nd an of f icer 3 f rom the Flowood Police D e p a r tm ent traveled to La k e H a r b our M arine t o pick up the boat. L isa gave Malouf an invoice representing that several repairs had been com p leted. 4 Mike Jr. and Malouf testif ied that they proceeded directly to the reservoir af ter retrieving the b oat to test i t. However, t h e boat

3 Malouf and Mike Jr. testif ied that they b oth w ere involved in heated exchanges with Evans regarding the boat, so they thought it would be best to return with a police of f icer.

4 The invoice stated that the f ollowing repairs were perf orm ed: instal l e d a n e w 5.0 short b lock, installed 2 used m anif olds and m anif

old r isers, transf

erre d h e ads and all electronics f

rom busted block, replaced water pum p i m p eller i n outdrive, a n d com plete f luid service. Malouf

was also charged f

or a new oil f

ilter and f ive quarts of

oil. 3would n ot accelerate over approxim ately f i ve t o ten m iles per hour. The next day , Malouf returned the boat to Ivy

Marine f o r f u rther inspection. ¶6. Ivy testif

ied that one m anif

old had been r eplaced and the top part of the engine had been cleaned. However, Ivy noted that the engine had the sam e crack in the sam e spot as it did bef ore Ma l o u f took it to Lake Harbour Marine f or repair. Ivy stated that the oil was black, and it appeared to be the sam e o il that h e had p laced in t he boat a y ear prior. Further, Ivy noticed that the serial num ber had been rem o ved f

r om the cracked engine. As a result, Ivy perf orm ed t h e n ecessary r epairs to Malouf ’s b oat, af ter Malouf n otif

ied Lake Harbour Marine that they could inspect the engine to see whether it had been replaced. It was later determ ined that the engine had not been replaced. Malouf testif ied that h e c ontinued to send correspondence to Evans, Tabb, and Lake Harbour Marine regarding the m isrepresentations. ¶7. In August 2014, Malouf f i led a com

plaint against Evans and Lisa, individually , and Lake H arbour Marine in the County Court of Rankin County , alleging b reach o f c o n t r a c t , breach of g ood f

aith and f

air dealing, b r e a c h of trust, breach of warranty , f raud,

m i s r e p r e s e n t a t i o n , d e c e i t , d e c e p t i o n, conversion, unlawf ul taking, unjust enrichm e nt, assault , duress, negligence, and gross negligence. ¶8. In June 2016, a j ury trial was held aga i n s t L i s a , i n d i v i d ually , and Lake Harbour Marine. U pon the conclusion o f Malouf ’s case-in-chief , the trial court granted Lisa’s m otion f or a directed verdict, f

i n d i n g that there was i nsuf f icient evidence to p rove that E vans and Lisa were in a partnership or that Lisa was responsible f o r any m i srepresentations m ade on

4behalf of Lake Harbour M arine. In July 2016, Malouf f i led a m otion f

or reconsideration, which the trial court denied. Malouf appealed both t he trial c o u r t ’ s j u d gm ent and order deny ing the m o tion f

or reconsideration to the Circuit Court f or R ankin County

. The circuit court af f irm ed the decision of

the county

court. Malouf

appeals. STANDARD OF REVIEW ¶9. “The standard of review f or a t rial court’s grant or d enial of a m otion f or a directed verdict is de novo.” Harris v. Michael , 211 So. 3d 732, 734 (¶6) (Miss. Ct. App. 2016). DISCUSSION I. Whether the trial court erred in granting Lis a ’ s mo tion for directed verdict. ¶10. Malouf asserts that the trial court erred i n granting Lisa’s m otion f or a directed verdict because there was evidence f or a jury to f

ind that Lisa w as l iable f

or his dam ages. However, the trial court ruled that in order f or Lisa to b e liable f

or Malouf ’s dam ages, Malouf would have had to prove that Lisa and Evans were in a partnership. The t rial court d eterm ined that no evidence of

a partnership had been presented. ¶11. “ M i s s i s s i p p i C o d e Annotated s ection 79-13-202(a) ( R e v . 2 0 1 3 ) [ d e s c r i b e s ] a partnership as ‘the a s sociation of two or m ore persons t o carry on as c o-owners [ of ] a business f o r prof it.’” Carlson v. Brabham , 199 So. 3d 735, 740 (¶17) (Miss. Ct. App. 2016). 5 Further, in Carlson , this Court held:

5 The def initi o n i s p r o v i d e d i n M i s s i s s i p p i C ode Annotated section 79-13-101(6) (Rev. 2013). 5The three m ain questions that are considered in partnership determ ination are

(1) the intent o f t he parties, (2) the control ques t i o n, and (3) prof it s haring. The inten t r e q u i r e d to f

orm a p artnership m ay be im plied. However, prof

it sharing m ay be the m ost im portant f actor. A person who receives a share of the prof its of a business is presum ed to be a partner in the business, unless the prof its were r eceived in pay m ent of w ages or other com pensation to an em ploy ee. Id . (citations om itted).

