Michael Queen v. Ed Schultz , 747 F.3d 879 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2013 Decided April 4, 2014
No. 12-7099
MICHAEL QUEEN,
APPELLANT
v.
ED SCHULTZ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00871)
Steven W. Teppler argued the cause for appellant. With
him on the brief was Frazer Walton, Jr.
Jeffrey B. Landa, pro hac vice, argued the cause for
appellee. On the brief was John C. Hayes, Jr.
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
SRINIVASAN, Circuit Judge: In January 2008, NBC
employee Michael Queen approached then-radio talk show
host Ed Schultz to ask whether Schultz would be interested
in getting into the television business. What happened next
is in dispute. Queen says that he and Schultz verbally agreed
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to become partners in a project to develop a television show
starring Schultz as host. Schultz denies any such agreement.
Schultz later entered into a contract with the cable television
network MSNBC to host “The Ed Show” on weekday
evenings, and the show has aired on MSNBC in various
timeslots since April 2009. Queen now claims an entitlement
to a portion of Schultz’s income from “The Ed Show” based
on their alleged agreement to co-develop a show. Schultz,
disclaiming any agreement, believes that Queen is entitled to
nothing.
After the relationship between the two men broke down,
Queen sued Schultz in district court, and Schultz responded
with counterclaims against Queen for fraud, slander, and
libel. On cross-motions for summary judgment, the district
court ruled that neither Queen nor Schultz was liable to the
other for anything. Queen v. Schultz, 888 F. Supp. 2d 145,
175 (D.D.C. 2012). Queen (but not Schultz) appealed,
arguing that the district court erred in granting summary
judgment to Schultz with respect to Queen’s breach-of-
contract claim and his breach-of-partnership-duties theory.
We disagree with Queen on the breach-of-contract claim but
agree with him on the partnership theory. We conclude that
there exists a genuine issue of material fact as to whether
Queen and Schultz formed a partnership to develop a
television show and, if so, whether Schultz is liable to Queen
for breach of partnership duties. We therefore remand to
enable Queen to present his partnership theory to a jury.
I.
In an appeal from an order granting summary judgment,
our review is de novo, and we view the evidence in the light
most favorable to the nonmoving party—here, Queen.
United States v. Regenerative Scis., LLC, 741 F.3d 1314,
3
1318 (D.C. Cir. 2014). According to Queen’s version of
events, in 2007, Queen initially conceived the idea of a
television show starring Ed Schultz. At the time, Schultz
was a radio talk show host based in Fargo, North Dakota, and
had also made guest appearances on various television
networks. Before Queen and Schultz ever met or spoke,
Queen presented the concept for the show to the then-chief of
NBC News’ Washington bureau, Tim Russert, and began
developing a strategy to promote the idea.
In January 2008, Schultz visited NBC’s Washington
office building, and Queen and Schultz spoke for the first
time. While the parties now dispute what was said in their
initial conversation, we must credit Queen’s version at the
summary judgment stage. According to Queen, he asked
whether anyone was working with Schultz “to make a TV
show happen.” Schultz responded: “No. Now you’re it.”
Beginning in February 2008, Queen worked further on the
show idea “with Schultz’s specific and enthusiastic
approval.” Queen Decl. ¶ 5, ECF No. 24-3. Queen taped
Schultz’s guest appearances on various television shows in
order to create a demonstration reel, and he enlisted a former
NBC News director, Max Schindler, “to partner with Schultz
and [Queen] in the development of the project.” Id. ¶¶ 5-6.
Queen, Schindler, and Schultz then engaged in a series of
telephone conversations and e-mail exchanges in which they
discussed “ownership percentages” in “the agreed upon
partnership.” Queen says they “agreed that, in addition to
salaries, I would receive 25%, Schindler would receive 25%,
and Schultz would receive 50% of income realized by the
program after expenses, should it be sold.” Id. ¶ 8.
Queen introduced into the record a series of e-mail
communications with Schultz in which the two men sought
to hammer out the details of their financial arrangement.
