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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11624
Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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I am being sued by a fellow sales rep who is alleging that

Customer Question

I am being sued by a fellow sales rep who is alleging that we are business partners. I have worked for the same manufacturer for over 20 years. I am a 1099 independent sales contractor. 6 years ago I asked the CEO of the manufacturing company if we could bring another independent rep to help with a large acct I opened. He agreed and after a falling out resulting from many issues including a alcohol problem, it was decided to terminate her. We worked jointly on the accountant and shared commissions. The manufacturer paid each of us every month directly. We had no joint bank accounts, did not file 1065s or K1 and she filed in the state of Washington as a sole proprietor. The manufacturer paid and invested millions in marketing and other expenses on the acct although she and I did split fuel and traveling expenses when traveling together. How can I prove that we never entered into any business partnership and were only paid wages in the form of commissions from the manufacturer?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.
Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

You wouldn't be able to or required to prove it. You can't prove a negative.

If you are being sued then the burden of proof is on the other party to prove their case by a preponderance of the evidence. Based on the facts you have given there is no way they can do that since all of the facts you cite support a finding that there was no partnership and therefore they would lose.
Customer: replied 1 year ago.
They are alleging that the commission split was a sharing of profits
Expert:  Dwayne B. replied 1 year ago.
Just an allegation isn't enough. They will have to provide proof of some formal arrangement. Just a commission split will not prove a partnership.
Customer: replied 1 year ago.
Would you be able to answer in more detail or pass to someone who practices partnership law
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.


Hello: A different Professional here.

My colleague is correct. You cannot prove a negative. The party alleging formation of a partnership has the burden of proof. However, see Revised Uniform Partnership Act (the “Act”), Title 25 of Revised Code of Washington, Chapter 25.05 for more information. You need to review the Act to see what potential argument your former colleague would make and prepare your defense. Specifically, Chapter 25.05 Section 25.05.055 deals with formation of partnership. A partnership can be formed without a formal agreement if the parties agree to be co-owners of a business for profit. However, the arrangement that you described is not co-ownership. Both of you were Independent contractors, you filed separate tax returns, never presented yourselves as co-owners of a business, you were paid directly by the manufacturer, etc. All these things are evidence that you did not have a partnership. Splitting of commission does not by any stretch of imagination make you partners.




http://apps.leg.wa.gov/rcw/default.aspx?cite=25.05.055




http://apps.leg.wa.gov/rcw/default.aspx?cite=25.05




Customer: replied 1 year ago.
She is saying we had an oral agreement which never existed. Are courts in the state of Washington looking at cases like this differently? Is it possible for me to get a justanswer attorney that practices in Washington State? I will rate and pay you now
Expert:  Phillips Esq. replied 1 year ago.

She is saying we had an oral agreement which never existed. Are courts in the state of Washington looking at cases like this differently?


Response 1:
I do not practice in Washington. However, Courts in general do not make any distinction when deciding cases of this sort. The person making the claim has to provide evidence regardless. Oral Agreement is inadequate in this circumstance because your arrangement was not set up as a partnership. She even claimed to be a Sole Proprietor. That would be relevant in any lawsuit she files against you claiming partnership.


Is it possible for me to get a justanswer attorney that practices in Washington State? I will rate and pay you now


Response 2
: It may be possible. I will have to opt out so that any Expert from Washington may attempt to comment on your post. Kindly note that an Expert from Washington can only get involved if the Expert thinks that he or she can help. So, you may not necessarily get another response. As soon as you review my response and tell me that it is alright for me to opt out, I will do so. I do want you to think that I do not like working with you. However, opting out is the only way another Expert can get involved in your post at this time.

Thank you for your understanding,

Customer: replied 1 year ago.
If you opt out can I still rate and pay you?
Expert:  Phillips Esq. replied 1 year ago.
Yes, you can.
Customer: replied 1 year ago.
Please opt out
Expert:  Phillips Esq. replied 1 year ago.
Okay. All the best
Expert:  Andrea, Esq. replied 1 year ago.

