joint venture – Paul Porvaznik

Discovery Screw-Up Not Enough To Sustain Negligence Claim – 7th Cir.

Nixing an $8M Federal jury verdict, the Seventh Circuit recently held, among other things, that a discovery rule violation cannot undergird a negligent misrepresentation claim.

The plaintiffs in Turubchuk v. Southern Illinois Asphalt Company, 958 F.3d 541 (7^thCir. 2020), twice sued a joint venture consisting of two paving contractors for personal injuries sustained in a 2005 traffic accident. The first lawsuit, sounding in negligence, settled for $1MM, the amount plaintiff believed was the maximum available insurance coverage based on the defendant’s for the JV defendant’s attorneys’ pretrial discovery disclosures.

When the plaintiffs learned that the $1MM coverage cap only applied to the joint venture entity and not to the venture’s component companies, they sued again. This second suit alleged fraud and negligent misrepresentation – that the defendant’s counsel misrepresented its insurance coverage limits. Plaintiffs eventually went to trial only on their negligent misrepresentation claim.

This second suit culminated in the jury’s $8MM-plus verdict. Defendant appealed citing a slew of trial court errors.

Reversing, the Court first considered the effect of Defendant’s erroneous Rule 26 disclosure. Under Illinois law, an actionable negligent misrepresentation claim requires proof of a legal duty on the person making the challenged statement to convey accurate information.

The Plaintiffs alleged the Defendant’s duty was found in the disclosure requirements of Rule 26 – the Federal rule governing pre-trial witness and document disclosures. The Court found no case authority that grounded a negligence duty in a federal procedural rule. Instead, the Court noted, cases from the 9^thCircuit and 7^thCircuit held just the opposite and further opined that discovery rules are “self-policing:” a discovery violation subjects the violator to sanctions under Rules 26 and 37.

The 7^thCircuit also ruled that the District Court erred in finding as a matter of law (on pretrial summary judgment and in-limine orders) that defendant breached its duty to plaintiffs and that plaintiffs justifiably relied on the representations.

Whether a defendant breaches a legal duty and whether a plaintiff reasonably relies on a representation are natural fact questions. Here, on the existence of a legal duty prong, there were a plethora of unanswered questions – i.e. what information did the attorney have at his disposal when plaintiff made a $1MM policy limits (or so he thought) demand before discovery even started? – that raised possible disputed fact questions that are normally jury questions. The District Court’s pre-trial ruling on these issues hamstrung the defendant’s efforts to challenge whether defendant’s counsel acted negligently. [15]

Another trial court error stemmed from the non-reliance clause contained in the written release that settled the Plaintiffs’ first negligence lawsuit. A non-reliance clause will normally foreclose a future fraud suit since reliance is one of the salient fraud elements.

That said, Illinois case law is in flux as to whether a non-reliance clause precludes a later fraud action.

In addition, whether reliance is justified in a given fact setting is quintessentially a triable fact question involving what a statement recipient knew or could have learned through the exercise of ordinary prudence. This case authority uncertainty coupled with the multiple fact issues endemic to the justifiable reliance inquiry made it improper for the District judge to make a per se, pre-trial finding that plaintiffs justifiably relied on the defendant’s counsel’s insurance coverage disclosure.

The evidence was also conflicting on whether the defendant entities even had a joint venture. Whether or not defendants were a joint venture was integral to the amount of insurance available to settle Plaintiffs’ claims and so it impacted the causation and damages elements of plaintiffs’ negligent misrepresentation case.

A hallmark of a joint venture is joint ownership or control of a business enterprise. See http://paulporvaznik.com/joint-ventures-in-illinois-features-and-effects/6699. This created disputed fact questions that should have been decided by the jury.

Next, the Court overturned the jury’s finding that Plaintiffs’ established that Defendant’s attorney intended to induce Plaintiffs’ reliance on the amount of available insurance coverage. [The intent to induce reliance element was the only negligent misrepresentation element that went to the jury.]

Federal Rule of Evidence 602 requires a witness to testify based on personal knowledge.

