Wiesner v. BBD Partnership
| Citation | 845 P.2d 120,256 Mont. 158 |
| Decision Date | 12 January 1993 |
| Docket Number | No. 92-278,92-278 |
| Parties | Robert WIESNER and Frank Hartman, Jr., Plaintiffs and Appellants, v. BBD PARTNERSHIP, a Montana general partnership and Doug Feller, Rodger Wilson, Robert Taylor, and Melvin McNea, Individually, Defendants and Respondents. |
| Court | United States State Supreme Court of Montana |
Terry Spear, Matovich, Addy & Keller, Billings, for plaintiffs and appellants.
Rodney T. Hartman, Herndon, Hartman, Sweeney & Halverson, Billings, for defendants and respondents.
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 3:00 p.m. that day. Payment was due by 5:00 p.m. the next day. Hartman 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, Mel 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 document entitled simply "Agreement" which set forth the terms of 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. 439, 447, 805 P.2d 54, 59.
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 Sunbird Aviation, Inc. v. Anderson (1982), 200 Mont. 438, 444, 651 P.2d 622, 625 (quoting Rae v. Cameron (1941), 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...
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