Good evening, Thank you for your question, My name is XXXXX XXXXX am a Licensed, Practicing Attorney with experience in formation of business entities and business transactions.

 

If your former colleague is suing you on the basis that you had a partnership, then she as the Plaintiff would have the burden of proving her case by a preponderance of the evidence she presents. I have researched Washington Law on Partnerships and have found that it is quite similar the Partnership laws of all the other States. Simply claiming that two individuals are partners is not enough to form a partnership. You and she were employed as Independent Contractors by the manufacturer. You were paid a commission by the manufacturer, but you were paid separately. The manufacturer did not pay the commissions by issuing one check made payable to you and her as partners, nor was it made payable in the name of a partnership.

 

Since this individual has sued you, it would be a good idea to take her deposition, during which you could ask her some specific questions such as,

 

1. How many years have you worked at (Name of manufacturer) ?

2. How many times has she received a commission check from the manufacturer?

3. Were any commission checks paid to you and her jointly ?

 

I will continue this in a few minutes. My computer just gave me a message that it needs to shut down and install updates and there is no way that I can stop it,

 

ANDREA

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11624
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
Andrea, Esq. and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
I would really appreciate and more info you can provide. I will make sure to give you a good bonus for your time. Thank you
Expert:  Andrea, Esq. replied 1 year ago.

Hi, I am back again, My apologies for the interruption, but there is no way to stop the computer from installing a "Windows update", or ask that it be done later, it just gives you a few minutes notice to save whatever it is you were doing, then goes ahead with its own agenda.

 

In asking questions, the secret is to never ask a question unless you already know the answer. So to continue with the questions I started before which should be posed to your former colleague, (The Washington Revised Uniform Partnership Act, the "Act" , Section 25.05.005 defines a "Partnership" as

 

"...an association of two or ore persons to carry on as co-owners of a business for profit.........."

 

Therefore, you could ask the following

 

4. What do you claim you owned with me ?

5. In what capacity were you hired by (Name of manufacturer) ?

6. How long did you work in that capacity

7. Did you ever receive any commission checks made payable to anyone other than your name ?

8. Did you ever receive any commission checks made payable to me ?

9. Did you ever receive any commission checks made payable to a partnership ?

10. Did you ever ask (Name of manufacturer) to issue one check representing the combined commissions of mine and yours ?

 

(If she answers no, then ask Q.11)

11. Why didn't you ever ask that a combined check be issued ?

 

(If she answers "yes", then skip 11 and ask Q12)

 

12. If you asked for a combined check, to whom would it be made payable ?

 

13. If you asked for a combined check made, was it ever issued as you asked ?

 

14. Why wouldn't (Name of manufacturer) issue a combined check for our commissions?

 

15. If I were to bring Mr. ______ (Name of owner of manufacturer) here, right now, and I were to ask him the same questions, would his answers be the same as yours ?

 

If your former colleague did not ask to split commissions from the outset, then ask,

 

16. When did you first ask (Name of manufacturer) to issue a combined check ?

 

17. That's ____ years after you started working for (Name of manufacturer), Why did you wait this long to ask that a combined check be issued ?

 

18. Did you ever ask me to enter into a partnership with you ?

(She would have to say yes)

 

19. When did you make this request ?

 

20. Did we have a discussion on the issue of partnership ?

 

21. Where did this discussion take place ?

 

22. And, what was my response ?

 

23. Why did you wait this long after this discussion to file a lawsuit ?

 

 

Depending on what responses your former colleague gave to some of the above questions, I would be able to formulate more questions you could ask her, but since I do not know anything about her, it is difficult to formulate questions that would specifically relate to this situation. If you could add further information about her, I might be able to formulate more questions. You would ask the same questions at trial (If it came to that) and since she is lying, she probably will not remember all of the answers she gave you.

