Clyde Ackerman v. Roy C. Walker, Inc.

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

Clyde Ackerman, Respondent,

v.

Roy C. Walker,
John R. Walker, John R. Walker, Inc., and Roy C. Walker, Inc., Appellants.

Appeal From Colleton County

J. Brady Hair, Special Referee

Unpublished Opinion No. 2009-UP-622

Heard April 22, 2009 – Filed December 30,
2009  

AFFIRMED and REMANDED

Desa Ballard and P. Christopher Smith, Jr.,
both of West Columbia, for Appellants.

Charles S. Bernstein and Robert A.
Bernstein, both of Charleston, for Respondent.

PER CURIAM:  Roy C. Walker, John R. Walker, John R.
Walker, Inc., and Roy C. Walker, Inc. (collectively Appellants) allege the
special referee erred in:  (1) failing to apply the burden of proof to the
facts and failing to address the elements of a partnership; (2) treating this
case as an accounting case after he concluded a partnership existed; and (3)
concluding Clyde Ackerman was entitled to profits made from the interest
collected from the financing of the properties.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following
authorities:  S.C. Code Ann. § 33-41-210 (2006) ("A 'partnership' is an
association of two or more persons to carry on as co-owners a business for
profit . . . ."); S.C. Code Ann. § 33-41-220(4) (2006) (stating the
sharing of profits is prima facie evidence of the existence of a partnership); Moore
v. Moore, 360 S.C. 241, 260, 599 S.E.2d 467, 477 (Ct. App. 2004) ("Where
the parties to a contract, by their acts, conduct, or agreement show that they
intended to combine their property, labor, skill and experience, or some of
these elements on one side, and some on the other, to carry on, as principals
or co-owners, a common business, trade, or venture as a commercial enterprise,
and to share, either expressly or by implication, the profits and losses or expenses
that may be incurred, such parties are partners.") (internal quotation
omitted); Halbersberg v. Berry, 302 S.C. 97, 101, 394 S.E.2d 7, 10 (Ct.
App. 1990) (employing the following tests to determine whether a partnership
exists:  (1) the sharing of profits and losses; (2) community of interest in
capital or property; and (3) community of interest in control or management); Stephens
v. Stephens, 213 S.C. 525, 531, 50 S.E.2d 577, 579 (1948) ("[W]hen all
of the conditions exist which by law create a legal relationship, the effects
flowing legally from such relation follow whether the parties foresaw and
intended them or not.").     

Additionally, we remand this
case to the Special Referee for dissolution.  At trial and in their briefs,
both parties requested dissolution.  S.C. Code Ann. § 33-41-930(1)(b) (2006)
(stating dissolution can be obtained "by the express will of any partner
when no definite term or particular undertaking is specified").  Because
we remand for dissolution, we also remand for an accounting.          

AFFIRMED and REMANDED.

HEARN, C.J., and PIEPER, J., and LOCKEMY, J.,
concur.