Primo v. Pierini, 2012 IL App (1st) 103553-U discusses the key elements of a joint venture and how it differs from other common business arrangements.
The plaintiff contractor sued a construction manager to recover about $300k in building improvements it made in building a Chicago restaurant. The construction manager was hired by the restaurant owner and was actively involved in funding the construction.
The construction manager in turn filed a third party suit against the restaurant owner for contribution. It (the construction manager) claimed that it merely lent money to the restaurant owner and that there was no formal business relationship between them.
After a bench trial, the court found a joint venture existed between the construction manager and the restaurant owner based on their oral agreement to share restaurant profits among other reasons.
The court entered judgment for the plaintiff for nearly $300k and awarded defendant about $150K (one-half of the judgment) in its third-party claim against the restaurant operator. The court later reduced the judgment to about $140k after excising over $150k in extras and prejudgment interest from the judgment amount. Each side appealed.
Result: Reduced judgment (minus extras and interest) affirmed.
The appeals court agreed with the trial court that there was a joint venture between the construction manager and restaurant owner.
– A joint venture is an association of two or more persons or entities to carry out a single, specific enterprise;
-Whether a joint venture exists is a factual inquiry and no formulaic rules ultimately determine whether a joint venture exists;
– Where the parties’ conduct evinces an intent to share profits from a common enterprise, the court will find a joint venture exists;
– The key joint venture elements are: (1) an express or implied agreement to carry on an enterprise; (2) a manifestation of intent by the parties to be associated as joint venturers; (3) joint interest as shown by the contribution of property, money or knowledge by each joint venturer; (4) joint control or ownership over the enterprise; and (5) the joint sharing of profits and losses;
– Like a partnership, each joint venture participant is an agent of the other one and is liable to third parties for another participant’s acts taken in the regular course of the venture’s business;
– Unlike an LLC or corporation, a joint venture is not a separate legal entity (i.e. like a corporation, LLC or limited partnership is): instead, a joint venture is a contractual relationship formed between the constituent venturers;
– Joint ventures can be made up of individuals, corporations, or a combination of the two.
The court rejected the defendant construction manager’s claim that it was only a lender (and not a partner or joint venturer) to the restaurant business. The construction manager relied on section 202 of the Illinois Partnership Act (805 ILCS 206/202(a), (c)), which provides that receiving debt repayments from a business venture signals a lender-borrower relationship instead of a profit sharing/partnership one. (¶ 59-60)
Here, the court credited trial testimony that the parties planned to split profits well after the restaurant owner repaid the defendant’s loan. In addition, the construction manager’s principal’s self-serving written statement that “I am not a partner” wasn’t sufficient to cast doubt on the trial testimony that defendants and the restaurant owner agreed to share profits indefinitely. (¶ 62)
In sum, the defendants’ active and direct involvement in funding the restaurant’s construction coupled with the agreement with the owner/operator to share in the profits manifested the intent to form a joint venture.
– A hallmark of a joint venture is the sharing of profits and losses in a common, one-time enterprise;
– Where one party lends money to another, this generally denotes a lender-borrower arrangement; not a joint venture or partnership one;
– Each enterprise participant’s active involvement in day-to-day functioning of a business, coupled with profit and loss sharing, is strong evidence of joint venture relationship.