Any inference to be made regarding the formation of a joint venture is
also belied by the overwhelming evidence that Kelleher and Waggoner
intended their arrangements to be governed by contract. It is undisputed
that on December 1, 1997, Waggoner signed the Ufinco JPA governing the
investment arrangement with Ufinco. By its terms, that agreement could
not be orally modified and made no reference to the creation of a Joint
Venture. Subsequent correspondence, as submitted to this Court,
demonstrates that in the months that followed, Waggoner and Kelleher (as
Ufinco trustee) understood the Ufinco JPA to govern the parties'
relationship with Bower Cotton and Nikea. (Caruso Reply Aff. Exs. K, L,
M). As for any deals with Mintus and Gert Von Wippel, it is undisputed
that the JPA signed on April 14, 1998, which also could not be orally
modified, covered transactions with the former and that the June 1998
Addendum covered transactions with the latter. Finally, as this Court has
already noted, the BTCB transaction was also covered by the April 14,
1998 JPA. See JVW I, 2000 WL 1174980, at *21.
In sum, the record clearly shows that no oral joint venture was created
between Kelleher and Waggoner and that, if it was, it was negated by
written contracts that precluded any oral alterations. There being no
joint venture and, hence, no related fiduciary duty, Waggoner is entitled
to summary judgment.
Further Discovery is Warranted
In his cross-motion, Kelleher argues that additional discovery is
required before granting summary judgment on the breach of contract and
breach of fiduciary duty claims. To this end, Kelleher has filed a
cross-motion (1) seeking to compel Waggoner to comply with discovery
notices that have been served upon him, (2) granting Letters Rogatory to
depose certain non-party witnesses who are in foreign countries, and (3)
permitting Kelleher to obtain documents from and/or depose various other
Kelleher does not identify with specificity the documents in Waggoner's
possession to which he desires access, but lists the following factual
categories: (a) the formation of the joint venture; (b) the various
investment programs that Kelleher found and proposed to him; (c) the
initial contacts with BTCB, the formation of JVW, the transfer of the
funds from Bower Cotton and the subsequent attempts to recover the funds
from SSBT; (d) meetings attended by Kenneth Caruso, Waggoner's counsel,
in the Bahamas in late October 1998 and the agreements that were made
there; (e) the creation of Wagonwheel Trust, the purported transfer of
JVW's stock to that entity, and what Wagonwheel did with JVW's assets;
and (f) the nature, extent and result of Waggoner's subsequent dealings
with BTCB, including but not limited to Overseas Projects Co. In
addition, Kelleher seeks Waggoner's foreign trust income tax schedules.
It is the understanding of this Court, as presented by Waggoner, that
all JVW documents pertaining to categories (b), (c), and (e) have been
produced. As for the existence of a joint venture, this Court has found
that no such venture exists. Thus, no further discovery is required on
this matter. Kelleher's remaining requests, regarding Caruso's meetings
in the Bahamas and Waggoner's tax schedules, are also denied.
Kelleher's remaining requests are granted, including: (a) the
deposition of Charles Brazie and George Betts, both former or present
officers of BTCB; (b) the deposition of Robert Garner and Robert
McKellar, the attorney and solicitor into whose accounts the funds that
were transferred from SSBT to BTCB were deposited;
and (c) the deposition of the Receiver of BTCB and/or the Receiver of
For the reasons set forth above, Waggoner's motion for summary judgment
is granted as to Kelleher's amended cross-claim alleging breach of
fiduciary duty. Waggoner's motion is denied as to Kelleher's cross-claim
alleging breach of the JPA, leaving this as Kelleher's only surviving
claim against Waggoner in this action. Kelleher's cross-motion to compel
further discovery and allow letters rogatory is granted as to the
depositions of Charles Brazie, George Betts, Robert Garner, and Robert
McKellar, and the Receiver of BTCB and/or the Receiver of SSBT.
Kelleher's discovery requests are denied in all other respects.
It is so ordered.