McFadden, Presiding Judge.James Potts and two limited liability companies bearing his name filed suit against Edward Rueda and Courtney Lewis, asserting various contract and tort claims. Rueda counterclaimed for breach of an oral partnership agreement. The trial court denied Potts and the companies’ motion for summary judgment as to the counterclaim and granted Rueda’s motion seeking appointment of an auditor. Potts and the companies appeal, challenging those two trial court rulings. Because there exist genuine issues of material fact as to the existence of a partnership and there has been no showing that the trial court abused its discretion in granting the request that an auditor be appointed, we affirm.1. Summary judgment. Potts and the companies argue that the trial court erred in denying summary judgment on Rueda’s counterclaim because there is no evidence that a partnership existed. We disagree.On appeal from a grant or denial of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.
Keisha v. Dundon, ___ Ga. App. ___ (Case No. A17A1534, decided January 22, 2018) (citation and punctuation omitted). Here, Rueda pointed to specific evidence showing the existence of an oral partnership agreement between him and Potts. See McMillian v. McMillian, 310 Ga. App. 735, 736 (1) (713 SE2d 920) (2011) (oral partnership agreement can be effective); Asgharneya v. Hadavi, 298 Ga. App. 693, 697 (4) (680 SE2d 866) (2009) (partnership may be formed by oral agreement); Vitner v. Funk, 182 Ga. App. 39, 42-43 (2) (354 SE2d 666) (1987) (partnership may be created by a written or oral contract). In response to the motion for summary judgment, Rueda testified by affidavit that he and Potts had entered into an oral partnership agreement, the terms of which included each partner having a 50 percent equity stake in the partnership, the partners sharing equally in the expenses and revenues of the partnership, and the two partners making equal cash contributions to the partnership. Rueda also pointed to evidence showing that he had contributed over $63,000 to the partnership and he testified that Potts had held him out to third parties as his partner.Potts and the companies contend that Rueda’s affidavit testimony contradicts testimony he gave in a another case and thus it must be construed against him under the contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). See Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992) (Prophecy rule concerning contradictory testimony applies to prior testimony given in another case and not merely to testimony given in the current case); accord Shiver v. Norfolk-Southern Ry., 225 Ga. App. 544, 547 (1) (484 SE2d 503) (1997) (“The Supreme Court, in Hudgens[, supra], held that the contradictory testimony rule applies to any prior testimony and not merely to testimony given at the trial of the case.”). The contention is without merit. In Prophecy, the Supreme Court of Georgia announced a general rule for construing contradictory testimony made by a summary judgment respondent: When a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must construe the contradictory testimony against [him]. In such a case, the court must disregard the favorable portions of the contradictory testimony and then decide whether the remaining evidence is sufficient to get by summary judgment. For purposes of the Prophecy rule, testimony is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. However, contradictory testimony is not to be construed against a party if [he] offers a reasonable explanation for the contradiction.