A. Intent ¶12. At t r i a l , M alouf presented evidence and testim ony that he interacted with Lisa on several occasions. Justin Atwood, a f orm er e m ploy ee of Lake Harbour Marine, testif ied that Lisa would com e t o the shop every day to help with the books and any other tasks that Evans asked o f her, because there w as no bookkeeper or secretary

. H owever, the trial c ourt noted that Lisa did not conduct any business without Evans’s approval, nor did she assist with any repairs. Furtherm ore, Lisa never ident i f i ed herself as a n o wner of Lake Harbour Marine–even though Malouf disputed that assertion. ¶13. Also, the trial court f o und that there w as no evidence presented at trial that Lisa and
Evans i ntended t o run the b usiness as partners. Furtherm ore, Malouf did not subm it any evidence of a written agreem ent am ong Lisa, E v ans, and Lake H a r bour Marine. Af ter weighing the evidence, the trial court f ound that Malouf did not present suf f icient evidence to prove the intent requirem ent. ¶14. Accordingly , this Court f inds this issue is without m e rit.
B. Control

6¶15. Malouf asserts that Lisa con t r o l l e d t he day -to-day operations a t Lake Harbour Marine; theref ore, a v alid partnership was f orm ed between Lisa and Evans. However, outside of bookkeeping and writing invoices, no testim ony was presented that Lisa controlled any other aspect of t he business. This Court has held that “while control is i ndicative of t he existence of a partnership, control by itself is not the exclusive indicator o f partnership.” C arlson , 199 So. 3 d at 741 (¶22). Evidence presented at trial d em onstrated that Lisa alway s spoke to Evans bef ore writing the invoices f

or Malouf

. Malouf testif

ied that Lisa held h erself out as part-owner; however, the trial court f ound his testim ony unpersuasive. Atwood testif ie d that,

a t t im es, Lisa w as a t the business every day ; he explained that she “helped o u t w i t h
p a perwork.” Atwood a lso testif i ed that Lisa and Evans s poke about M alouf ’s boat repair ; however, he did not know how detailed those conversations were. ¶16. The dissent m entions that Atwood also testif ied that Lisa would bring the shipm ents in and f ile them and that Lisa did m ost of the paperwork. However, the trial court was not persuaded by that t estim ony . Moreover, Atwood was not allowed to testif y r egarding if Lisa knew whether the engine had been replaced because he lacked personal knowledge. ¶17. Additionally , the letter Malouf sent to Evans, Tabb, and L a ke Harbour Marine did not

m ention L isa’s nam e. The trial c ourt f ound the letter to be very p ersuasive because the letter neither m entioned Lisa’s nam e i ndependently in a partnership w ith Evans n or Lake Harbour Marine. Malouf testif

ied that although Lisa’s nam e was lef t of f the letter to Lake Harbour Marine, he considered Lisa to be “Lake Harbour Marine” a nd in control over the business.

7The trial court f ound Malouf ’s testim ony unpersuasive and unsubstantiat e d

. Further, the court stated that the problem with Malouf ’s testim ony was that it r elated t o what happened

to Lake Harbour M a rine af ter Evans died; however, the events in question oc c u r r e d w h ile
Evans was still a live. It did not appear that L isa h ad control over the business while Evans was alive. ¶18. Accordingly , af

t er r eview of the record, w e f ind that Malouf f

ailed t o prove that Lisa controlled the direction of the business.