However, there was no such testimony adduced at trial. Instead, the only trial evidence on this negligent misrepresentation element was Plaintiffs’ counsel’s self-serving speculative testimony that defendant’s counsel misrepresented the available insurance coverage to induce Plaintiffs’ to accept a relatively paltry $1MM to settle the case. [21, n. 11]. Moreover, the District Court improperly excluded evidence of Plaintiff’s counsel’s credibility since he had previously surrendered his law license in lieu of disbarment for alleged acts of dishonesty, fraud or misrepresentation. See FRE 608.

In the end, the Court found there was insufficient evidence at trial for the jury to find that Defendant’s counsel intended to induce Plaintiffs’ reliance on the Rule 26 discovery disclosures of insurance coverage.

Afterwords:

A negligent misrepresentation claim cannot be premised on violation of a Federal discovery rule;

The court invades province of the jury when it rules on elements that are inherently fact-driven;

Evidence Rules 602 and 608 respectively limit a trial witness to testifying to matters of personal knowledge and allow an opponent to probe that witness’s credibility by delving into his/her reputation for truthfulness.

Federal Court Grapples with Illinois Account Stated and Joint Venture Theories in Broken Airline Pact

The Illinois Northern District recently examined the contours of Illinois fiduciary duty, account stated, and joint venture breach claims in Flair Airlines v. Gregor, LLC, 2018 WL 4404649 (N.D.Ill. 2018)(slip copy).

The plaintiff airline company hired the defendants to rebrand and create a technological infrastructure for the airline including a website and online reservation system. While the defendants/counter-plaintiffs prepared a written agreement that formalized the terms of the venture (which called for future multi-year profit-sharing agreements, among other things), the airline never signed the agreement. This was done, according to counter-plaintiffs, for the airline to buy time to form a competing business in Canada and to leverage the fruits of defendants’ work.

The parties’ business relationship eventually crumbled and the airline sued defendants for unfair competition and deceptive trade practices. (The thrust of the complaint was that defendants were wrongfully using plaintiff’s domain names and websites, among other allegations).

Defendants counter-sued for account stated, breach of fiduciary duty, and breach of the never-signed joint venture agreement. The airline moved to dismiss all counterclaims.

The Court first denied the plaintiff’s motion to dismiss defendants’ account stated claims.

In Illinois an account stated is a form of proving damages on a pre-existing obligation. It is an alternative legal theory to one sounding in breach of contract for a plaintiff to recover the same damages asserted in a contract action.

An account stated determines the amount owed between parties who have previously conducted monetary transactions with each other.

Where a plaintiff renders a statement of account to a defendant who retains the statement beyond a reasonable amount of time without objection, the law views this as a tacit acknowledgement of the statement’s validity.

However, an account stated “cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed.”

The Court found that the counter-plaintiffs’ allegations that they regularly sent invoices to the plaintiff who then retained them without objection, were enough to state a colorable account stated claim.

The court also sustained the counter-plaintiffs’ breach of fiduciary duty claim against the airline.

Under Illinois law, a breach of fiduciary duty plaintiff must allege (1) a fiduciary relationship, (2) a breach of the fiduciary duty, and (3) injury resulting from the breach. Fiduciary duties exist as a matter of law in a joint venture relationship.

The court found the counter-plaintiffs’ allegations that they formed a joint venture with the airline to expand its business and build the airline’s operations and reservations systems and the airline’s abandonment of the venture was enough to state a viable fiduciary duty claim under Federal notice pleading standards.

On the counter-plaintiffs’ breach of joint venture (JV) claim, the Court noted that under Illinois law, a JV exists where there is (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) a joint interest as shown by the parties’ contribution of property, financial resources, effort, skill or knowledge; (4) a degree of joint ownership over the enterprise including the mutual right to exercise control over it; and (5) the joint sharing of profits and losses.

The court rejected the plaintiffs’ argument that the joint venture claim was defeated by the Statute of Frauds. In Illinois, a contract that cannot be performed within the space of one year must be in writing in order to be enforceable. The plaintiff argued that since part of the alleged JV contemplated future three-year contracts between the airline and the defendants’ company, a writing was required.

The Court disagreed. It found the unsigned JV provided evidence of the key terms of the parties’ business arrangement and that even so, a sender’s name on an email could satisfy the signature requirement of the Statute of Frauds.

