Wiesner v. Bbd Partnership

No. 92-278
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT WIESNER and FRANK HARTMAN, JR.
Plaintiffs and Appellants,
BBD PARTNERSHIP, a Montana general
partnership and DOUG FELLER,
RODGER WILSON, ROBERT TAYLOR,
and MELVIN McNEA, Individually,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry Spear; Matovich, Addy & Keller, Billings,
Montana
For Respondents:
Rodney T. Hartman; Herndon, Hartman, Sweeney &
Halverson, Billings, Montana
Submitted on Briefs: October 29, 1992
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from a judgment entered after a non-jury
trial in the Thirteenth Judicial District, Yellowstone County, the
Honorable Robert W. Holmstrom presiding. The District Court found
the parties to be joint venturers and denied appellants' claim for
usury penalties. We affirm.
The dispositive issues on appeal are:
1. Did the District Court err in finding that the parties
were involved in a joint venture?
2. Should the District Court have applied usury laws to this
"transaction" whether or not it was a joint venture?
Appellants Frank Hartman, Jr. (Hartman) and Robert Wiesner
(Wiesner) travelled to a Burlington Northern (BN) derailment near
Ranchester, Wyoming, around February 2, 1988, to inspect the site
for a possible bid on the salvage of nineteen railway cars of
lumber. The lumber was to be cleared from the site and salvaged.
Hartman had worked as a laborer on several salvage operations for
BN but had never done a lumber salvage or bid on one himself.
Wiesner had started his own business selling dimension lumber in
1982. Hartman was to provide the expertise necessary to do the
actual clean up and salvage. Wiesner was to provide the expertise
necessary to sell the salvaged lumber. They calculated a bid to
present to BN. Although Hartman was aware that he would have to
pay cash if his bid were accepted, he went ahead and submitted a
bid of $113,663 even though he did not have the cash available. He
submitted the bid on February 4, and it was accepted by BN around
2
3: 00 p.m. that day. Payment was due by 5: 00 p.m. the next day.
H a r t m a n and Wiesner exhausted their avenues of funding but were
unable to obtain the necessary cash. On the evening of February 4,
they asked Dave Anderson (Anderson), a business associate of
Wiesner's, to obtain the funding if possible.
At approximately 9:00 p.m. that day, Anderson contacted Doug
Feller (Feller), the managing partner of BBD Partnership (BBD),
through the advice of another BBD partner, Me1 McNea. Anderson
explained what Hartman and Wiesner were trying to do and some of
the figures they had calculated. Feller met the next morning with
Hartman, Wiesner, and Anderson. They discussed the project
further, and Feller contacted BN to confirm the details.
The four men negotiated an agreement under these urgent
circumstances without the aid of legal counsel. The result was a
which set forth the terms of
document entitled simply "Agreementtg
the negotiations in rough detail. All four men contributed to the
agreement and reviewed it before they signed the final draft around
4:00 that afternoon.
BBD did not have the $113,663 necessary to satisfy the bid and
could not get that much from a commercial lender in time because it
required the approval of a loan committee. Therefore, BBD borrowed
$100,000 from an individual and the balance from a commercial
lender. BBD paid the individual lender 12% interest and a $5,000
fee on the borrowed funds and paid the commercial lender 12%
interest. Only BBD and its partners were liable for repaying these
loans. BBD delivered a cashier's check directly to BN in time for
the 5:00 p.m. deadline. Neither Hartman, Wiesner, nor Anderson
signed a promissory note to repay BBD the money. Nor did BBD
obtain a security interest on any of their assets. Under the
agreement, BBD was to receive 15% interest on the funds, a $27,500
fee, and 3% of the net profit.
Feller testified at trial that BBD would get involved only if
it could own the lumber. However, BN required Hartman's name on
the salvage contract because he submitted the bid. At the last
minute Feller Associates, a sole proprietorship owned by Feller,
was put on the bill of sale and the salvage contract along with
Hartman Construction.
Wiesner eventually negotiated a deal with Fallow Forest
Products (Fallow) to sell most of the lumber. Feller first learned
of the deal when Fallow contacted him to determine where to wire
the money. Testimony from Wiesner and Feller indicates that Fallow
wanted to buy BBD out of the transaction completely and become a
part of the transaction itself, which it eventually did, becoming
a one-fourth partner. Fallow also wanted BBD to waive its claim to
three percent of the profit in getting completely out. At that
point Feller contacted his partners in BBD and recommended that
they get out of the transaction because he saw friction developing
between Hartman, Wiesner, and Anderson. Feller felt it would be in
BBD's best interest to waive their share of the net profit and get
out.
BBD waived its claim to a share of the profit when Fallow sent
it a check for $143,000 on or around February 23. At that point,
the parties considered BBD's participation in the project complete.
Almost two years later, Hartman's attorney sent a letter to
Feller asserting that the interest rate charged in this transaction
exceeded the allowable rate under § 31-1-107, MCA (1987). Hartman,
Wiesner, and Anderson then brought suit. Anderson assigned his
interest in the suit to Hartman and Wiesner and was dismissed. The
District Court found that the transaction involved here was not a
loan from BBD, rather the parties were involved in a joint venture
to which the usury laws did not apply.
Did the District Court err in finding that the parties were
involved in a joint venture?
In reviewing the District Court's finding that the transaction
amounted to a joint venture, we are guided by Rule 52(a),
M.R.Civ.P., under which findings of fact are to be set aside only
when they are clearly erroneous. This Court will uphold the lower
court's findings where there is substantial credible evidence to
support them even though the record contains evidence supporting
contrary findings. Trad Indus., Ltd. v. Brogan (1991), 246 Mont.