C

. Profit Sharing ¶19. Malouf asserts that Lisa and Evans were sharing prof its because she was awarded a
t r u c k and m oney f

rom the business af

ter Evans died. However, the trial court d eterm ine d

t h a t Malouf f

ailed to s how that L isa and Evans shared prof its f rom the business s i mp l y because they

were m arried or that she received prof its af ter Evans’s death. Malouf asserts that he g ave Lisa the m oney f or the repairs; however, it is unclear what happened with the

m oney o nce it f

ell i nto Lisa’s possession—although M alouf stated he believed the m oney
went into a saf

e. The trial c ourt f

ound that M a l o u f ’ s evidence of Lisa taking m oney and putting it in a saf

e w as “ post debt” and did not ref lect that Lisa and Evans shared prof its. This C o u r t h a s held t hat “[ o]f the three f actors, prof

it sharing i s the m ost im

portant one in determ ining whether a partnership exists.” Carlson , 199 So. 3d at 742 (¶25). ¶20. In Carl

s o n , “ [ t h e p l a i n t i f

f ] received checks f

or bookkeeping services.” Id

. As a result, the trial court f

ound that she could o nly prove prof it sharing. Id

. at ( ¶26). In this case,

8Malouf presented no e vidence that Lisa shared any prof its f rom Lake Harbour Marine with her husband. Moreover, we have h eld that “[ a] person who receives a share of the prof i ts of

a b usiness is presum e d to be a partner i n the business, unless the prof its were r eceiv e d i n pay m ent of wages or other c om pensation to an em

p loy ee.” I

d. at 740 ( ¶ 1 7 ) ( c i t i n g Miss. Code A nn. § 79-13-202 (c)(3)(ii)). Malouf did not p resent evidence to establ i s h t h at Lisa

was m ore than an em

ploy ee. ¶21. As a r e s u l t , t h e t r i al court determ ined t hat Malouf ’s argum e nt that Lisa was in a partnership with E vans was speculat i v e a t b est. Accordingly , we f ind that t he trial court correctly f

ound that Malouf f

ailed to prove that Lisa and E vans were in v o l v e d in a partnership.
II. Whether M alouf’s claim is viable under the Uniform Partnership Act. ¶22. The d i s s e n t a r g u e s t hat Malouf presented suf f i cient evidence to w ithstand Lisa’s

m otion f or directed verdict under the Unif orm Partnership Act. ¶23. T h e d i s s e n t w r i t e s t h a t “Lisa gave Malouf an invoice apparently written in h e r handwriting that represented that Lake Harbour Marine replaced Malouf ’s o ld engine with

a ‘new short block.’” Post ¶ 4 4. As a result, the dissent ma i n tains that t here is suf f icient evidence that Lisa held h erself out to be a partner (or joint venturer), by words or conduct, and Malouf relied to his detrim ent on her representation. However, the evidence doe s n ot quite support that theory

. ¶24. Testim ony supports that Lisa created the receipt af ter a conversation with Evans—not
9af

ter c o m p leting her own thorough analy sis of the agreem ent between E vans and Malouf or the condition of the boat. Furtherm ore, this Court should not hold e m ploy ees li a b l e as “partners” f

or sim ply supply ing receipts to custom ers. The evidence presented nothing m ore than an em

ploy ee status. An argum ent that Malouf relied upon Lisa’s receipt alone regarding the work to have been com pleted on his boat i s m i sleading. Moreover, the t rial court f ound that Lisa was not liable as a “joint venturer.” ¶25. “A joint venture has been b roadly def ined as an association of persons to carry out a single business enterprise f or prof it, f o r which purpose t hey com bine their property , m oney , ef f orts, skill a nd k

nowledge.” Pennebaker v
. Gray , 924 So. 2 d 611, 618 (¶22) (Miss. Ct. A p p . 2006) (internal quotation m ark om itted). H e r e, the trial court courted weighed th e testim o ny subm i tted in Malouf ’s case-in-chief and d eterm i ned that Malouf f a iled t o m ake a prim a f acie s howing that Lisa com m itted f raud or was guilty of m isrep r e s e ntation. Theref ore, t he trial court d id not just sim ply “ign ore[ ] Malouf ’s proof of other theories of liability .” Post

¶44. ¶26. Malouf m aint a i n s t h a t L i s a p r e s e n t e d h e r s e l f a s a purported partner. Under Mississippi Code Annotated section 79-13-308 (Rev. 2018): if a person, by words or conduct, purports to be a partner, or consents t o being represented by another as a partner, in a partnership or wit h one or m ore persons n ot p artners, the p u r p orted partner i s liable to a person to whom the representation is m ade, if that person, rely ing on the representation, e nters into a transaction with the actual or purported partnership. ¶27. Here, the trial court f ound that the e vidence supported that Lisa was not a purported

