First Public Corp. v. Parfet

• Decision Date: 16 March 2001
• Docket Number: Docket No. 203145.
• Citation: First Public Corp. v. Parfet, 246 Mich.App. 182, 631 N.W.2d 785 (Mich. App. 2001)
• Parties: FIRST PUBLIC CORPORATION, First Venture Corporation, and Lou Beer, Plaintiffs-Appellants/Cross-Appellees, v. William U. PARFET, IRDC Acquisition Corporation, and MPI Research, L.L.C., Defendants-Appellees/Cross-Appellants, and J.W. Henry Watson, Caledonia Group Incorporated, and Thomas J. Hoogeboom, Defendants-Appellees, and IRDC Acquisition Company, L.L.C., Defendant.
• Court: Court of Appeal of Michigan — District of US

631 N.W.2d 785

246 Mich. App. 182

FIRST PUBLIC CORPORATION, First Venture Corporation, and Lou Beer, Plaintiffs-Appellants/Cross-Appellees, v.William U. PARFET, IRDC Acquisition Corporation, and MPI Research, L.L.C., Defendants-Appellees/Cross-Appellants, andJ.W. Henry Watson, Caledonia Group Incorporated, and Thomas J. Hoogeboom, Defendants-Appellees, andIRDC Acquisition Company, L.L.C., Defendant.

Docket No. 203145.

Court of Appeals of Michigan.

Submitted November 7, 2000, at Detroit.

Decided March 16, 2001.

Approved for Publication May 22, 2001, at 9:20 a.m.

Released for Publication August 8, 2001.

Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Detroit, for First Public Corporation, First Venture Corporation, and Lou Beer.

Howard & Howard Attorneys, P.C.(by James H. Geary), Bloomfield Hills, for William U. Parfet, IRDC Acquisition Corporation, and MPI Research, L.L.C.

Verspoor, Waalkes, Lalley, Slotsema & Talen, P.C.(by Daniel J. Slotsema), Grand Rapids, for Thomas J. Hoogeboom.

Richard L. Steinberg, P.C.(by Richard L. Steinberg), Detroit, for J.W. Henry Watson, Caledonia Group, Inc., and IRDC Acquisition Company, L.L.C.

Before GRIBBS, P.J., and MICHAEL J. KELLY and SAWYER, JJ.

PER CURIAM.

PlaintiffFirst Public Corporation(First Public) filed this appeal as of right, challenging several orders granting summary disposition in favor of the various defendants.DefendantsWilliam U. Parfet(Parfet), IRDC Acquisition Corporation, and MPI Research, L.L.C.(hereafter collectively referred to as the Parfet defendants), have filed a joint cross appeal for the purpose of advancing alternative reasons in support of the trial court's grant of summary disposition in their favor.During the pendency of this appeal, the other two appellants, First Venture Corporation(First Venture) and Lou Beer(Beer), were added as plaintiffs, nunc pro tunc, pursuant to a stipulation entered into by the parties.This Court previously granted a motion to affirm by defendantIRDC Acquisition Company, L.L.C. Unpublished order of the Court of Appeals, entered July 17, 1998(Docket No. 203145).Having considered plaintiffs' arguments regarding the other defendants, we find that they have not shown any basis for disturbing the trial court's orders of summary disposition.Hence, we affirm.

I

We first consider plaintiffs' claims concerning the two motions for summary disposition brought by defendantsJ.W. Henry Watson and Caledonia Group, Inc.(hereafter collectively referred to as the Watson defendants and individually as Watson and Caledonia, Inc.).We review de novo the trial court's decisions granting summary disposition.Spiek v. Dep't of Transportation,456 Mich. 331, 337, 572 N.W.2d 201(1998).

Plaintiffs first claim that there are issues of fact concerning the existence of a "joint venture" or "partnership."We note that the trial court ruled in plaintiffs' favor in deciding the Watson defendants' motions, holding during the hearing on the first motion that summary disposition should be denied under MCR 2.116(C)(8)(failure to state a claim) because "there is probably enough to assert a joint venture" and during the hearing on the second motion that summary disposition should be denied for Caledonia, Inc., under MCR 2.116(C)(10)(no genuine issue of material fact for trial) because

Plaintiff can meet its burden of going forward on whether there is a joint venture by virtue of the purported admissions on the part of both parties, the non-compete agreement and other activities that are asserted on the part of the various parties, the court believes they could meet their burden of going forward as to whether or not there was a joint partnership or joint venture.

