Business Court (In Judge McGuire's First Opinion) Outlines The "Indispensable Requirements" For The Formation Of A Partnership
Well, newest Business Court Judge Gregory McGuire has gotten off to a running start with his first opinion, issued only about a week after his appointment to the Business Court by Governor McCrory. The case is La Familia Cosmovision, Inc. v. The Inspiration Networks, 2014 NCBC 51.
The main issue in La Familia concerned whether La Familia could pursue its claims that it and one of the Defendants had formed a partnership aimed at the development of a Spanish-language network called "La Familia Cosmovision." It sought a declaratory judgment recognizing that the parties were in a partnership. Judge McGuire ruled that there were insufficient allegations to establish the existence of a partnership and granted the Defendants' Motion to Dismiss.
The "Indispensible Requirements" For Forming A Partnership
Judge McGuire stated that:
there are . . . two 'indispensable' requirements that must be met for a legal partnership to exist. The first requirement is 'sharing of any actual profits.' The second 'indispensable requisite' is that of 'co-ownership of the business.' Failure to properly plead allegations supporting the existence of one or both of these elements is fatal to a claim for declaratory judgment of an implied partnership.
Op. ¶36 (emphasis added)(relying on Wilder v. Hobson, 101 N.C. App. 199, 202 (1990) and McGurk v. Moore, 234 N.C. 248, 252 (1951)).
An important point from the La Familia case is that an agreement to share revenue (which was at least an ancillary part of the parties' agreement) does not meet the "indispensable requirement" of a sharing of profits, There's nothing groundbreaking in this because, as Judge McGuire observed, the NC Supreme Court said 100 years ago that "an agreement to share gross returns does not create a partnership, for the reason that such an agreement is inconsistent with the joint ownership of the profits." Op. ¶37 (quoting Buie v. Kennedy, 164 N.C. 290, 294 (1913)).
A Partnership Must Include An Agreement To Share Losses
But if sharing profits is an essential element, what about the flip side of that? Must there also be an agreement to share losses? North Carolina law was ambiguous, or at least "not clear" on this point, said Judge McGuire. Op. Par. 41. But the Judge imposed some clarity on this issue, holding that "[t]he general rule under the Uniform Partnership Act, and other law, is that an agreement to share losses as well as profits is essential to the existence of a partnership." Op. ¶42 (quoting 59A Am. Jur. 2d Partnership § 155 (2014).
The Letter of Intent which Plaintiff said had established the partnership said nothing about loss sharing. It said that the Plaintiff and the Defendant were each "solely responsible for all expenses incurred with the performance of their respective obligations under this LOI and any subsequently executed agreement." Op. Par. 38.
Co-Ownership Was Lacking
There was no evidence suggested by Plaintiff that it and the Defendants "ever combined assets or co-owned partnership property or any common legal entity.
Furthermore, the Letter of Intent stipulated that the Defendant Inspirational Networks, Inc. was the sole owner of the name "La Familia Cosmovision." The Plaintiff had only a license to use that name.
Other factors which led to the Court's grant of the Defendants' Motion to Dismiss were the lack of a partnership tax return ever being filed and that no partnership bank account had ever been established. Op. Par. 48. Another factor sinking Plaintiff's claim was that a provision in the Letter of Intent said, under the heading "Relationship of the Parties," that the Defendant was an "Independent Contractor" and that "nothing in this agreement shall be construed to create a joint venture." Op. ¶48.
It didn't help Plaintiff's claim either to rely on "casual statements" made by the Defendant to third parties that it had a "partnership" with the Plaintiff. The doctrine of "partnership by estoppel" was not applicable because Plaintiff's claim was not based directly on any of those statements. Op. ¶46 & n.54.
A Question About Suing An Entity Operating Under An Assumed Name
Oh, and there is one other tidbit from the La Familia decision which is worth mentioning. The Plaintiff had sued two Defendants: The Inspirational Networks, Inc., the corporate entity which had signed the Letter of Intent, and also The Inspiration Networks, the assumed name under which the corporation was doing business.
Could it sue both the corporation and the assumed name under which it was operating? Judge McGuire said that this appeared to be an issue of first impression in North Carolina and ruled that Plaintiff could not sue both the corporation and the assumed name entity:
For the same reason that it would be nonsensical to name the same entity or individual twice as a party to an action, a plaintiff cannot maintain an action against both a legal entity and its assumed name.
Op. Par. 29.
So, in addition to alleging the "indispensable requirements" of a partnership before suing to establish a partnership, don't sue unnecessary defendants.