                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3501-15T2


ROBERT BORTECK,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

THOMAS N. TORZEWSKI,

        Defendant/Third-Party Plaintiff-
        Appellant/Cross-Respondent,

and

JENNIFER L. MCINERNEY,

        Defendant,

v.

ROBERT D. BORTECK, PC,

        Third-Party Defendant-Respondent/
        Cross-Appellant.

____________________________________________

              Submitted September 11, 2017 – Decided September 25, 2017

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, General Equity Part,
              Essex County, Docket No. C-0006-13.
           Thomas N. Torzewski, LLC, attorneys for
           appellants (Jennifer L. McInerney, of
           counsel and on the brief).

           Nagel Rice, LLP, attorneys for
           respondents/cross-appellants (Jay J. Rice,
           of counsel and on the brief; Randee M.
           Matloff, on the brief).

PER CURIAM

     Plaintiff/third-party defendant Robert Borteck and

defendant/third-party plaintiff Thomas Torzewski practiced law

in the same law firm.1    Defendant asserted he was an equity

partner in the firm.     Plaintiff disputed that contention and,

after the parties filed competing motions for summary judgment

on this question, the court determined defendant was not an

equity partner.   Defendant appeals from the March 11, 2016 order

memorializing that decision, as well as from another provision

establishing defendant's compensation as a non-equity partner.

We affirm.

     Plaintiff cross-appeals from a provision in the order

compelling him to reimburse defendant $9,950 in FICA taxes

defendant paid on plaintiff's behalf.     We affirm this provision

as well.



1
    For simplicity, we refer to Borteck as plaintiff and
Torzewski as defendant for the balance of the opinion. Defendant
Jennifer L. McInerney was dismissed from this matter on summary
judgment, a decision that is not at issue in this appeal.

                                  2                         A-3501-15T2
                                 I

                                 A

    We recount each party's version of the material facts,

starting with defendant.    In February 2010, defendant joined

plaintiff's firm as a non-equity partner.     Defendant brought

with him a number of clients and acquired a one-percent capital

interest in the firm, and the firm was renamed Borteck, Sanders

& Torzewski, LLP.   However, only plaintiff was an equity

partner.   Defendant did not seek to be an equity partner when he

joined because his relationship with plaintiff was still in its

early stages.

    In 2011, Sanders left the firm, which was promptly renamed

Borteck & Torzewski, LLP.    Defendant continued as a non-equity

partner for the rest of that year.    In his motion papers,

defendant claimed he became an equity partner in 2012; the

record does not provide any details of the circumstances under

which plaintiff agreed defendant would be an equity partner.

Defendant did admit the parties never agreed upon the terms of

their partnership arrangement.

    The only evidence upon on which defendant relied in support

of his claim he became an equity partner was the firm issued to

him a schedule K-1 form for tax year 2012, and it commenced

paying for his health insurance.     The K-1 form indicates

                                 3                            A-3501-15T2
defendant received $233,326 in calendar year 2012, which was

23.8% of the firm's net profits.    For tax years 2010 and 2011,

when he was undisputedly a non-equity partner, the firm issued

defendant a W-2 form for each year.

    In addition to receiving the K-1 form and health insurance

from the firm, defendant contended the following privileges or

responsibilities were indicia signaling he was an equity

partner.   These indicia were he:   (1) had the authority to sign

checks and contracts on behalf of the partnership; (2) had

complete access to all financial information of the partnership;

(3) was a co-trustee of the partnership's 401k; (4) possessed

and used a partnership credit card; and (5) was involved in

management decisions of the firm, such as hiring and

establishing the salaries of employees, purchasing equipment,

and negotiating the terms of an office lease.   Significantly, we

note it is not contested defendant had these same privileges and

responsibilities when even he admits he was a non-equity

partner.

    In December 2012, the parties met to discuss year-end

bonuses and compensation.   Because he had originated one-third

of the firm's net profits that year, defendant proposed he get

one-third and plaintiff two-thirds of the firm's net income.

Plaintiff rejected this proposal and countered with a separation

                                4                          A-3501-15T2
agreement.    By the end of the month, the partnership ended and

defendant left the firm.    Litigation ensued shortly thereafter.

                                 B

    Plaintiff asserted defendant never became an equity

partner.    According to him, in January 2012, defendant

approached plaintiff and inquired whether he could acquire an

equity interest in the firm.    Plaintiff replied the issue could

be addressed at a later time but, in the meantime, the

compensation agreement into which the parties entered when

defendant started with the firm remained in place.

    That compensation agreement, the terms of which were set

forth in a series of emails exchanged between the parties, was

that defendant was to receive an annual base salary of $260,000,

conditioned on him generating working attorney receipts of

$525,000.    If defendant failed to meet such goal, his

compensation was to be reduced by $3,000 for every $10,000 he

failed to attain $525,000 in receipts.    Defendant was also

entitled to certain conditional bonuses and perquisites.

