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Malouf v. Evans

Supreme Court of Mississippi, En Banc

April 11, 2019

MICHAEL J. MALOUF
v.
LISA EVANS d/b/a LAKE HARBOUR MARINE

          DATE OF JUDGMENT: 02/14/2017

         ON WRIT OF CERTIORARI

          RANKIN COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: CHRISTOPHER A. TABB ROBERT EUGENE JONES, II MICHAEL J. MALOUF

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

          ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB

          MAXWELL, JUSTICE.

         ¶1. The county court judge granted Lisa Evans's motion for a directed verdict in Michael J. Malouf's tort-based lawsuit over boat repairs promised and paid for but allegedly never made. The judge dismissed the case after finding Malouf failed to prove Lisa and her deceased husband, a boat mechanic, had been in a partnership when doing business as Lake Harbour Marine. But in granting Lisa a directed verdict, the court wrongly gave Lisa, not Malouf, favorable evidentiary inferences drawn from Malouf's testimony and did not take Malouf's testimony as true-as is required before a trial judge may take a case away from a jury.[1] The trial judge also incorrectly found that insufficient proof of a partnership between Lisa and her husband was dispositive of all of Malouf's tort claims-even those that did not hinge on the existence of a partnership.

         ¶2. Malouf testified that Lisa presented herself as an owner of Lake Harbour Marine and was thoroughly involved in almost all of his interactions with the business-acting as if she had authority in its dealings. Even so, the trial judge inferred Lisa "was just doing as she was told." And the Court of Appeals, in affirming the trial court's judgment, similarly assumed she was "nothing more than an employee" who could not be held liable for demanding Malouf pay $3, 850 in cash for boat repairs her husband never made. After review, we find that when Malouf's testimony and evidence is taken as true and he is given all reasonable inferences, the evidence at least creates a jury issue on whether Lisa, as her husband's partner, is liable for his actions in the boat-repair shop. It was also error for the county court and appellate court to cite the supposed lack of a partnership as reason to dismiss Malouf's claims against Lisa individually for her own alleged fraudulent or negligent misrepresentations. For these reasons, we find the trial judge should not have taken the case from the jury.

         ¶3. We thus reverse the judgment granting Lisa a directed verdict and remand this case to the Circuit Court of Rankin County for a new trial de novo.[2]

         Background Facts and Procedural History

         I. Purported Boat Repair

         ¶4. In May 2014, Malouf discovered his ski boat did not run properly. He first took the boat to Ivy Marine. Mike Ivy told Malouf the engine was cracked. Ivy estimated the repairs would cost $6, 000 to $7, 000.

         ¶5. Wanting a second opinion, Malouf took the boat to Lake Harbour Marine in Flowood, Mississippi. Important to this case, "Lake Harbour Marine" is not a recognized business registered with the Mississippi Secretary of State's Office. Instead, it was run under a d/b/a ("doing business as") type of arrangement. At Lake Harbour Marine, Mike Evans inspected the boat and told Malouf he could put a new 350-horsepower engine in the boat and make other necessary repairs for $4, 500 to $5, 500. Malouf agreed to the deal, with the stipulation he needed the boat by July 4, 2014. Evans directed Justin Atwood, who was working at Lake Harbour Marine that summer, to "write [Malouf] up" and collect a $2, 000 down payment.

         ¶6. As the July 4th approached, Malouf worried his boat would not be ready. He called Lake Harbour Marine several times, but no one answered. He then went by the business. This is when he met Lisa, Evans's wife. When Malouf told her he was looking for Evans, Lisa directed Malouf to the back where the boats were. Malouf asked Evans about the boat's status, and Evans said, "there's your brand new engine right there." But Malouf protested that the old and beat-up engine Evans pointed to was not new. According to Malouf, Evans became "very vocal and very violent" ...


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