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Schultz does not dispute the authenticity of those e-mails. In
one e-mail, on March 5, 2008, Schultz said to Queen: “I will
agree to a 50-25-25 percentage formula of profits after
expenses of the show. Each of us will have a salary for
working on the show although that needs to be figured out.”
In a reply five days later, Queen asked Schultz to “take a
look” at the “tentative agreement” that Queen had attached,
adding: “Will this work for you? The sooner we can all
agree the better.” The attachment, entitled “Partnership
Agreement,” provided Queen, Schindler, and Schultz with
equal interests in the partnership (one-third of profits and
losses). The draft agreement also indicated that Queen,
Schindler, and Schultz each would receive salaries from the
partnership, although the salary amounts remained blank.
As negotiations dragged on, Schindler decided to leave
the project. Schindler says in an affidavit that he thought
Schultz “would not honor any verbal agreements” because
Schultz refused to sign a written contract. Schindler Decl. ¶
3, ECF No. 24-1. Schindler also states that he “warned
[Queen] that . . . he should abandon this project with Schultz
or he would regret it.” Id. Queen disregarded Schindler’s
advice. Instead, Queen brought his “concerns of trust” to
Schultz, and on April 5, 2008, Schultz sent an e-mail to
Queen apparently intended to assuage those concerns.
Schultz wrote:
I understand your concern about a financial
arrangement moving forward. I can’t give you
specifics at this time. We do not know what we are
dealing with at this point and what kind of
opportunity may present itself. However, any TV
deal will obviously involve you. I will not do a TV
deal without your involvement and that includes a
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financial involvement. Rest assured, we are together
on this. I hope this works for you at this point.
Queen says he continued to pitch the idea of a television
show starring Schultz to executives at NBC and MSNBC, but
neither network decided to hire Schultz that spring. Queen
also continued to correspond with Schultz and Schultz’s
attorney, Jeffrey Landa, about the terms of a partnership
agreement. In an e-mail to Landa on May 29, 2008, Queen
set forth his latest set of requests: (i) Queen, Schultz, and
Landa would each own a one-third interest in the partnership;
(ii) Schultz “would have total control of content, hiring, [and]
production decisions”; (iii) Queen “would receive an amount
equal to 10% of [Schultz’s] television salary for the duration
of any TV production formed from this agreement”; and (iv)
Queen “would be included in any television enterprise.”
Landa responded that it was “out of the question” for Queen
to possess an ownership interest in the 30% to 40% range.
Landa also told Queen that Schultz “is not interested in
having your ‘salary’ based on his ‘salary’ and he is not
interested in having a salary allotted to you without ongoing
responsibilities (to be negotiated) on your part.”
Even as the parties argued over the terms of the business
arrangement, Queen arranged for the availability of an NBC
studio in Washington for the production of a pilot episode of
the show. The recording of the pilot episode took place on
June 26, 2008. Schultz told Queen that he and Landa would
pay for production of the pilot, but Queen says that he ended
up paying the $11,000 studio rental fee from the proceeds of
a personal home equity loan, and also bore other unspecified
pilot-related expenses.
According to Queen, he then sent a copy of the pilot to
Alan Horlick, the general manager of CBS’s Washington
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affiliate, WUSA. Queen says that he and Horlick eventually
struck a deal under which WUSA would broadcast a show
starring Schultz in the 7:30 a.m. to 8:00 a.m. timeslot on
Sunday mornings. The deal provided that Queen and Schultz
would pay a fixed fee to WUSA and would themselves own
the half-hour timeslot on Sunday mornings; if the show
proved successful after six months or a year, WUSA would
have an opportunity to negotiate an ownership interest in the
show. As plans for the WUSA show moved forward, Queen
contends that he located and rented an apartment for Schultz
and Schultz’s wife in Washington, D.C., helped furnish the
apartment, and provided Schultz and Schultz’s wife with car
rides. In March 2009, however, just weeks before Queen and
Schultz were to begin production on the WUSA show,
Schultz backed out of the project and accepted an offer from
MSNBC to host “The Ed Show.”
