Opinion
No. C5-99-1271.
Filed December 21, 1999.
Appeal from the District Court, Hennepin County, File No. 9710434.
Donald G. Clapp, Michele M. Danielson, Clapp Erickson, (for appellant)
Richard P. Mahoney, Paul E. D. Darsow, Mahoney, Dougherty and Mahoney, P.A., (for respondent Cab Services, Inc.)
Michael J. Tomsche, Tomsche, Sonnesyn Tomsche, P.A., (for respondent Vehicles, Inc.)
Deborah C. Eckland, Karen I. Johnson, Rider, Bennett, Egan Arundel, L.L.P., (for respondent L-C Services, Inc.)
Patrick H. Elliot, Elliot Law Offices, P.A., (for respondent Sevand, Inc.)
George C. Hottinger, Gregory C. Schultz, Erstad Riemer, P.A., (for respondent Fox of Becker, Inc.)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
While crossing Minnehaha Avenue near 9th Street in Minneapolis, Kevin Fernow was struck by a Red and White taxi. The taxi sped away, preventing witnesses from obtaining a license number. Fernow sued respondents, alleging they had legal liability under the theory of joint enterprise or agency. On appeal from summary judgment, Fernow argues genuine issues of material fact regarding respondents' control over the taxi and relationship with the driver prevent judgment as a matter of law. We affirm.
DECISION
On appeal from summary judgment, this court asks two questions: (1) are there any genuine issues of material fact; and (2) did the lower court err in its application of the law. Norwest Bank Minn., N.A. v. State Farm Mut. Auto. Ins. Co., 588 N.W.2d 743, 745 (Minn. 1999); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
To establish a joint enterprise, Fernow must prove respondents had a mutual understanding for a common purpose and each respondent had a right to a voice in the direction and control of the means used to carry out the common purpose. Delgado v. Lohmar, 289 N.W.2d 479, 482 (Minn. 1979); Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 657 (Minn.App. 1992), review denied (Minn. Dec. 15, 1992); see also Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn.App. 1985) (holding whether joint enterprise exists is question of law), review denied (Minn. Sept. 16, 1985). To establish agency, there must be a fiduciary relationship resulting from a manifestation of consent that one person shall act on behalf and subject to control of another. A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 290 (Minn. 1981); see White v. Boucher, 322 N.W.2d 560, 566 (Minn. 1982) (noting existence of agency is question of fact, and party alleging agency has burden of proof).
The record demonstrates: (1) Cab Services did not own any taxis; (2) each individual owner retained control over its vehicles and was responsible for maintenance, insurance, and licensing; (3) each owner had the power to determine which drivers leased its taxis; (4) each owner kept the profits from leasing its own taxis; (5) there was no joint income among the owners; (6) any owner could sell its taxi or decide not to use Cab Services at any time; (7) the drivers were not employees of Cab Services, but were independent contractors who leased taxis from the owners; and (8) the only control Cab Services wielded over the drivers was that delegated by the owners or required by Minneapolis ordinance. Because the owners had control over their own taxis, and did not have any legal right of control over any other owner's taxi, there was no joint enterprise or agency as a matter of law. See Delgado, 289 N.W.2d at 483 (holding no joint enterprise among group of hunters who each kept separate care, custody, and control of own guns); A. Gay Jenson Farms, 309 N.W.2d at 290 (declaring agency results from an agreement wherein one party manifests consent to have another act on his or her behalf subject to his or her control). Although the contracts between the drivers and the owners may contain facts tending to create a genuine issue, Fernow failed to present that evidence. Under these circumstances, the trial court did not err in granting summary judgment for the respondents.