10partner—even if she p articipated in counting inventory , collecting m oney , and writing

receipts. See Carlson , 199 So. 3d at 742 (¶¶22-23) (f inding that bookkeeping and handling f i n a n c e s did not e quate t o controlling an aspect of a business). Accordingly , we f ind t h i s issue is without m erit.
III. Whether the trial court m a de inferences favorable to Lisa. ¶28. Malouf f

urther asserts that the trial court e rred i n m aking inf e r ences f avorable to Lisa. Malouf states t ha t o n a mo tion f or a directed verdict, the trial court is required to consider the evidence presented, together with any reasonable inf

erence, in the light m o st f avorable to Malouf

. The Mississippi Suprem e Court has stated: The trial j udge is to look solely to the testim ony on behalf of the party against whom a directed verdict is requested. He will take such testim o ny as true along with all reasonable inf

erences which can b e d

rawn f rom t hat testim ony which is f avorable to t hat part y , a nd, if it could support a verdict f or t hat p arty , the directed verdict should n o t be given. If r easonable m inds m ight dif f er as to this question, it becom es a jury issue.
Harris , 211 So. 3d at 734 (¶6). ¶29. The t rial court heard t he evidence an d t e s t i mo n y presented b y Malouf

. The court acknowledge d t h a t M a louf had been “hoodwinked, bam boozled, and cheated” out of his

m oney . However, the trial court f ound that Malouf could not p rove that Lisa had any knowledge of

the m isrepresentations m ade by Evans or Lake Harbour Marine. ¶30. A s a r e s u lt, the trial court f ound that Malouf f

a iled to subm it any proof , other than speculation and inf

erence, that a partnership b etween Lisa and Evans had been established. Theref ore, viewing the evidence i n the light m ost f avorable to M alouf

, we are o f the opinion
11that reasonable m inds c ould not dif f er as to whether L isa and Evans were partners. As a result, the issue of whether Lisa was liable f o r M a l o u f ’ s dam ages did not have to be subm itted to a jury

. 6 Accordingly , we f ind no error in the trial court’s d ecision to enter the directed verdict. ¶31. AFFIRMED. IRVING, P.J., BARNES, WILSON AND T INDELL, JJ., CONCUR. GREENLEE, J., DISSENTS WITH SEPARATE W RITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., AND CARLTON, J. FAIR, J., NOT PARTICIPATING. GREENLEE, J., DISSENTING: ¶32. I respectf

ully dissent. T he trial ju d g e i n t h i s c a s e f ailed to consider and apply the Unif orm Partnership Act (“UPA”), and only f o cused on whether Malouf proved that L i sa Evans was a partner in Lake Harbour Marine. Malouf ’ s tri a l p r o c eeded against Lisa individually and d/b/a Lake H arbour Marine. Lisa was sued individually and “doing business as” Lake H arbour Marine. The UPA recognizes m ultiple theories of liability u n d e r which Lisa m ay be held liable: she m ay be liable as a partner, 7 a joint venturer, 8 or as a purported partner. 9 Malouf presented evidence at trial that Lisa acted a nd presented herself as a partner or joint venturer and evidence that Malouf relied to his detrim ent o n h er representation. In

6 Malouf also a sserts that the trial court erred in not allowing the c ase to be subm itted to a jury ; however, we disagree with this assertion.

7 Miss. Code Ann. § 79-13-306(a) (Rev. 2013).

8 Barrett v. Jones , 27 So. 3d 363, 372 (¶31) (Miss. 2009).

9 Miss. Code Ann. § 79-13-308(a) (Rev. 2013). 12granting Lisa’s directed verdict, the trial judge d eterm ined that Lisa and M ike Evans were

not partners, even though Lisa put on no proof

. I n d e ciding whether a d irected verdict is appropriate, we c onsider the evid e n c e f a v oring the nonm ovant as true and give the

nonm o vant the b enef

it of all reasonable inf

erences i n their f

avor. Thompson v. Dung Thi Hoang N guyen , 86 So. 3d 232, 2 3 6 (¶12) (Miss. 2 012). I would t heref o re f i nd that Malouf presented suf

f icient evidence to withstand Lisa’s m otion f or a directed verdict. FACTS ¶33. Malouf sued both Evans and Lisa individually and d/b/a Lake H arbour Marine. Prior

