Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malouf v. Evans

Court of Appeals of Mississippi

July 17, 2018

MICHAEL J. MALOUF APPELLANT
v.
LISA EVANS D/B/A LAKE HARBOUR MARINE APPELLEE

          DATE OF JUDGMENT: 02/14/2017

          RANKIN COUNTY CIRCUIT COURT, HON. JOHN HUEY EMFINGER JUDGE:

          ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF ROBERT EUGENE JONES II

          ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB

          WESTBROOKS, J.

         ¶1. In June 2014, Michael Malouf filed a complaint against Lisa Evans, Lake Harbour Marine, and Michael Evans, in the County Court of Rankin County, alleging breach of contract, breach of good faith and fair dealing, breach of trust, breach of warranty, fraud, misrepresentation, deceit, deception, conversion, unlawful taking, unjust enrichment, assault, duress, negligence, and gross negligence. In June 2016, upon the conclusion of Malouf's case in chief, the trial court granted Lisa's motion for a directed verdict, finding that there was insufficient evidence to prove that Lisa was in a business partnership with her husband, Evans, or that Lisa was responsible for any misrepresentations made on behalf of Lake Harbour Marine. In July 2016, Malouf filed a motion for reconsideration, which was denied by the trial court. Malouf appealed both the trial court's judgment and order denying the motion for reconsideration to the Circuit Court of Rankin County. The circuit court affirmed the decision of the county court. Malouf now appeals. After review of the record, we affirm.

         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 the boat inspected. Ivy testified that he discovered the boat's engine was cracked and estimated the cost of repairs somewhere between $6, 000 and $7, 000. Malouf testified that Ivy stated he would make additional repairs and change the oil. However, both Ivy and Malouf testified that before committing to the repairs, Malouf wanted a second opinion.

         ¶3. Malouf then took his boat to Evans, [1] the owner of Lake Harbour Marine.[2] Malouf testified that Evans stated he would place a new 350 horsepower engine in the boat, and that total repairs would cost between $4, 500 and $5, 500. The agreement also stated that the repairs were to be completed by July 4, 2014.

         ¶4. Malouf testified that he attempted to contact Lake Harbour Marine several times to check on his boat; however, he was unable to reach anyone. Malouf stated that he visited Lake Harbour Marine on July 2, 2014, and encountered Lisa. Lisa informed him that the engine on the boat had not yet been replaced at that time. According to Malouf, he continued to call Lake Harbour Marine and always spoke with Lisa regarding the progress made on the repairs. During one of the phone calls, Lisa informed Malouf that his boat was being repaired; however, parts of the boat were missing. Malouf contacted Ivy Marine and located the parts, and Lisa arranged for her daughter to deliver the parts to Lake Harbour Marine. Malouf stated that Lisa requested he bring $3, 850 in cash to pick up the boat, because of something negative Malouf's daughter allegedly posted on Facebook regarding Lake Harbour Marine's business practices. Malouf testified that after his conversation with Lisa, he continued to call Lake Harbour Marine for several days. However, he was unable to reach anyone.

         ¶5. On July 11, 2014, Malouf spoke with Lisa again, and Lisa directed him to her attorney, Chris Tabb. Tabb informed Malouf that he could pick up the boat later that day. Malouf, Mike Malouf Jr. (Mike Jr.), and an officer[3] from the Flowood Police Department traveled to Lake Harbour Marine to pick up the boat. Lisa gave Malouf an invoice representing that several repairs had been completed.[4] Mike Jr. and Malouf testified that they proceeded directly to the reservoir after retrieving the boat to test it. However, the boat would not accelerate over approximately five to ten miles per hour. The next day, Malouf returned the boat to Ivy Marine for further inspection.

         ¶6. Ivy testified that one manifold had been replaced and the top part of the engine had been cleaned. However, Ivy noted that the engine had the same crack in the same spot as it did before Malouf took it to Lake Harbour Marine for repair. Ivy stated that the oil was black, and it appeared to be the same oil that he had placed in the boat a year prior. Further, Ivy noticed that the serial number had been removed from the cracked engine. As a result, Ivy performed the necessary repairs to Malouf's boat, after Malouf notified Lake Harbour Marine that they could inspect the engine to see whether it had been replaced. It was later determined that the engine had not been replaced. Malouf testified that he continued to send correspondence to Evans, Tabb, and Lake Harbour Marine regarding the misrepresentations.

         ¶7. In August 2014, Malouf filed a complaint against Evans and Lisa, individually, and Lake Harbour Marine in the County Court of Rankin County, alleging breach of contract, breach of good faith and fair dealing, breach of trust, breach of warranty, fraud, misrepresentation, deceit, deception, conversion, unlawful taking, unjust enrichment, assault, duress, negligence, and gross negligence.

         ¶8. In June 2016, a jury trial was held against Lisa, individually, and Lake Harbour Marine. Upon the conclusion of Malouf's case-in-chief, the trial court granted Lisa's motion for a directed verdict, finding that there was insufficient evidence to prove that Evans and Lisa were in a partnership or that Lisa was responsible for any misrepresentations made on behalf of Lake Harbour Marine. In July 2016, Malouf filed a motion for reconsideration, which the trial court denied. Malouf appealed both the trial court's judgment and order denying the motion for reconsideration to the Circuit Court for Rankin County. The circuit court affirmed the decision of the county court. Malouf appeals.

         STANDARD OF REVIEW

         ¶9. "The standard of review for a trial court's grant or denial of a motion for 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 Lisa's motion for directed verdict.

         ¶10. Malouf asserts that the trial court erred in granting Lisa's motion for a directed verdict because there was evidence for a jury to find that Lisa was liable for his damages. However, the trial court ruled that in order for Lisa to be liable for Malouf's damages, Malouf would have had to prove that Lisa and Evans were in a partnership. The trial court determined that no evidence of a partnership had been presented.

         ¶11. "Mississippi Code Annotated section 79-13-202(a) (Rev. 2013) [describes] a partnership as 'the association of two or more persons to carry on as co-owners [of] a business for profit.'" Carlson v. Brabham, 199 So.3d 735, 740 (¶17) (Miss. Ct. App. 2016).[5] Further, in Carlson, this Court held:

The three main questions that are considered in partnership determination are (1) the intent of the parties, (2) the control question, and (3) profit sharing. The intent required to form a partnership may be implied. However, profit sharing may be the most important factor. A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received in payment of wages or other compensation to an employee.

Id. (citations omitted).

         A. Intent

         ¶12. At trial, Malouf presented evidence and testimony that he interacted with Lisa on several occasions. Justin Atwood, a former employee of Lake Harbour Marine, testified that Lisa would come to the shop every day to help with the books and any other tasks that Evans asked of her, because there was no bookkeeper or secretary. However, the trial court noted that Lisa did not conduct any business without Evans's approval, nor did she assist with any repairs. Furthermore, Lisa never identified herself as an owner of Lake Harbour Marine-even though Malouf disputed that assertion.

         ¶13. Also, the trial court found that there was no evidence presented at trial that Lisa and Evans intended to run the business as partners. Furthermore, Malouf did not submit any evidence of a written agreement among Lisa, Evans, and Lake Harbour Marine. After weighing the evidence, the trial court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.