However, we will address plaintiffs' claim because the relationship between the parties is an essential issue in this case and Caledonia, Inc., argues that there was no joint venture.An appellee may urge in support of a judgment in its favor reasons rejected by a trial court without taking a cross appeal.Ass'n of Businesses Advocating Tariff Equity v. Public Service Comm.,192 Mich.App. 19, 22, 480 N.W.2d 585(1991).Because the proper resolution of this issue requires a consideration of proofs outside the pleadings, we limit our review to the trial court's decision holding that there was no genuine issue of material fact for trial under MCR 2.116(C)(10).Spiek, supra at 337, 572 N.W.2d 201.In reviewing the trial court's decision, we consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the opposing party.Quinto v. Cross & Peters Co.,451 Mich. 358, 362, 547 N.W.2d 314(1996).The granting of summary disposition is appropriate if the opposing party fails to present evidentiary proofs creating a genuine issue of material fact for trial.Smith v. Globe Life Ins. Co.,460 Mich. 446, 456, 597 N.W.2d 28(1999).

We conclude that the trial court did not err in determining that the opposing party, First Public,¹ met its burden of showing a genuine issue of material fact regarding the existence of a joint relationship with Caledonia, Inc.However, the trial court made too broad a ruling when it determined that a factual question existed concerning the existence of either a partnership or a joint venture.

We note that the specific relationship pleaded in the first amended complaint was a joint venture, not a partnership.However, even if the first amended complaint could be construed as alleging a partnership, First Public did not present evidentiary proofs showing the existence of a legal partnership.The use of the word "partner" by Beer and Watson, in their representative capacities for First Public and Caledonia, Inc., was not controlling and was insufficient, under the circumstances of the case, to create a genuine issue of fact for trial.Miller v. City Bank & Trust Co.,82 Mich.App. 120, 266 N.W.2d 687(1978).The absence of evidence that First Public and Caledonia, Inc., carried on a business as coowners for profit was fatal to a claim of partnership.Moore v. DuBard,318 Mich. 578, 593-594, 29 N.W.2d 94(1947);MCL 449.6(1).

Plaintiffs' reliance on Opdyke Investment Co. v. Norris Grain Co.,413 Mich. 354, 320 N.W.2d 836(1982), to argue that a factual issue was shown with regard to the existence of a "joint venture" or "partnership" is misplaced.It is true that, as a principle of contract law, parties can execute a series of increasingly detailed contracts as a project proceeds, with each contract legally binding.Id. at 360, 320 N.W.2d 836.However, viewing the proofs most favorable to First Public, the only intent evidenced here by an objective standard, relying on both the express words of the parties and their visible acts, was a joint enterprise between First Public and Caledonia, Inc., to find investors with whom they could form an association to try to purchase the International Research and Development Corporation(IRDC) or its assets and that could have potentially taken on the form of a limited partnership.SeeKamalnath v. Mercy Memorial Hosp. Corp.,194 Mich.App. 543, 548, 487 N.W.2d 499(1992)(a valid contract requires a meeting of the minds on all essential terms);LeZontier v. Shock,78 Mich.App. 324, 333, 260 N.W.2d 85(1977)(intent is of prime importance in ascertaining the existence of a partnership);Berger v. Mead,127 Mich.App. 209, 215, 338 N.W.2d 919(1983)(intent is the key consideration in determining the existence of a joint venture).

While the phrases "joint venture" and "joint enterprise" are sometimes used interchangeably, we find the phrase "joint enterprise" to provide the more accurate characterization of the legal relationship between First Public and Caledonia, Inc., with regard to which a genuine issue of material fact existed, because there is no evidence that the undertaking to find investors was in and of itself a project for profit.A "joint enterprise" is generally defined as "`an undertaking to carry out a small number of acts or objectives, which is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise.'"Id. at 216, n. 5, 338 N.W.2d 919, quoting48A C.J.S., Joint Ventures, § 3, p. 395.

In sum, while the trial court's ruling was too broad, we uphold its denial of the second motion for summary disposition brought by Caledonia, Inc., under MCR 2.116(C)(10) to the extent the ruling encompasses a "joint enterprise."With evidence of this business relationship in mind, we next consider plaintiffs' claim concerning the trial court's grant of the first motion for summary disposition brought by Caledonia, Inc., under MCR 2.116(C)(10) regarding the duration of the "joint enterprise".Upon review de novo, we conclude that plaintiffs have not demonstrated error in the trial court's consideration of Beer's fax, dated July 23, 1995, as the time of termination.

In a joint venture context, the "nature of that venture, the duties, responsibilities and liabilities of the parties between themselves and to others would in a large measure flow from the agreement they entered into."Goodwin v. S A Healy Co.,383 Mich. 300, 307, 174 N.W.2d 755(1970).A court relies on contract law to construe the parties' intent.Id. at 309, 174 N.W.2d 755.Intentions are manifested by words and actions, and not a secret intent.See, e.g., Paul v. Bogle,193 Mich.App. 479, 493-494, 484 N.W.2d 728(1992)(addressing contract repudiation).Further, if a contract contains essential terms, but details of performance are missing, the law will supply the missing details by construction.Nichols v. Seaks,296 Mich. 154, 159, 295 N.W. 596(1941).A joint venture, like a partnership, that does not contain a stipulation for its duration may be terminated at any time.Posner v. Miller,356 Mich. 6, 9, 96 N.W.2d 110(1959).

Having considered the proofs presented...