    Then, in December 2012, defendant announced to plaintiff he

became an equity partner as of January 1, 2012, and inquired

what his 2012 compensation would be.     Plaintiff disputed

defendant was an equity partner and, a few days later, plaintiff

presented defendant with a separation agreement.    Plaintiff did

                                 5                            A-3501-15T2
not want defendant in the firm because of his claim he was an

equity partner when he was not.       Defendant refused to sign the

agreement and left the firm days later.

    Plaintiff acknowledged defendant received a K-1 form for

tax year 2012, but explained defendant did so at his own

request, preferring to receive his full salary and to be

responsible for paying his own taxes.      In addition, the firm's

accountant recommended defendant be issued a K-1 form so the

partnership, which required at least two individuals to survive,

could continue.   Otherwise, plaintiff would have been forced to

create a corporation.

    Plaintiff acknowledged the 2012 K-1 form reflected a profit

distribution or draw of $233,326 and that this latter figure was

23.8% of the firm's net income.       However, the sum of $233,326

was not in fact tied to or calculated upon the firm's net

income.   This sum was merely defendant's salary for 2012, the

same salary he received the previous two years and was based

upon defendant's compensation agreement.      Knowing defendant's

annual salary, the accountant determined $233,326 was 23.8% of

the firm's net income, and entered these two figures on the K-1

form, accordingly.




                                  6                           A-3501-15T2
                                 C

       The court found there were no material issues of fact in

dispute, see R. 4:46-2(c), and determined the absence of a

partnership agreement providing defendant was an equity partner

and the terms of the agreement was fatal to defendant's claim.

The court thus granted plaintiff's and denied defendant's

motions for summary judgment.    The issues remaining after these

motions were decided were the amount of compensation owed to

defendant in 2012, and whether he was entitled to the return of

$9,950 FICA taxes defendant paid in 2012, which plaintiff as an

employer was obligated to pay.

       The parties were unable to settle these remaining disputes

and the court conducted a bench trial.    During the trial

plaintiff claimed defendant's compensation was as outlined in

the emails exchanged between the parties.    Defendant challenged

this contention, and alleged the parties agreed he would receive

an annual salary of $254,000, a discretionary bonus, an annual

car allowance of $6,000, and the payment of certain

miscellaneous expenses, such as Bar Association dues.

       At the conclusion of the trial, the court found the emails

comprised the parties' agreement on defendant's compensation,

and determined plaintiff owed defendant $3,282 in additional

pay.   Further, the court found plaintiff owed defendant $9,950

                                 7                           A-3501-15T2
for a portion of FICA taxes defendant paid in 2012 that were, as

employer, plaintiff's obligation to pay.

                                 II

    On appeal, defendant's principal challenges are: (1) he

established under the Uniform Partnership Act (UPA), N.J.S.A.

42:1A-1 to -56, that he became an equity partner in 2012; (2) he

established under the common law he was an equity partner; (3)

the court failed to appreciate there were material issues of

fact that precluded summary judgment; (4) there was insufficient

evidence the emails exchanged between the parties comprised

their agreement on defendant's compensation as a non-equity

partner; and (5) even if the emails did contain the terms of the

parties' agreement, the court failed to properly apply those

terms.

    In his cross-appeal, plaintiff asserts the court erred when

it determined he owed defendant $9,950 for FICA taxes.

    Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law."    R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 528-29 (1995).   When deciding a summary judgment

                                 8                         A-3501-15T2
motion, the court "must accept as true all evidence which

supports the position of the party defending against the motion

and accord him the benefit of all legitimate inferences which

can be deduced therefrom."     Id. at 535 (internal quotation marks

omitted).   If reasonable minds could differ, the motion must be

denied. Ibid.   Raising mere issues of fact is insufficient to

defeat a motion for summary judgment.    In order to defeat an

adversary's motion for summary judgment, a party must offer

facts in opposition that are material.     Judson v. Peoples Bank &

Trust Co. of Westfield, 17 N.J. 67, 75 (1954).     Disputed issues

that are of an insubstantial nature cannot overcome a motion for

summary judgment.   Brill, supra, 142 N.J. at 530.    If the moving

papers show there is no material issue of fact, then summary

judgment can be granted.     Judson, supra, 17 N.J. at 75.   We

review the trial court's grant of summary judgment de novo,

employing the same standard used by the trial court.     Davis v.

Devereux Found., 209 N.J. 269, 286 (2012).

    The burden of proving a partnership is on the party

asserting its existence.     See Fenwick v. Unemployment Comp.

Comm'n, 133 N.J.L. 295, 300 (E. & A. 1945).     We first address

defendant's claim he established he was an equity partner under

the UPA and, thus, his motion for summary judgment should have

been granted and plaintiff's motion denied.    Defendant relies

                                  9                          A-3501-15T2
upon certain language in three provisions of the UPA.    These are

N.J.S.A. 42:1A-10(a), N.J.S.A. 42:1A-10(c)(3), and N.J.S.A.

42:1A-21(b).    We address each provision and why none is availing

to defendant.

    The language upon which defendant relies in N.J.S.A. 42:1A-

10(a) states, "the association of two or more persons to carry

on as co-owners a business for profit forms a partnership,

whether or not the persons intend to form a partnership."

