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Fleissner v. Perillo

A-5884-02T5 (N.J. Super. App. Div. 2004) (Unpublished)

PARTNERSHIPS—The existence of a partnership agreement must be proven by a preponderance of the credible evidence.

A woman and a close friend had invested together in real estate projects. During the woman’s lengthy absences from the country, her friend looked after the woman’s property. The two “routinely advanced funds to one another as needed.” The woman contended that she became aware of a building for sale and that she asked her friend to “check out the property as a suitable purchase in which they would share as partners,” but that her friend appropriated it for herself. In fact, her friend did buy the building and eventually sold it for a profit. That led to litigation.

There was no partnership agreement. Consequently, each party pointed to “various circumstantial items” to show either that a partnership existed or that one did not exist. The woman pointed to a check she gave to her friend. She also claimed that she had mailed a series of six additional post-dated checks, “representing her proportionate share of expenses for the building.” The friend asserted that the woman declined the opportunity to purchase the building, “preferring other investment options.” The friend said that the original check simply represented a loan, “similar to other advances the parties had made to one another over the years.” The friend also denied that the woman mailed the six post-dated checks.

The woman also asserted that she called the building’s original owner after seeing the advertisement. Although the woman said that the owner promised to take the building off the market, deposition testimony from the building owner was to the effect “that he never would have taken the property off the market based upon a mere telephone conversation.”

The lower court concluded that the woman “failed to establish the existence of a partnership by a preponderance of the credible evidence.” On appeal, the Appellate Division agreed with the lower court. It rejected the woman’s argument that the lower court refused to consider the envelope with the six post-dated checks as evidence. It believed that the lower court “did not fail to consider the checks; it simply did not accord them the significance that [the woman] attribute[d] to them.” The Court took note, however, that if the woman had not sent the original check for the purchase of the property, as was each court’s holding, then the amount she sent was to be a loan. As a result, the matter was remanded to the lower court to determine whether the loan had been repaid.

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