 

Just remember, a partnership is not formed, simply because a party claims that a partnership exists. If that were the case, I could claim that I had a partnership with Donald Trump and claim one-half of his income. The fact that both of you were employed as Independent Contractors and paid as such, tends to disprove that a partnership existed, in light of the Act, Section 25.05.005(c)(ii) which reads in pertinent part, as follows:

 

(c) 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:

(ii) For services as an independent contractor or of wages or other compensation to an employee;


______________________________________________________________________

 

Please let me know if I have not Answered your question completely by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 




 

Customer: replied 1 year ago.
Thank you! I just added a bonus to your acct
Customer: replied 1 year ago.
If you know of any case law to support my case I would be happy to pay you for it. Thanks
Expert:  Andrea, Esq. replied 1 year ago.

Thank you for the Bonus, It was both kind and generous of you,

 

Can you think of anything else you can tell me about your former colleague so that I can try to think of more questions,

 

I do not know of any case law offhand and JustAnswer does not provide any legal research engines such as Lexis-Nexis because it is very expensive and legal research is very time consuming. I will try to do some research on my own and see if I can find any case law, but I cannot promise anything,

 

ANDREA

 

 

 

Customer: replied 1 year ago.
Thank you Andrea
Expert:  Andrea, Esq. replied 1 year ago.

Do you have an attorney ?

 

Have you filed an Answer to the Complaint ?

 

Can you tell me anything else about your former colleague ?

 

ANDREA

Expert:  Andrea, Esq. replied 1 year ago.

I found some case law and although it is old, it is good case law,

 

 

In "In Re the Matter of the Estate of Roy C. Thornton, Lucy Antoine, Appellant v. Theo Thornton, Appellee, 541 P.2d 1243 (1975), the Court cited, Nicholson v. Kilbury, 83 Wash. 196, at 202, 145 P. 189 (1915), and stated:

 

"The existence of a partnership depends upon the intention of the parties. That intention must be ascertained from all of the facts and circumstances and the actions and conduct of the parties. While a contract of partnership, either expressed or implied, is essential to the creation of the partnership relation, it is not necessary that the contract be established by direct evidence. The existence of the partnership may be implied from circumstances.........."

 

 

It is important to note that in its decision, the Court stated that it must be the intention of both parties that a partnership exists (plural - parties) and in order to have an "implied partnership", the Court will look at the actions and the conduct of the "parties" (again, plural). Both parties must intend that a partnership be formed, and it is the actions and conduct of both parties that will be examined by the Court. It is not enough for only one party to intend for a partnership to be formed, nor can the actions and conduct of only one party to be considered by the Court.

 

In Kintz v. Read, 626 P. 2d 52 (1981) Plaintiff Darlene Kintz sued Defendant for compensation for her services in a business bought and owned by Defendant. Defendant contended that the business was a partnership and denied that Plaintiff was due any compensation. The Trial Court held, and the Washington Court of Appeals agreed, that no partnership existed, stating:

 

"[t]here was no meeting of the minds of the parties sufficient to establish a partnership or an express contract between the parties ... relative to said business, its operation, sharing of profits and losses, interest of the parties upon acquisition, sale or dissolution, ...

 

The Trial Court further found that "plaintiff's services were of value to the business and to the defendant"; and that it was "reasonable for the defendant to have understood that the plaintiff expected compensation for such services";

 

On Appeal, Defendant Read contended that the Trial Court committed error in failing to find an implied partnership. The Appellate Court agreed with the Trial Court in stating that,

 

"The burden of proving a partnership is upon the party asserting its existence, and the evidence must be stronger as between the parties than when third parties allege its existence."

 

Additional cases which discuss the attributes of a partnership are the following:

 

Eder v. Reddick, 278 P 2d 361 (1955)

 

Nicholson v. Kilbury, 83 Wash. 196, 145 P. 189 (1915)

 

Omer v. Omer 11 Wn. App. 386, 523 P.2d 957 (1974)

 

 

The trial judge in the Omer case found, among other things, that

 

"there was not a meeting of the minds of the parties, that their discussions were loose and indefinite, that they had different goals, understandings and interests, and that their conduct ... is inconsistent with partnership or partnership principles.......... "

 

 

I hope that the above cases help,

 

___________________________________________________________________

 

Please let me know if I have not Answered your question completely by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

 

Customer: replied 1 year ago.
Trying to figure out how to leave you an additional bonus
Expert:  Andrea, Esq. replied 1 year ago.