to trial, a suggestion of death was f iled stating that E v a n s d i e d. M alouf did not m ove to

am end h i s com

plaint to s ubstitute Evans’s estate as a def endant. Af

ter the court dism issed Evans as a party , the trial went f o rward against Lisa d/b/a Lake Harbour Marine. ¶34. During trial, Malouf testif i ed that he originally

took his boat to Ivy Marine, af ter he experienced issues w ith his boat. Upon inspection o f M alouf ’s boat, Mike Ivy , the owner of Ivy Marine, discovered a crack in the engine block. Ivy estim ated repairs would cost between $6,000 and $7,000. Ivy a lso o f f ered to m ake a d ditional r epairs and change the b o a t ’s oil. However, Malouf wanted a second opinion b ef o re he com m itt e d t o the repairs. Malouf testif i ed that h e then took his b oat to Evans, at Lake Ha rbour M arine. Malouf stated that
Evans a g reed to replace his boat engine with a new 350-horsepow e r engine, and that the

e s tim ated cost would be between $4,500 and $5,500, with r epairs to be com pleted b y J u l y 4, 2014. Malouf signed a work order and paid Lake Harbour Marine $2,000 in order f or Lake

13Harbour Marine to start work on his boat.

¶35. Malouf said he attem pted to check on hi s b o a t s e v e r a l t i me s while it w a s at Lake Harbour Marine. He stated t hat he called several tim es but got no r esponse. He then went by Lake H a r b o u r Marine, and Lisa t old h im to speak with Evans, w ho was in t he back of the shop. Malouf f

ound Evans and e xplained that he w as preparing to leave town but w anted to

m ake sure that his boat would be ready by July 4. Malouf said that Evans pointed to an old engine sitting on a wood pallet, stating “that’s y our e ngine right there.” Malouf r esponded that it was not a new e n g i n e . Evans disagreed, prom ising it was. Af ter Malouf again questioned whether the engine on the wood p allet was the p roper replace me n t, Evans threatened Malouf

and told him

to get of f his property

. M alouf testif ied that f ollowing this incident, Lisa becam e his prim ary contact t hroughout his dealings with L ake Harbour Marine. ¶36. M a louf testif

ied that h e and Lisa had num erous conversations about repairin g h i s b o a t

. Malouf stated that: [ Lisa] knew what was going on, acted like i t. She acted like she had a uthority telling m e what to do, what t o bring, how m uch m oney to com e. She said we’re working on the boat; it’ll be ready n ow a nd t hen. She acted like she was an owner, [ a nd] presented herself as an owner. Malouf f urther t estif

ied that Lisa dem anded t hat he bring $3,850 in cash in order f or him to pick up his boat. He said that in a later conversation, he requested Lisa send him a n invoice

so he could see what h e was pay ing f or but that she ref

used and instructed him t o talk to her attorney , C hris Tabb. Malouf went to pick up his boat and paid $3,850 in cash. At that tim e, 14Lisa presented Malouf with an invoice indicating that the short block in his b oat’s e ngine had

been replaced. The invoice appeared t o be written in Lisa’s h andwriting. Af ter picking up his boat, Malouf took it to the reservoir and im m e d iate l y discovered it did n ot f unction properly because it would not accelerate over approxim ately f ive to ten m iles per hour. ¶37. The next day , Malouf took his boat to Ivy M arine f or i nspection. Ivy testif

i ed that he

exam ined Malouf ’ s boat, and that although one of the boat’s m anif

olds had been replaced, the engine had the sam e crack in the sam e spot as bef ore, and the e ngine’s serial num ber had been rem oved. He concluded that Lake Harbour Marine did not replace Malouf ’s engine. ¶38. Justin Atwood a lso testif i ed at trial. Atwood testif

ied that he worked at Lake Harbour Marine in June 2014 a nd that, as an em ploy ee, he s old a nd assem bled boats. A twood said that during his tim e a t Lake Harbour Marine, the b usiness received shipm ents f rom United Parcel Service (UPS) alm o st daily and that Lisa would “ bring [ the shipm e nts] in and f ile them [ .]” Atwood stated t h a t either he, Lisa, or Evans w ould check in purchased parts. He also said tha t L i s a t r i ed t o do m ost of the paperwork, and that if a boat cam e in that needed to be worked on, Lisa would check Lake Harbour Marine’s i nventory t o see if parts needed to be ordered. Atwood testif

ied that Lisa and Evans had m any conversations about the repairs to Malouf ’s boat. ¶39. F o l l o w i n g t h e conclusion of Malouf ’s case-in-chief , the t rial court granted Lis a ’ s

m otion f or a directed verdict, f

inding there was insuf

f i cient evidence to prove that Evans and Lisa were in a partnership or that Lisa was responsible f o r any m i srepresentations m ade on

