Westbrook v. Swiatek, 2011 Ohio 781

Background

Appellant Westbrook and Bonner Companies entered into a June 24, 1999 MOU under which Westbrook would develop property with Bonner financing and share profits per defined percentages; no formal partnership/joint venture was created.
Bonner Companies owned the real property; Westbrook did not own land and acted as an officer/employee under the Bonner umbrella for each deal.
Bonner died in 2003; thereafter the Bonner Daughters (and outside directors) continued the ventures, including Cobbleton and Huntley properties; relationship deteriorated in 2005 leading to MOU termination for current projects.
Litigation began in 2006 seeking accounting, dissolution, and other relief; a receivership was imposed in 2007 and later vacated on appeal (Westbrook I).
The Second Amended Complaint (2008) asserted multiple Counts seeking declaratory relief, accounting, dissolution, fiduciary duties, injunctive relief, receiver appointment, partition, and indemnification; Count Eight alleged breach of the MOU against individuals, later contested as to corporate defendants.
The trial court granted partial summary judgment (2009) on several counts and later directed verdict against Westbrook on Count Eight; trial proceeded on breach of contract against Bonner Daughters, resulting in judgment for the Daughters.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a partnership or joint venture existed between Westbrook and Bonner Daughters	Westbrook asserts implied/partnership status via MOU and post-Bonner actions.	No partnership or joint venture; Bonner Companies owned land; MOU did not create personal liability.	No genuine partnership or joint venture; Counts One–Five and Thirteen lacking essential elements; counts resolved accordingly.
Whether trial court properly granted summary judgment on Counts One, Two, Three, Four, Five, Seven, Ten, Thirteen, and Fourteen	Questions of partnership and ongoing venture should preclude summary judgment.	Law of the case and undisputed facts show no partnership; summary judgment appropriate.	affirmed; the court held no genuine issues of material fact supporting partnership/joint venture; related counts resolved in favor of Appellees.
Whether the unjust enrichment claim (Count Nine) was properly dismissed given an express contract	Unjust enrichment operates where no contract governs compensation for Westbrook's hours.	MOU governs profits and compensation; unjust enrichment not available where express contract exists.	Affirmed; unjust enrichment barred by existence of the MOU governing compensation.
Whether the trial court abused its discretion in denying leave to amend to add a breach of contract claim against the Bonner Companies	Amendment should conform to evidence that MOU was between Westbrook and Bonner Companies.	Late amendment would be prejudicial and outside the pleadings; discovery and trial already tailored.	No abuse of discretion; amendment denied.
Whether the directed verdict on Count Eight (breach of contract) was proper	Personal liability of Bonner Daughters under the MOU should be triable.	MOU was between Westbrook and Bonner Companies; personal liability of individuals not established.	Directed verdict for Bonner Daughters; no error.

Key Cases Cited

Westbrook I, 2008-Ohio-6477 (5th Dist. 2008) (reversed receivership appointment; clarified partnership/joint venture standards)
Westbrook II, 2010-Ohio-2868 (5th Dist. 2010) (contempt/fee award; related to proceedings in this case)
Delicom Sweet Goods of Ohio, Inc. v. Mt. Perry Foods, Inc., 2004-Ohio-6645 (5th Dist. 2004) (unjust enrichment where express contract exists; summary judgment upheld)
Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (law-of-the-case doctrine governs subsequent proceedings)
Grendell v. Ohio EPA, 146 Ohio App.3d 1 (5th Dist. 2001) (defining elements of partnership)
Al Johnson Construction Co. v. Kosydar, 42 Ohio St.2d 29 (1968) (joint venture concept and community interest)