I am not quite sure because we do not have the same screen as the customers. For example, I have only two buttons on my side - One for an "Information Request" and the other to send my "Answer" to the customer.

 

I know that when a customer rates an Expert's Answer, the Bonus window/Button comes up. if you like, you can simply rate my Answer in which I listed the case law I found and I will receive part of the deposit you placed with JustAnswer.

 

I am checking with JustAnswer exactly how a customer can leave a bonus without rating the Expert's Answer, and I will get back to you with their response.

 

In order to better familiarize myself with your situation, I read some of your other questions (which, as it turned out, were the same as the one I Answered), and you are certainly more than welcome to get as many opinions as you would like from JustAnswer, but anyone who is familiar with Partnership Law and does some legal research under Washington State's Revised Statutes, will be giving you the same Answers as you have already received. If you would like, I can certainly continue to do more research, but I doubt I will find anything different than I have already found. Basically, and as the case law indicates, the following principles govern your case:

 

1. The party asserting that a partnership exists (your former colleague) has the burden of proving by a preponderance of the evidence that a partnership exists;

 

2. Both parties must intend that a partnership is being formed. One party cannot unilaterally decide that a partnership exists simply because that party wants a partnership to exist;

 

3. There must be a meeting of the minds. Without this, no intent can be formed and no partnership can be created;

 

 

4. The Court may find an Implied Partnership by considering the conduct and the actions of both parties

 

 

5. The conduct and actions of both parties must be consistent with partnership principles;

 

 

6. One party alone, cannot form a partnership. It is the actions and conduct o both parties which the Court considers.

 

Nothing in your facts indicate any intent on your part to form a partnership and nothing can be inferred because you did nothing that was consistent with partnership principles. You must bring it to the Court's attention that you worked as an Independent Contractor for the same employer for 20 years and you always worked alone. You had nothing to gain by formin any kind of partnership. Your former colleague would be the sole beneficiary of an finding that a partnership existed. Therefore, all her statements are self serving.

 

 

But, even the actions and conduct of your former colleague were not consistent with partnership principles.

 

 

Did she offer half of her commission check to you ? No.

 

Were you both paid with one commission check and then divided it ? No.

 

 

If sharing travel expenses such as gas and tolls created even implied partnerships, then half of America who carpools to work would have a partnership interest in the income of the driver. And, as I said in one of my previous Answers, if a partnership could be formed by the intent, conduct and actions of only one party, then my intent, conduct and actions, and of course assertions of the existence of a partnership with Donald Trump would mean that I am partners with Donald Trump. It is only when we take these principles one step further and we see how ridiculous the result would be, that we begin to understand what the requirements of an express or implied partnership are and why the actions and conduct of both parties must be taken into account in determining whether or not a partnership really was the intent of both parties and if a partnership truly exists,

 

 

ANDREA

 

 

Customer: replied 1 year ago.
Andrea, thank you very much for all your time! I deeply appreciate your advice and cannot believe how conscientious you have been! Anyone using justanswer would be really fortunate to get you!!!! I'm going to rate you again and pay you a second time.

Thank you

If you come across anything else I'll always be willing to pay you for it
Expert:  Andrea, Esq. replied 1 year ago.

Hi, I not only take things personally, but I am also very stubborn. In over 25 years, I have not had to use the phrase, "I can't find the Answer".

 

I wish I could do more for you,

 

 

1. On what is your former colleague basing her assertions that a partnership existed?

 

 

2. Are you represented by an Attorney ?

 

 

 

3. Did you file an Answer to the Complaint ?

 

 

4. If not, can you send the Complaint as an Attachment ? It might give me some ideas on how to refute her allegations if I knew what she was alleging and on what she is basing her case,

 

 

Thank you,

 

 

ANDREA

 

 

 

 

 

 

Customer: replied 1 year ago.
How can I send you more info without it being public?
Expert:  Andrea, Esq. replied 1 year ago.