After the launch of “The Ed Show,” Queen says he
contacted Schultz, Schultz’s attorney, and the parent
company of MSNBC and asserted an entitlement to
compensation under his agreement with Schultz. Schultz
sent Queen a $12,000 check as reimbursement for the NBC
studio rental fee plus interest, although Queen contends that
Schultz has yet to reimburse him for other pilot-related
expenses. Schultz denies Queen’s entitlement to any further
payment.
In May 2011, Queen sued Schultz in the district court,
alleging breach of contract, fraud in the inducement, tortious
interference with business relationships, and intentional
infliction of emotional distress. Queen invoked the district
court’s diversity jurisdiction, as Queen is a resident of
Maryland, Schultz is a resident of Minnesota, and the amount
in controversy exceeds the $75,000 jurisdictional threshold.
See 28 U.S.C. § 1332(a). Schultz responded with
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counterclaims against Queen for fraud, slander per se, and
libel per se.
In August 2012, the district court granted summary
judgment to Schultz on Queen’s claims and to Queen on
Schultz’s counterclaims. Queen, 888 F. Supp. 2d at 175. Of
particular salience, the court considered (and rejected)
Queen’s breach-of-contract claim under two distinct
frameworks: first, the court examined the claim as an
ordinary breach-of-contract action independent of any
allegation that Queen and Schultz had formed a partnership,
see id. at 159-64; and second, the court considered the claim
“under a partnership theory,” see id. at 164-67.
II.
Queen confines his appeal to his breach-of-contract
claim and his breach-of-partnership-duties theory, arguing
that the district court should have allowed Queen to present
them to a jury. We reverse the grant of summary judgment
“‘if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Steele v. Schafer, 535
F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). We may affirm the
grant of summary judgment on any ground supported by the
record, even if it differs from the theory applied by the
district court, “provided that the opposing party has had a fair
opportunity to dispute the facts material to that ground.”
Washburn v. Lavoie, 437 F.3d 84, 89 (D.C. Cir. 2006); see
also Wash.-Balt. Newspaper Guild, Local 35 v. Wash. Post,
959 F.2d 288, 292 n.3 (D.C. Cir. 1992). Queen and Schultz
both accept the lower court’s conclusion that District of
Columbia law governs, and we follow the decisions of the
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District of Columbia Court of Appeals with respect to local
law. See Burke v. Air Serv Int’l, Inc., 685 F.3d 1102, 1105,
1107 n.4 (D.C. Cir. 2012). Applying District of Columbia
law, we conclude that Queen should be permitted to present
his breach-of-partnership-duties theory to a jury.
A.
We initially consider Queen’s ordinary breach-of-
contract claim—i.e., without regard to any partnership
theory. Under District of Columbia law, a valid and
enforceable contract requires “both (1) agreement as to all
material terms; and (2) intention of the parties to be bound.”
Duk Hea Oh v. Nat’l Capital Revitalization Corp., 7 A.3d
997, 1013 (D.C. 2010) (internal quotation marks omitted).
Queen, as the party asserting the existence of a contract,
bears the burden of proof on both issues. See Jack Baker,
Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C.
1995). And for purposes of surviving summary judgment,
Queen must demonstrate a genuine issue of material fact as
to both prongs. Because we conclude that Queen fails to
make the requisite showing with regard to an “agreement as
to all material terms,” we need not consider whether the
parties intended to be bound. See Malone v. Saxony Coop.
Apartments, Inc., 763 A.2d 725, 729-30 (D.C. 2000).
The “material terms” of a contract generally include
“subject matter, price, payment terms, quantity, quality, and
duration.” Rosenthal v. Nat’l Produce Co., 573 A.2d 365,
370 (D.C. 1990). A contract’s material terms must be
“‘sufficiently definite’ so that each party can be ‘reasonably
certain’ about what it is promising to do or how it is to
perform.” Dyer v. Bilaal, 983 A.2d 349, 356 (D.C. 2009)
(quoting Rosenthal, 573 A.2d at 370). While the terms of the
agreement “need not be fixed with complete and perfect
9
certainty for a contract to be enforceable,” the contract terms
“must be clear enough for the court to determine whether a
breach has occurred and to identify an appropriate remedy.”
EastBanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d
996, 1002 (D.C. 2008) (alterations and internal quotation
marks omitted).
The district court determined that Queen and Schultz
“never agreed with reasonable certainty on several material
terms of the alleged agreement, most notably the amount of
compensation that would be paid to the plaintiff.” Queen,
888 F. Supp. 2d at 160. Compensation constitutes a
“material term” of the contract, and Queen does not contend
otherwise. Instead, Queen argues that he, Schindler, and
Schultz agreed that he and Schindler would each receive 25%
of the show’s profits and Schultz would receive 50%. The
district court rejected that argument, concluding that “the
50/25/25 figure was never finalized as a term of any
agreement and was in fact superseded by other proposals and
counter-proposals regarding compensation structures.” Id. at
161.
As the district court observed, none of the e-mails in the
record demonstrate finalization of the 50/25/25 allocation.
But that alone would not necessarily defeat Queen’s breach-
of-contract claim because he argues that the parties verbally
agreed to a 50/25/25 split in March 2008. That Queen and
Schultz subsequently discussed other compensation
structures likewise would not necessarily disprove Queen’s
claim that the parties had initially reached agreement on a
50/25/25 split. If the parties had in fact agreed to a 50/25/25
formula, Queen’s later proposals for a one-third/one-
third/one-third split would not invalidate the already-existing
contract. See 1 Corbin on Contracts § 3.31 (Matthew Bender
& Co. 2013) (“exact and unconditional acceptance of an
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offer” not vitiated by “one party’s attempt to alter the terms
of the contract in some respect”).
Yet even when we credit Queen’s claim of a verbal
agreement to a 50/25/25 split, Queen still cannot carry his
burden to demonstrate that the parties agreed to all material
terms of the contract. Queen states in his affidavit that the
50/25/25 split of “income realized by the program after
expenses” was “in addition to salaries.” Queen Decl. ¶ 8.
Presumably, that means “salaries” would count as
“expenses” and would be subtracted from the amount to be
apportioned according to the 50/25/25 formula. Queen,
however, never suggests that the parties agreed upon salary
numbers, and he never explains how salaries were to be
calculated. That is no minor matter. If, for instance, we
were to look to the market value of Schultz’s services as a
proxy for the missing salary term, cf. Zeige Distrib. Co. v. All
Kitchens, Inc., 63 F.3d 609, 613 (7th Cir. 1995) (“missing
price term” may be “deducible from the market rate”), the
salary payable to Schultz under the contract would equal the
compensation he receives from MSNBC under his
employment contract. Subtraction of that salary expense
would in turn leave nothing for Queen, Schindler, and
Schultz to divide according to the 50/25/25 formula.
Perhaps Queen would say that Schultz’s “salary” under
the verbal agreement should be pegged to some metric other
than Schultz’s MSNBC compensation. But Queen makes no
such suggestion in his submissions. Rather, Queen states
only that he, Schindler, and Schultz agreed to a 50/25/25 split
of the show’s income after subtracting salaries and other
expenses, without any effort to identify the amount of
salaries and other expenses. Queen, in short, has told us that
the parties agreed to a 50/25/25 split, but has not told us what
they agreed to split. As a result, even viewing the evidence
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in the light most favorable to him, Queen fails to demonstrate
that the compensation terms of the alleged contract are “clear
enough for the court . . . to identify an appropriate remedy.”
EastBanc, 940 A.2d at 1002 (internal quotation marks
omitted). We thus affirm the district court’s conclusion that
Queen has failed to create a genuine issue of material fact
concerning the existence of a valid and enforceable contract
between himself and Schultz (at least apart from Queen’s
partnership theory, which we take up next).
B.
Queen argues that he, Schindler, and Schultz formed a
partnership under District of Columbia law, and that the
partnership continued to exist even after Schindler’s
departure. Cf. D.C. Code § 29-606.03(a) (one partner’s
dissociation does not necessarily result in dissolution of
partnership); Creel v. Lilly, 729 A.2d 385, 392-93 & nn.4-5
(Md. 1999) (noting that Revised Uniform Partnership Act,
unlike the earlier version of the Act, “allows for the
partnership to continue even with the departure of a
member,” and noting that District of Columbia is among
jurisdictions to have adopted the new rule). Queen further
argues that Schultz owed a duty of loyalty to the partnership
and to his fellow partner under District of Columbia law, and
that Schultz breached that duty by competing with the
partnership in the conduct of partnership business. Schultz
responds that he and Queen never formed a partnership. The
district court agreed, concluding that Queen had failed to
show a genuine issue of material fact with respect to the
formation of a partnership. Queen, 888 F. Supp. 2d at 167.
We pause at the outset to note that Queen’s complaint
contains no assertion of a breach of partnership duties, and in
fact nowhere uses the word “partnership.” Queen
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nonetheless argued at the summary judgment stage that he,
Schindler, and Schultz had “entered into an oral agreement to
establish a partnership,” that they “agreed that the partners
would share the profits from such a venture based upon a 50-
25-25 split,” and that he and Schultz “agreed to continue the
partnership” after Schindler’s departure. Pl.’s Opp. to Def.’s
Mot. for Summ. J. 2, ECF No. 24; Mem. in Supp. of Pl’s 2nd
Opp. to Def.’s 2nd Mot. for Summ. J. 2, ECF No. 32. Citing
Queen’s scattered references to a “partnership,” the district
court decided that it not only would consider Queen’s
breach-of-contract claim independent of any partnership
overlay, but would “also analyze the plaintiff’s breach-of-
contract claims under a partnership theory.” Queen, 888 F.
Supp. 2d at 164. Schultz now concedes in this court that the
district court correctly chose to assess Queen’s contract claim
under a partnership theory. Because Schultz has disclaimed
any waiver argument, we have no occasion to consider
whether a plaintiff who makes no mention of any partnership
in the complaint might thereby waive an argument premised
upon a breach of partnership duties.
A partnership arises under District of Columbia law
when “two or more persons . . . intend to associate together
to carry on as co-owners for profit.” Beckman v. Farmer,
579 A.2d 618, 627 (D.C. 1990); accord D.C. Code § 29-
601.02(9). The “customary attributes” of a partnership
include “profit and loss sharing,” “joint control of
decisionmaking,” and “capital contributions.” Beckman, 579
A.2d at 627 (internal quotation marks omitted). But those
“customary attributes” only form “guidepoints of inquiry.”
Id. “[W]hether a partnership exists is an issue of fact, turning
less on the presence or absence of legal essentials than on the
intent of the parties gathered from their agreement, conduct,
and the circumstances surrounding their transactions.” Id. at
628 (citation omitted). When a trial court “must resort to
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inferences from extrinsic evidence of the parties’ conduct
and course of dealings to determine their legal relationship,”
a “court’s conclusion that the issue of partnership vel non
could be resolved as a matter of law bears a heavy burden of
justification.” Id. at 630.
The District of Columbia Code establishes a “statutory
presumption of partnership from evidence that a party shared
in the profits of the business.” Id. at 627 (citing earlier
version of D.C. Code § 29-602.02(c)(3)). The statutory
presumption of partnership does not apply, however, if the
profits were received in payment for “services as an
independent contractor or of wages or other compensation to
an employee.” D.C. Code § 29-602.02(c)(3)(B). Schultz
claims that Queen was his employee, not his partner, and the
district court appears to have credited that claim. See Queen,
888 F. Supp. 2d at 165-66. But Queen maintains that he was
more than an employee or agent of Schultz: Queen says, in a
declaration, that he, Schindler, and Schultz orally agreed to
co-develop and co-own a television show. And the e-mail
correspondence in the record shows that, while Schultz’s
attorney at one point proposed that Queen and Schindler
enter into an “exclusive representation or agency agreement”
with Schultz to negotiate a television deal on Schultz’s
behalf, Queen declined to sign. Although a jury could
nonetheless find that Queen was Schultz’s employee or agent
rather than his partner, the court itself cannot make such a
determination on this record at the summary judgment stage.