The court ultimately dismissed the counter-plaintiffs’ JV claim though since the counterclaim didn’t properly identify the JV members. The Court granted the counter-plaintiffs’ 14 days leave to replead the JV count.

Take-aways:

Where a plaintiff sends a statement of account to another who retains the statement beyond a reasonable time without objection, this can establish an account stated.

A joint venture doesn’t have to be in writing and can give rise to breach of fiduciary duty claim.

On the Statute of Frauds question, this case solidifies the dual propositions that (1) the formal execution of a contract isn’t necessary if a court can piece together the key contract terms through various writings, and (2) a properly authenticated email can serve as proxy for signature requirement of Statute of Frauds.

Hotel Titan Escapes Multi-Million Dollar Fla. Judgment Where No Joint Venture in Breach of Contract Case

In today’s featured case, the plaintiff construction firm contracted with a vacation resort operator in the Bahamas partly owned by a Marriott hotel subsidiary. When the resort breached the contract, the plaintiff sued and won a $7.5M default judgment in a Bahamas court. When that judgment proved uncollectable, the plaintiff sued to enforce the judgment in Florida state court against Marriott – arguing it was responsible for the judgment since it was part of a joint venture that owned the resort company. The jury ruled in favor of the plaintiff and against Marriott who then appealed.

Reversing the judgment, the Florida appeals court first noted that under Florida law, a joint venture is an association of persons or legal entities to carry out a single enterprise for profit.

In addition to proving the single enterprise for profit, the joint venture plaintiff must demonstrate (i) a community of interest in the performance of the common purpose, (ii) joint control or right to control the venture; (iii) a joint proprietary interest in the subject matter of the venture; (4) the right to share in the profits; and (5) a duty to share in any losses that may be sustained.

All elements must be established. If only one is absent, there’s no joint venture – even if the parties intended to form a joint venture from the outset.

The formation of a corporation almost always signals there is no joint venture. This is because joint ventures generally follow partnership law which follows a different set of rules than do corporations. So, by definition, corporate shareholders cannot be joint venturers by definition.

Otherwise, a plaintiff could “have it both ways” and claim that a given business entity was both a corporation and a joint venture. This would defeat the liability-limiting function of the corporate form.

A hallmark of joint control in a joint venture context is mutual agency: the ability of one joint venturer to bind another concerning the venture’s subject matter. The reverse is also true: where one party cannot bind the other, there is no joint venture.

Here, none of the alleged joint venturers had legal authority to bind the others within the scope of the joint venture. The plaintiff failed to offer any evidence of joint control over either the subject of the venture or the other venturers’ conduct.

There was also no proof that one joint venture participant could bind the others. Since Marriott was only a minority shareholder in the resort enterprise, the court found it didn’t exercise enough control over the defaulted resort to subject it (Marriott) to liability for the resort’s breach of contract.

The court also ruled in Marriott’s favor on the plaintiff’s fraudulent inducement claim premised on Marriott’s failure to disclose the resort’s precarious economic status in order to entice the plaintiff to contract with the resort.

Under Florida law, a fraud in the inducement claim predicated on a failure to disclose material information requires a plaintiff to prove a defendant had a duty to disclose information. A duty to disclose can be found (1) where there is a fiduciary duty among parties; or (2) where a party partially discloses certain facts such that he should have to divulge the rest of the related facts known to it.

Here, neither situation applied. Marriott owed no fiduciary duty to the plaintiff and didn’t transmit incomplete information to the plaintiff that could saddle the hotel chain with a duty to disclose.

Take-aways:

A big economic victory for Marriott. Clearly the plaintiff was trying to fasten liability to a deep-pocketed defendant several layers removed from the breaching party. The case shows how strictly some courts will scrutinize a joint venture claim. If there is no joint control or mutual agency, there is no joint venture. Period.

The case also solidifies business tort axiom that a fraudulent inducement by silence claim will only prevail if there is a duty to disclose – which almost always requires the finding of a fiduciary relationship. In situations like here, where there is a high-dollar contract between sophisticated commercial entities, it will usually be impossible to prove a fiduciary relationship.

Source: Marriott International, Inc. v. American Bridge Bahamas, Ltd., 2015 WL 8936529

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