If you send the Complaint as an Attachment, nothing shows. I would have to open it in order to read it,

 

The site has been experiencing some technical difficulties these last several weeks and sometimes notifications are not received by the Experts, or we cannot get back into questions to post our Answers, or things simply just do not show up on the Customer's question page. In your last reply, you stated that you would rate me, but I see nothing in either of my last two Answers - Case law in one, and arguments in the other Answer - that would indicate that you have rated me. Kindly let me know if you rated either of my two last Answers because if you have, I will have to contact one of the moderators to fix the situation,

 

________________________________________________________________________

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

 

 

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11624
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
Andrea, Esq. and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
I rated you again plus added an additional bonus so you should be paid twice
Customer: replied 1 year ago.
Having trouble attaching. Do you have a way for me to send to you personally?
Expert:  Andrea, Esq. replied 1 year ago.

Thank you once again for the Excellent Service" rating and the Bonus, I appreciate it greatly,

 

Let me see if you can send it to the Moderators and they can send it to my email. I would give you my email, but the website prohibits any communication with customers, except through this forum. As I said, the site is experiencing all kinds of technical problems.

 

Let me see what the Moderators say and I will be right back to you with their response,

 

1. On what is your former colleague basing her assertions that a partnership existed?

2. Are you represented by an Attorney ?

 

 

3. Did you or the Attorney file an Answer to the Complaint ?

 

 

 

 

Customer: replied 1 year ago.
She is saying we had a oral agreement. Never did! Ive had the same tax acct for twenty years and she says she would have advised me to file 1065s if I had been in a partnership of any kind.

I have an attorney but feel like a second opinion is important. We have not answered the complaint yet.
Customer: replied 1 year ago.
I would love for you to see the complaint but I can't figure out how to get it to you
Expert:  Andrea, Esq. replied 1 year ago.

Hi, I sent an email to the Moderators telling them of the problem you are having in sending it as an Attachment and asked if you could send it to them and they would forward it to me.

 

I will let you know as soon as they respond to me.

 

Maybe, if you told me what trouble you are having, I might be able to help. If you scan the Complaint, save it either as a PDF file or a "Word" document. Then, click on the paper clip at the top of the box where you write your replies - You'll see a scissor, go across the bar to the box where the smiley face is. You will see a paper clip, that is the "Attachment" symbol. Click onto the paper clip, then click on "Browse". Find your saved document (Either PDF or "Word") and click "Open", then "Insert". Try it,

 

ANDREA

 

 

 

 

Customer: replied 1 year ago.
I'm trying to do it from my iPhone but will try on my computer as soon as I get home
Expert:  Andrea, Esq. replied 1 year ago.

That might be the source of the problem. I have not received a response from the Moderators yet. Will let you know when I do,

 

 

ANDREA

Customer: replied 1 year ago.


still trying to figure out why I cannot send an attachment

Customer: replied 1 year ago.
Andrea, I just found out that your site will not allow the attachment. If you can think of any other way for me to send it to you please let me know. Do you use Drop Box?
Expert:  Andrea, Esq. replied 1 year ago.

1. Are you using your computer now to try and send it ?

 

2. Do you see the paper clip at the top of your reply box ? (To the right of the smiley face).

 

I emailed the Moderators a couple of hours ago, but I have not heard anything as yet. I asked if we could use them as an"intermediary". if customers write their emails, the computer software picks up the "at" symbol in the email address and x's out the email address to protect the customer's privacy. I cannot tell you to write your email because it is a violation of site rules to have any communication with customers at any other level except for this forum, but I cannot stop customers who send it anyway. I do not know when the Moderators will get back to me. Can you explain what the problem is? Do you see the paper clip? I have used it several dozen times. Maybe, it's because the site has been experiencing technical problems for the last few weeks,

 

ANDREA

 

 

 

Customer: replied 1 year ago.
Yes technical difficulties. XXXXX@XXXXXX.XXX
Customer: replied 1 year ago.
Hcindeeeeataol.com
Expert:  Andrea, Esq. replied 1 year ago.

How many "e" in your name ? Is it Hcindeeee?

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