Schultz also contends (and Queen does not dispute) that
he now works for MSNBC as an “independent contractor”
under an “employment contract” with the network. Schultz
Decl. ¶ 8-9, ECF No. 31-2. The district court therefore
concluded that Queen’s “claim to a percentage of [Schultz’s]
salary under a partnership theory fails as a matter of law.”
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Queen, 888 F. Supp. 2d at 166. But Schultz’s status as an
“independent contractor” or “employee” vis-à-vis MSNBC
has little bearing on the viability of Queen’s partnership
theory. Queen’s theory is that a partnership existed between
him and Schultz, not between Schultz and MSNBC, and that
MSNBC’s offer of employment to Schultz was an
opportunity that belonged to the Queen-Schultz partnership.
Under District of Columbia law, a partner’s duty of loyalty to
the partnership includes a duty “[t]o account to the
partnership and hold as trustee for it any property, profit, or
benefit derived by the partner . . . [from] the appropriation of
a partnership opportunity.” D.C. Code § 29-604.07(b)(1). If
one partner receives a salary or fee from a third party in the
course of the partnership business, he may be obligated to
account to his other partners for the salary or fee even though
he was an “independent contractor” with respect to the third
party. See, e.g., Beckman, 579 A.2d at 639 (attorney who
was member of now-dissolved law partnership entitled to
share of other partners’ fees for “work performed on
partnership business unfinished at the date of dissolution”);
cf. Quigley v. Rosenthal, 327 F.3d 1044, 1064 n.10 (10th Cir.
2003) (noting that attorneys generally are “independent
contractors” with respect to their clients); McCarthy v.
Recordex Serv., Inc., 80 F.3d 842, 853 (3d Cir. 1996) (same).
Thus, if Queen can show that he and Schultz became partners
in the development of a television show, Queen can
potentially prevail on the claim that he is entitled to a
percentage of Schultz’s compensation from MSNBC for
“The Ed Show,” regardless of whether Schultz was an
independent contractor/employee with respect to MSNBC.
As an alternative ground for granting summary judgment
to Schultz on Queen’s partnership claim, the district court
determined that Queen had “failed to create a genuine issue
of fact regarding whether the parties intended to form a
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partnership.” Queen, 888 F. Supp. 2d at 166. We believe,
however, that a reasonable jury could conclude from the
parties’ conduct and communications that Queen and Schultz
intended to, and did, form a partnership to develop a
television show. Of course, it remains to be seen whether a
jury in fact will find the existence of a partnership. The
question for our purposes is whether Queen made a sufficient
showing to present the matter to a jury, and we conclude that
he did.
First, Queen says he developed the concept for the show,
marketed the show to NBC and MSNBC executives,
arranged for the production of the pilot, and negotiated with
CBS’s Washington affiliate for a Sunday morning timeslot.
A reasonable jury that credited Queen’s testimony on those
points could conclude that Queen shared in control of
decisionmaking. See Beckman, 579 A.2d at 627 (“joint
control of decisionmaking” is “customary” attribute of
partnership); accord Brown v. 1401 N.Y. Ave., Inc., 25 A.3d
912, 914 (D.C. 2011). Although Queen’s e-mail to Landa on
May 29, 2008 stated that Schultz would have “total control”
of content, hiring, and production decisions, a reasonable
jury could accept Queen’s argument that he nonetheless
retained control over other aspects of the partnership
business (e.g., finances, logistics, and marketing).
Second, Queen contends that he advanced $11,000 to
rent an NBC studio for the pilot, paid other pilot expenses,
and devoted considerable time and energy to the partnership.
All of those outlays potentially qualify as capital
contributions to the partnership. See Black’s Law Dictionary
237 (9th ed. 2009) (“capital contribution” defined as “[c]ash,
property, or services contributed by partners to a
partnership”). “[C]apital contributions” are among the
“attributes of co-ownership” to which District of Columbia
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law looks in determining whether parties have formed a
partnership. Beckman, 579 A.2d at 627.