In its Findings of Fact, the District Court stated:
The Court finds that the transaction between the parties
was not a loan but was in fact a joint venture wherein
the parties pooled their respective assets and talents
for the completion of a specified transaction, the
salvage and sale of the lumber and agreed to divide
between themselves the proceeds from the sale; that the
actual performance of the venture, the salvage, the sale,
the record keeping, was to be done by the members of the
venture.
We have defined a joint venture as a Itenterpriseundertaken by
several persons jointly, and more particularly, as an association
of two or more persons to carry on a single business enterprise for
profit. It has also been defined, somewhat variantly, as a special
combination of persons undertaking jointly some specific adventure
for profit.I9 Sunbird Aviation, Inc. v. Anderson (1982), 200 Mont.
438, 444, 651 P.2d 622, 625 (quoting Rae v. Cameron (l94l), 112
Mont. 159, 167, 114 P.2d 1060, 1064) . It is essential that each
party contribute property, money, skill, knowledge, or effort,
although the contributions need not be equal or of the same
character. Rae, 114 P.2d at 1064-1065.
In the Memorandum accompanying its Findings of Fact and
Conclusions of Law, the District Court addressed the requisite
elements of a joint venture and found that each had been satisfied.
To qualify as a joint venture there must be: 1 ) an express or
implied agreement or contract creating the joint venture; 2) a
common purpose among the parties; 3) community of interest; and 4)
an equal right of control of the venture. Papp v. Rocky Mtn. Oil
& Minerals, Inc. (1989), 236 Mont. 330, 342, 769 P.2d 1249, 1257.
As to the first element, Hartman, Wiesner, Anderson, and
Feller negotiated a deal and drafted a document they simply
entitled ItAgreementtt
without the aid of legal counsel and under the
constraint of the 5:00 p.m. deadline. The document, though less
than artfully drafted, purports to memorialize their agreement. It
does contain what appear to be inconsistencies, but those do not
warrant a reversal of the District Court's findings. See Trad
Indus., Ltd., 805 P.2d at 59. The first time the transaction is
referred to it is referred to as "this joint venture" and the next
two times it is referred to as "this venture." The use of the word
Itthislt
seems to make all parties to the agreement part of the joint
venture.
The second requirement is that the parties share a common
purpose. The purpose here was to salvage and resell the lumber for
a profit. All parties were to receive a share of the net profit,
albeit a small percentage for BBD.
The third element requires a community of interest. Each
participant played a vital role in this project. Hartman had the
expertise to salvage the lumber; Wiesner had the expertise to sell
the lumber. Both of them were necessary in order to prepare a bid
for the salvage project. Anderson became involved at their behest
to acquire financing for the project. BBD became involved at
Anderson's behest because it could provide the necessary venture
capital. They were in this venture together, each providing a
necessary element to ensure that the salvage project was completed.
The last element requires that the parties have an equal right
of control. In this case, BBD requested ownership of the lumber as
a condition of its participation. This was accomplished by putting
the lumber in the name of Hartman Construction and Feller
Associates jointly. BBD, through Feller, clearly had a right to
control the sale of the lumber. The fact that appellants may have
subverted that control by negotiating a sale in BBDtsname without
its authority does not diminish BBD1s right to control. Further,
by the terms of the Agreement, Feller Associates was to be used for
the accounting on this venture.
We hold that there was substantial credible evidence to
support the District Court's finding that the parties were involved
in a joint venture.
II
Should the District Court have applied usury law to this
"transactionu whether or not it was a joint venture?
Appellants argue that joint venturers can loan money to the
venture and that those loans are subject to usury laws. They cite
Bennett v. Wise River Lumber Co. (1955), 129 Mont. 228, 284 P.2d
990, and Felska v. Goulding (lggO), 245 Mont. 188, 800 P.2d 161, in
support of their argument. We find Bennett inapplicable and Felska
clearly distinguishable. The transactions in Felska were intended
to be loans, clearly denominated as loans, and made after the
initial investment capital was contributed to the venture in order
to keep the venture afloat. Here, however, the transaction
involved the initial venture capital for the salvage project.
The District Court noted that the parties had not called its
attention to any "Montana cases wherein the Court was asked to
determine whether an agreement, which provided for the payment of
interest to one of the parties, was a loan or a joint venture
agreement." It relied on Atkinson v. Wilcken (Cal. Dist. Ct. App.
1956), 298 P.2d 147, and Martter v. Byers (Cal. Dist. Ct. App.
1946), 171 P.2d 101, in determining that the usury laws did not
apply. In Atkinson, the plaintiff owned dwelling units on which a
$4,000 balloon payment was past due resulting in foreclosure
proceedings against the property. The defendant provided the
$4,000 and required the plaintiff sign a $6,000 promissory note, a
third trust deed, and a grant deed to the property. The plaintiff
contended this was a loan. The defendant contended they were co-
owners and were to share the profits from the sale of the property.
The plaintiff claimed that defendant charged a usurious rate on the
money. The court held that the parties were involved in a joint
venture to which the giving of the note and security was "an
incidental part of the entire transaction,Iqand declined to find a
usurious transaction. Atkinson, 298 P.2d at 149. In Martter, the
court held that the usury laws did not apply to the transaction
because it was a joint venture even though the agreement called for
interest to be paid under certain circumstances. Martter, 171 P.2d
at 107,
Based on these cases, the ~istrictCourt concluded that Ifthe
fact of payment of interest and the agreement by Hartman, Anderson
and Wiesner to fpersonally guaranty BBD Partnership in this
venturef were incidental parts of the transaction and therefore,
not c~ntrolling.`` agree.
We
Affirmed.
January 12, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Terry Spear
Matovich, Addy & keller
2812 First Ave. No.
Billings, MT 59101
Rodney T. Hartman
Herndon, Hartman, Sweeney & Halverson
P.O. Box 80270
Billings, MT 59108-0270
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA