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Willard v. Parsons Hill Partnership8/5/2005
igations of the partnership. As we noted, actions for breach of the warranty of habitability are contract actions. Thus, in plaintiffs' instant contract action, Yvonne Rooney, as general partner in a limited partnership, may be held jointly liable for the partnership's contract liability. See Concra Corp. v. Andrus, 141 Vt. 169, 174-75, 446 A.2d 363, 365 (1982) (holding that a partner in a partnership without limited partners is jointly liable for all the partnership's contract liability). Furthermore, 11 V.S.A. § 1416, titled "Parties to actions," provides that " contributor, unless he is a general partner, is not a proper party to proceedings by or against a partnership." (Emphasis added). Thus, the statute permits a plaintiff to include a general partner as a proper party to proceedings against the partnership.
B. Limited Partner Liability
37. Plaintiffs claim that limited partners Catherine and William Rooney can also be held liable as general partners because they forfeited the protections afforded to limited partners when they participated in the control of the limited partnership. Specifically, plaintiffs allege that William and Catherine Rooney participated in the key conduct at issue here by serving as operators of the partnership's water system, by failing to disclose information about that water system to the tenants, and by failing to correct the water problem within a reasonable time. Limited partners enjoy protection from personal liability to third parties flowing from partnership business or conduct. 11 V.S.A. § 1397. A limited partner may lose this protection, however, by taking part in the control of partnership business in a manner that exceeds the rights and powers of a limited partner. Id. In such a case, a limited partner is treated as a general partner subject to suit in proceedings against the partnership. Id.; 11 V.S.A. § 1416.
38. Without making any findings or reference to the applicable law, the trial court concluded that William and Catherine Rooney were agents of the landlord not subject to suit. Conclusions of a trial court that are not supported by findings cannot stand. Bisson, 160 Vt. at 350, 628 A.2d at 1261. Moreover, courts are not empowered to find facts on a summary judgment motion. Berlin Dev. Assocs. v. Dep't of Soc. Welfare, 142 Vt. 107, 111, 453 A.2d 397, 399 (1982). Instead, the court's task is to examine the affidavits or other summary judgment evidence to determine whether a triable issue exists. Id.
39. Numerous summary judgment exhibits document the contact that William and Catherine Rooney, along with Yvonne Rooney, had with State water authorities and the engineer assisting with the water problem. These support the inference that William and Catherine Rooney participated in the alleged decisions, made on behalf of the partnership, to withhold information about the water from the tenants while not supplying an alternative source of safe water, thereby contributing to the ongoing breach of the partnership's habitability obligation. Affording tenants the benefit of all the reasonable doubts and inferences to which they are entitled as nonmoving parties on summary judgment review, we conclude that they have identified a triable question of fact regarding the extent to which William and Catherine Rooney participated in the control of partnership business. The issue is, therefore, remanded to the trial court.
III. Express Indemnity
40. Defendants cross-appeal the dismissal of their cross-claims for express indemnity from Taggart Brothers, Inc., the contractor who constructed the water supply system that was eventually identified as the source of the contaminated water. Defendants seek indem
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