The Court rejected Plaintiff’s argument that a provision limiting its recovery of damages for breach of contract was an unenforceable penalty, ruling instead that this was a valid liquidated damages provision. 

The Court also found there to be a question of fact whether one of the Defendants had been a part of a joint venture, so that he could be personally bound under a contract even though he had not signed it.  The Court denied this Defendant’s statute of frauds argument on that basis, stating the following with regard to joint ventures:

{14}  A joint venture is “an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, but without creating a partnership in the legal or technical sense of the term.” Pike, 274 N.C. at 8, 161 S.E.2d at 460 (citing In re Simpson, 222 F. Supp. 904, 909 (M.D.N.C. 1963)). An express agreement is not required to prove the existence of a joint venture. See Rhue v. Rhue ___ N.C. App. ___, ___, 658 S.E.2d 52, 59 (2008); see also Wike v. Wike, 115 N.C. App. 139, 141, 445 S.E.2d 406, 407 (1994). Rather, intent to create a joint venture can be inferred by the conduct of the parties and the surrounding circumstances. See Rhue, ___ N.C. App. at ___, 658 S.E.2d at 59; see also Wike, 115 N.C. App. at 141, 445 S.E.2d at 407. The existence of a joint venture “may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were [co-adventurers] and acted as such.” Davis v. Davis, 58 N.C.App. 25, 30, 293 S.E.2d 268, 271 (1982) (citing Eggleston v. Eggleston, 228 N.C. 668, 674, 47 S.E. 2d 243, 247 (1948)). “Facts showing the joining of funds, property, or labor, in a common purpose . . . in which each has a right . . . to direct the conduct of the other[s] through a necessary fiduciary relation[ship]” is sufficient for finding the existence of a joint venture. Pike, 274 N.C. at 8, 161 S.E.2d at 460; Cheape v. Chapel Hill, 320 N.C. 549, 561, 359 S.E.2d 792, 799 (1987).

{15} In North Carolina, joint ventures are similar to partnerships, and they are “governed by substantially the same rules.” Jones v. Shoji, 336 N.C. 581, 585, 444 S.E.2d 203, 205 (1994). A hallmark of a partnership is the sharing of “any profits, income, expenses, joint business property or hav[ing] authority of any kind over each other.” Wilder v. Hobson, 101 N.C. App. 199, 203, 398 S.E.2d 625, 628 (1990).

In another opinion issued at the same time in the same case, the Court granted the motion for summary judgment of another Defendant (Allen) on the same grounds, finding that there was no genuine material issue of fact as to Allen’s lack of association with the claimed joint venture.  That opinion is Azalea Garden Board & Care v. Vanhoy, 2008 NCBC 7 (N.C. Super. Ct. March 17, 2009).

Full Opinion