Third, Queen’s claim that he, Schindler, and Schultz
agreed to form a partnership to develop a television show
draws support from Schindler’s sworn statement that he
“agreed to partner in the project” with Queen and Schultz.
Schindler Decl. ¶ 2. While Schultz dismisses Queen’s
version of events as “self-serving,” that line of attack does
not apply to Schindler, a non-party who seeks nothing from
Schultz in this litigation.
Fourth, although there is no evidence that Queen and
Schultz actually shared profits from the show, Schultz’s
April 5, 2008 e-mail to Queen assured Queen that he would
have “a financial involvement” in any “TV deal.” A
reasonable jury could interpret that assurance as an indication
that Schultz and Queen intended to associate as co-owners
for profit. Of course, a jury might also draw a different
inference, but “summary judgment is not available” when
material facts are “susceptible to divergent inferences.”
Carney v. Am. Univ., 151 F.3d 1090, 1093 (D.C. Cir. 1998)
(internal quotation marks omitted).
Finally, Queen’s failure to demonstrate an enforceable
agreement with regard to compensation—while fatal to his
ordinary breach-of-contract claim—does not defeat his
argument that he and Schultz formed a partnership under
District of Columbia law. In the context of a partnership
agreement, the default provisions in the District of Columbia
Code can supply certain essential terms to which the parties
never explicitly agreed. See D.C. Code § 29-601.04(a) (“To
the extent the partnership agreement does not otherwise
provide, this chapter shall govern relations among the
partners and between the partners and the partnership.”).
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And the default rule under District of Columbia law holds
that, absent an explicit agreement otherwise, “[e]ach partner
shall be entitled to an equal share of the partnership profits.”
D.C. Code § 29-604.01(b); see also Robinson v. Nussbaum,
11 F. Supp. 2d 10, 15 (D.D.C. 1997).
It might seem counterintuitive that Queen, having failed
to demonstrate the existence of an enforceable agreement
entitling him to 25% of the income after expenses from “The
Ed Show,” can nonetheless pursue a partnership theory that
could entitle him to a 50/50 split of profits with Schultz. But
the “equal share” allocation under District of Columbia
partnership law applies only as a default matter in the
absence of an explicit agreement between the parties.
Accordingly, as the District of Columbia Court of Appeals
has explained in a comparable context, insofar as the default
provisions of District of Columbia partnership law might
lead to “harsh results,” the parties could always enter into a
partnership agreement that would supersede the default rules.
See Beckman, 579 A.2d at 640.
In any event, any consideration of the amount of
damages payable to Queen would be premature in advance of
a jury verdict on whether the parties formed a partnership in
the first place. And even if Queen were to persuade a jury
that he and Schultz formed a partnership, Queen still would
need to prove that Schultz breached his duty of loyalty under
District of Columbia partnership law. A partner’s duty of
loyalty includes a duty to “refrain from competing with the
partnership in the conduct of the partnership business before
the dissolution of the partnership.” D.C. Code § 29-
604.07(b)(3). Queen submits that Schultz breached the duty
of loyalty when he accepted an offer to host a weekday show
on MSNBC, while Schultz says he worked with Queen solely
to produce a Sunday morning television show. Each party
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cites portions of the record that support his position, but
neither party puts forward incontrovertible evidence that
proves him right. Resolution of that issue therefore will
require “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts,” all of which are “jury functions” and “not those of a
judge at summary judgment.” Barnett v. PA Consulting
Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (internal
quotation marks omitted).
* * * * *
We conclude that the district court correctly granted
summary judgment to Schultz on Queen’s claim that he,
Schindler, and Schultz entered into an enforceable contract to
divide the profits from a potential television show 50/25/25.
But insofar as Queen claims that he and Schultz formed a
partnership to develop a television show and that Schultz
breached his duty of loyalty under District of Columbia
partnership law, Queen is entitled to present his claim to a
jury. We therefore affirm the judgment of the district court
in part, reverse it in part, and remand for further proceedings
consistent with this opinion.