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2011-UP-470 - Wright v. Cartledge

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Issac Wright, Respondent,

v.

Stevie Cartledge, Appellant.


Appeal From Allendale County
Walter H. Sanders, Jr., Special Referee


Unpublished Opinion No. 2011-UP-470
Heard October 6, 2011 – Filed October 26, 2011   


AFFIRMED


Michael C. Tanner, of Bamberg, for Appellant.

James D. Mosteller, III, of Barnwell, for Respondent.

PER CURIAM:  In this bifurcated action for an accounting, breach of fiduciary duty, and dissolution of a partnership, Appellant Stevie Cartledge argues the special referee erred in finding a partnership existed between the parties.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Verenes v. Alvanos, 387 S.C. 11, 16, 690 S.E.2d 771, 773 (2010) ("Characterization of an action as equitable or legal depends on the appellant's main purpose in bringing the action.") (internal quotations omitted); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 654-55 (2011) (providing we will affirm the decision of the trial court in an equity case unless its decision is controlled by some error of law or the appellant satisfies this court that the preponderance of the evidence is against the factual findings of the trial court); Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 427, 673 S.E.2d 448, 453 (2009) ("An action for an accounting sounds in equity."); Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1990) (holding an action seeking dissolution of a partnership is one in equity); Bivens v. Watkins, 313 S.C. 228, 230 n.3, 437 S.E.2d 132, 133 n.3 (Ct. App. 1993) (providing an action for breach of fiduciary duty may also sound in equity if the relief sought is equitable);S.C. Code Ann. § 33-41-210 (2006) (defining a "partnership" as "an association of two or more persons to carry on as co-owners a business for profit . . . ."); Corley v. Ott, 326 S.C. 89, 92, 485 S.E.2d 97, 99 (1997) (holding a partnership may be found to exist by implication from the conduct of the parties); Moore v. Moore, 360 S.C. 241, 260, 599 S.E.2d 467, 477 (Ct. App. 2004) (holding one of the most important tests regarding the existence of a partnership is the intention of the parties); id. (holding factors to consider when determining whether a partnership exists include:  (1) the sharing of profits and losses; (2) the community of interest in capital or property; and (3) the community of interest in control and management).  We find no error of law and we find the factual findings of the court to be supported by the record.[1] 

AFFIRMED.

HUFF, PIEPER and LOCKEMY, JJ., concur.


[1] Although the primary character of this action is equitable, we alternatively find that under a legal standard of review our conclusion would not change.  We make this alternative finding as we acknowledge some jurisprudence relating solely to the question of a partnership suggesting a legal standard of review.  See Dulany & Co. v. Elford & Dargan, 22 S.C. 304, 308 (1885) (holding what constitutes a partnership is a question of law);  Am. Type Founders Co. v. Greenwood Printing Co., 88 S.C. 308, __, 70 S.E. 803, 804 (1911) (stating the circuit court's factual finding on question of partnership conclusive on appeal); Beck v. Clarkson, 300 S.C. 293, 301, 387 S.E.2d 681, 686 (Ct. App. 1989) (finding sufficient evidence existed to submit the question of the existence of a partnership to the jury); Hofer v. St. Clair, 298 S.C. 503, 508-09, 381 S.E.2d 736, 739 (1989) (utilizing a contract standard of review and stating that lower court's factual findings on the existence of a partnership were supported by the record).