Marszalk v. Van Volkenburg

Dore, J.

(concurring) — Defendants Alburas were dismissed as defendants on a motion for summary judgment. The trial judge held as a matter of law that the Marszalk building project was not a partnership project of architects Van Volkenburg and Alburas. The granting of the summary judgment of dismissal was improper if there were any issues *650of fact raised in the pleadings and supporting affidavits. The nonmoving plaintiff Marszalk is entitled to any inferences from such evidence in his favor.

The sole issue involved in the subject case is whether or not the Marszalk project was a partnership project of Van Volkenburg and Alburas or the project of architect Van Volkenburg, an independent architect.

Pursuant to RCW 25.04.130, partners of a copartnership are jointly and severally liable for the torts committed by one partner acting in the ordinary course of the business of the partnership over the authority of his copartners. Garringer v. Hurn, 1 Wn. App. 485, 462 P.2d 556 (1969). In Gar ringer, the court stated that it is elementary that a partnership's tort liability becomes the separate liability of each partner. If, however, the copartnership is dissolved, the rule as stated above does not apply.

In Harris v. Zier, 43 Wash. 573, 576, 86 P. 928 (1906), it was stated: "One member of a partnership after dissolution cannot bind the partnership except so far as necessary for winding up its business."

A key document, designated exhibit B and attached to one of the affidavits, provided as follows:

January 10, 1975
It is hereby mutually agreed as an amendment to our partnership agreement that from the above date only those projects involving previous clients and/or public work will be a part of the partnership. All other work will be done by the individual acquiring the work without compensation or responsibility to the partnership.
The partnership group insurance is to be continued for the partnership as a part of this amendment.
Any separate business of either partner, architectural or otherwise, shall not be a part of the amended partnership and therefore neither partner shall be held liable for the other's separate business ventures.
/s/ Donald C. Van Volkenburg_ Donald C. Van Volkenburg
/s/ Ermie C. Alburas_ Ermie C. Alburas

*651If this amendment to the partnership agreement of the two architects Van Volkenburg and Alburas was in existence prior to Marszalk's retaining architect Van Volkenburg, it follows that the Marszalk architectural project was not a partnership project but the separate project of Van Volkenburg. Both architects in their affidavits and depositions testified that the above memorandum was agreed to prior to January 10, 1975. However, they both also agree that such memorandum was not signed until June 23, 1977. These statements seem to raise some question as to whether or not the memorandum was in effect prior to the Marszalk architectural project.

The architectural drawings of Van Volkenburg, prior to the agreement of January 10, 1975, identified the partnership as Van Volkenburg and Alburas, Architects. Architectural drawings subsequent to January 10, 1975, identified only the individual architect Van Volkenburg. In the subject case the Marszalk building project plans set forth a logo in large print across the face of the drawing as "Architect Donald C. Van Volkenburg, A.I.A." To me this is conclusive evidence that the partnership logo had been changed to the logo of the individual architect meaning Marszalk was not a previous client. Clearly Marszalk was a "new" client and was not included in the continuation of the partnership of Van Volkenburg and Alburas.!

I agree with the majority that the trial court correctly dismissed Alburas as a party defendant.