15behalf of Lake Harbour Marine. On J uly 18, 2016, the trial c o u rt entered a j udgm ent

dism issing Evans without prejudice and dism issing Lisa with prejudice. The judgm ent did

not address Lake Harbour Marine. Malouf f i led f or a m otion f

or r econsideration, w hich the trial court denied. Malouf then appealed both the trial court’s j udgm ent and the order deny ing the m otion f

or reconsideration to the R ankin County C ircuit Court. The circuit court af f irm ed the county court’s d ecision, f i nding that Malouf f

ailed to m ake a prim a f

a cie showing that Lisa c om m itted f

raud or was guilty o f m isrepresentation. Further, in a f f i rm ing the county court’s decision, the circuit court f ound that there was no evidence t hat Lisa knew or should have known that Evans f

ailed to replace the m o tor as represented, or that Lisa knew that any of the representations she m ade were f alse. Malouf tim ely

appealed. DISCUSSION ¶40. W e review de novo a trial court’s grant or denial of a m o tion f or a directed verdict. Thompson , 86 So. 3d at 236 (¶12). The Mississippi Suprem e Court has stated that: in deciding whether a d irected verdict should be granted, the trial judge is to look solely to the testim ony on b e h a l f of the party against whom a directed v e r d i c t is requested. He will take such testim ony as true along with all r e a s o n able inf

erences which c an be drawn f rom t hat testim ony which is f avorable to t hat party , and, if i t could support a verdict f o r that p a r t y , the directed verdict should not be g iven. I f reasonable m inds m ight dif f er as to this question, it becom es a jury issue. Solanki v. Ervin , 21 So. 3 d 552, 555 (¶8) (Miss. 2009) (quoting W hite v. Thomason , 310 So. 2d 914, 916-17 (Miss. 1975)). The suprem e court h as also held that “in c onsidering the evidence a nd all reasonable inf erences, the court m

ust determ ine whether the e vidence i s so

16o verwhelm ingly a gainst the nonm ovant that no reasonable juror could have f ound in [ h i s ] f avor.” Id. ¶41. I n 2 0 0 4 , M i s sissippi adopted the “Unif orm P artnership A ct of 1997.” Miss

. C o d e A n n . §§ 79-13-101, et seq. 10 These provisions are a codif ication of com m on law that def

ine and
govern the operation of businesses explicitly a n d i m p l i c itly run as partnerships. A p artnership is d ef ined as “an association of t wo (2) or m o re persons to carry on as co-owners a business f or p rof it

. . . .” Miss. C ode Ann. § 79-13-101(8) ( Supp. 2017). Pursuant to Mississippi Code Annotated section 79-13-305(a) (Rev. 2013), “ [ a] partnership is liabl e f o r loss or injury caused to a person, or f

or a penalty in c u r r e d , a s a r e sult of a wrongf ul act or om ission, or other actionable conduct, of a partner a c t i n g i n t h e ordinary course o f business of the partnership or with a

uthority of t he partnership.” The UPA provides that “a partnership is an entity d istinct f

r o m its p artners.” Miss. Code Ann. § 79-13-201(a) (Rev. 2013). Further, “[ a] partnership m ay sue a nd be sued in the nam e of the partnership.” Miss. Code Ann. § 79-13- 307 ( a ) ( R ev. 2013). In order to satisf y a judgm ent against a partnership f r om a partner’s assets, t here m

ust also b e a judgm ent against the individual partner. Miss. Code Ann. § 79- 13-307(c) (Rev. 2013). ¶42. The statutory provisions of the UPA are also applicable to joint ventures. Barrett , 27