(emphasis added).    Here, there is no evidence plaintiff and

defendant were ever co-owners of the firm.    Although he acquired

a capital interest of one-percent in the firm when he joined,

that interest did not make defendant a co-owner.    After all, as

even he concedes, defendant was a non-equity partner in 2010 and

2011 despite that minimal acquisition, and there is no evidence

he later acquired a greater ownership interest in the firm.

    The particular language in N.J.S.A. 42:1A-10(c)(3)

defendant claims supports the premise he was an equity partner

states, "[a] person who receives a share of the profits of a

business is presumed to be a partner in the business[.]"

However, there is no evidence defendant was entitled to or

received a share of the profits.

    In addition to some perquisites, defendant received

compensation in accordance with an agreement that based his pay

                                10                          A-3501-15T2
upon a fixed formula that was tied to his and not the firm's

performance.   His compensation was neither related to nor

dependent upon the firm's profits or losses.   To be sure,

defendant was paid out of firm's profits, but there was no

agreement defendant was entitled to receive a share of those

profits.   Defendant received his compensation in accordance with

an employment agreement he entered into with an equity partner

of the firm, not as a consequence of an agreement that permitted

him to share in and receive the firm's profits.

    Further, the fact defendant received a K-1 form in 2012 did

not create a genuine issue of material fact that is sufficient

to defeat plaintiff's motion for summary judgment.   Defendant

continued to be compensated in accordance with the agreement the

parties had entered in 2010.   The percentage of income set forth

on the K-1 form as defendant's "draw" was deliberately

calculated to be consistent with the salary defendant received

pursuant to the parties' 2010 compensation contract.     Further,

there was no evidence defendant shared in the firm's profits –

other than as any other creditor of the firm – or losses.

    Finally, defendant relies upon N.J.S.A. 42:1A-21(b), which

provides, "[e]ach partner is entitled to an equal share of the

partnership profits and is chargeable with a share of the

partnership losses in proportion to the partner's share of the

                               11                            A-3501-15T2
profits."    This provision governs when there is a partnership

agreement.   Because defendant did not establish there was such

an agreement, this provision is not implicated.

    Defendant next asserts, under the common law, he

established he was an equity partner.    The parties are in accord

the UPA is not the exclusive authority governing when a

partnership is formed, that resort to the common law is

permitted to determine a party's relationship to a partnership.

Both parties rely upon Fenwick, supra, 133 N.J.L. 295.

    In this matter, our then highest court established the

factors that are to be considered when determining whether one

is an equity partner in a partnership.    See id. at 297-300.

These factors are: (1) the intention of the parties; (2) the

sharing of the partnership's profits; (3) the sharing of the

partnership's losses; (4) the ownership and control of the

partnership's property and business; (5) the "community of power

in administration and the reservation in the agreement of the

exclusive control of the management of the business"; (6)

whether the language of the agreement excludes one party from

"most of the ordinary rights of a partner"; (7) the conduct of

the parties toward third persons, including taxing authorities,

clients, and others; and (8) the rights of the parties on

dissolution.   Ibid.

                                12                          A-3501-15T2
    After considering these factors, we reject defendant's

contention he established he was an equity partner and, thus,

the court erred when it granted plaintiff's but denied his

motion for summary judgment.   We briefly address these factors.

    As for the intent of the parties, the record is devoid of

any details about how defendant allegedly became an equity

partner in January 2012.   There is no evidence of the

circumstances under which plaintiff allegedly assented to

defendant acquiring an equity interest in the firm.      Certainly,

it is uncontested the parties never entered into an agreement

setting forth the terms of the partnership arrangement.

    Defendant's primary argument is the fact the firm issued

the K-1 form to him and commenced paying for his health

insurance constitutes evidence he became an equity partner.       We

previously addressed the weight to be accorded the K-1 form; in

context, the K-1 is not evidential defendant became an equity

partner in the firm.   That the firm paid for defendant's health

insurance is insignificant; providing such a benefit is often

afforded to employees in the workplace.   There is simply an

absence of evidence plaintiff intended to make defendant an

equity partner.

    Turning to the second and third factors, there is no

evidence defendant shared in the partnership's profits and

                               13                            A-3501-15T2
losses.   As for the fourth and fifth factors, while defendant

enjoyed certain privileges and had various administrative and

managerial responsibilities, he had those same privileges and

responsibilities when he was undisputedly a non-equity partner.

The sixth factor is inapplicable because there was no

partnership agreement.

     As for the seventh factor, plaintiff concedes defendant

was held out as a partner; however, there was no evidence

defendant was held out as an equity partner to the public.     The

final factor, the rights of the parties on dissolution, does not

apply as there was no agreement.

    After analyzing these factors, none of which supports

defendant's position but for, arguably, the seventh one, we are

satisfied the court did not err because it failed to find

defendant to be an equity partner under the common law, and thus

granted summary judgment in plaintiff's favor.

    We have examined defendant's remaining arguments, as well

as plaintiff's arguments in support of his cross-appeal, and

determine they are without sufficient merit to warrant

discussion in a written opinion.    R. 2:11-3(e)(1)(E).

    Affirmed.




                               14                           A-3501-15T2
