Bowers v. Wurzburg
In Bowers v. Wurzburg, 207 W. Va. 28, 528 S.E.2d 475, 484 (1999), the Court was confronted with the issue of whether a lessor of property could be held liable for the actions of a lessee under a joint-venture theory of liability, where the lessor had a contractual right to a percentage of the lessee's gross sales.
While the Court in Bowers recognized that "the mere existence of a 'percentage clause' does not automatically create a joint venture," W. Va. at , 528 S.E.2d at 485, the Court also observed that such a contractual right could nevertheless "be used to grant a landlord a substantial share in the tenant's business, suggesting a relationship beyond that of landlord and tenant," id.
Consequently, the Bowers Court went on to hold that summary judgment in favor of the lessor was inappropriate, since "a 'percentage clause' in a commercial lease, whereby the landlord receives a percentage of sales or profits in addition to or in lieu of the base rent, may be viewed as evidence that a joint venture exists." Id.