10 The Unif

orm P artnership Act (1997) becam e ef f ective o n January 1, 2005. Bef ore January 1 , 2007, th e U P A a p p l ied to all partnerships f orm ed a f t er January 1 , 2005; af

ter January 1, 2007, t he revised Act a pplies to all partnerships. Miss. Code A n n. § 79-13-1205 (Rev. 2013). 17So. 3d at 372 ( ¶31). As our s uprem e court has noted, “ [ a] joint venture is a s i ngle-purpose

partnership. ” I

d

. Under t he UPA, “a joint v enture is liable f or any penalty incurred as the result of a wrongf ul act or om ission, or other actionable conduct, of a joint venturer acting in the ordinary course of business of the joint venture.” I d. (citing Miss. C ode A n n. § 79-13- 305(a). ¶43. In absence of

a partnership in f

act, a person can still be liable if he acts as a partner

or joint v enturer. A llied Steel Corp. v. Cooper , 607 So. 2d 1 13, 118 ( Miss. 1992). Mississippi Code Annotated section 79-13-308(a) states: If a person, b y words o r conduct, purports to be a partner, or consents t o being represented by another as a partner, in a partnership or w ith one or m ore persons n ot p artners, the purported partner is liable to a p e r son to whom the representation is m ade, if that person, rely ing on the representation, e nters into a transaction with the actual or purported partnership.

. . . I f p artnership liability results, the purported partner is liable with r espect to that liability as if t he purported partner were a partner. If n o p a r t nership liability results, the purported p a rtner is liable with respect to that liability jointly and s e verally with any other person consenting to the representation. ¶44. In af

f irm ing the trial court’s decision to g rant Lisa’s m otion f or a d irected verdict, the

m ajority only considers whe t h e r Malouf presented suf f icient evidence of a n actual partnership between Evans and Lisa. However, as discussed above, t hat is n ot t he only test of determ ining Lisa’s liability

. Under section 7 9-13-308(a), Lisa i s personally liable to Malouf if she held h e rself out to be a part n e r (or joint venturer), b y words or conduct, and Malouf r elied to his detrim ent on her representation. Taking t he testim ony Malouf presented

as true, and giving Malouf the bene f i t o f all f

avorable inf

erences that can b e drawn

18theref

rom , a reasonable juror could have f ound that Lisa, t h r o u g h words or conduct, represented herself as M ike’s partner, and t hat Malouf relied on Lisa’s representation to his detrim ent. Further, a r easonable juror could have f o und that Lisa knew or s hould have known that Ma l o u f ’ s b o a t engine had not been replaced, given h er regular involvem ent in Lake Harbour Marine’s activities. In dism issing Lisa a s a def endant, the county c ourt only looked

at whether Lisa w as p roved to be a partner and ignored M alouf ’s proof of o ther theories of liability

. Further, the circuit court, in af f irm ing the county court, ignored any basis of liability

on Lake H arbour Marine’s part. Instead, the circuit court f o und that Malouf did not present

a p rim a f acie case of f

raud or m isrepresentation. The m ajority does not reach this issue, but the record indicates that M alouf p r esented suf f icient evidence to w ithstand Lisa’s m otion f or directed verdict. Notably , the evidence showed that Lisa gave Malouf an invoice apparently written i n her handwriting that represented t hat Lake Harbour M arine replaced Malouf ’s old engine with a “new short block.” I would theref ore reverse the judgm ents and rem and f or a new trial in county

court. ¶45. Notwithstanding t h e e v i d e n c e of L isa’s l iability , the trial court’s judgm ent did not dism iss Lake Harbour M arine as a def endant. U nder section 7 9-13-307(a) a partnership m ay be sued i n the nam e of t he p artnership. Theref ore, this case involved three def endants: Mike, Lisa, and Lake Harbour Marine. Following the trial c ourt’s dism i ssal of Mike without prejudice, the t rial p roceeded a g a i n st Lisa and Lake Harbour Marine. The t rial court determ ined that Lisa was not a partner. However, it did not d eterm i ne that L a k e Harbour

19Marine was not a p artnership, nor did it specif i cally dism iss Lake H arbour Marine f rom the suit. Instead, the trial court apparently determ ined that dism i ssing Lisa im pliedly dism issed Lake Harbour Marine f

rom the lawsuit as well. As previously noted, the UPA states that a partnership m ay be sued and be held liable independent of any partner. Malouf ’s proof m ore than adequately dem onstrated tha t L ake H arbour Marine charged f o r work not perf

orm ed.
In c onsidering t he evidence and all reasonable inf erences f avorable to Malouf

, a r easonable j u r o r could have f

ound in Malouf ’s f

avor. As the courts below v iewed the c ase as being dism issed, we should reverse and rem and. I respectf u lly dissent. LEE, C.J., GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.

20