Potter v. Homestead Preservation Ass'n

PHILLIPS, Judge. In orally arguing this appeal the individual defendants contended for the first time that the verdict on Issues 4 and 5 cannot stand because any services plaintiff performed in regard to the 700-acre tract were necessarily for the benefit of the owner, The Homestead Preservation Association, which is no longer in the case. This issue was not raised by exception at trial, nor is it the subject of an assignment of error. Rule 10(b), N.C. Rules of Appellate Procedure. The closest that defendants came to raising the question was when Issue 4, as to whether plaintiff rendered “valuable services to the defendants, William Bretan and Herman Bretan relative to the 700-acre tract of land,” was objected to during the charge conference; but in doing so counsel stated, “Our objection specifically is putting them together.” This meant, of course, only that defendants wanted a separate issue for each defendant; it did not mean, as now argued, that their position was that no services of benefit to them were indicated by the evidence. Having tried the case on that basis, the appeal must follow the same course. Walker v. Walker, 238 N.C. 299, 77 S.E.2d 715 (1953). But the contention is baseless in any event. For plaintiff alleged that she agreed to manage the tracts in return for one-fourth interest in the tracts and the profits derived from their sale — an allegation essentially admitted by defendants who asserted in their counterclaim that “[p]laintiff agreed with the Defendants to oversee and manage the [two tracts] . . . for which she was to receive twenty-five percent (25%) of the profits” from their sale; and she specifically asserted that defendants dominated the corporation, operated it as their personal business, controlled and misappropriated its assets, failed to have meetings and account for its property, and that her services were for their benefit. These allegations that the Association in effect was but the tool or alter ego of the defendants were supported by evidence that though plaintiff had been named its president, defendants handled the corporation’s business, refused to account for its funds, spent them without consulting her, and summarily removed her from both office and the Association when she undertook to call a meeting and request an accounting. The Association’s servient status as understood by the parties and the court is further indicated by the fact that in getting the personal judgment against them stayed pending the appeal the defendants were permitted to give bond “with the 700-acre tract of land owned by the Defendant Homestead Preservation [460] Association.” And, of course, the evidence that the parties were partners or joint venturers in buying and developing the tract and that the defendants now treat it as their own is also evidence that plaintiffs services in regard to the property benefited them. Defendants’ arguments made in their brief can be consolidated into three contentions — that an issue as to the three-year statute of limitations barring the claim should have been submitted; and that the evidence does not support either of the damages awards approved by the court. Neither contention has merit and each can be effectively answered by merely stating the evidence bearing thereon. First, as to the three-year statute of limitations contention, the evidence shows without contradiction that it was not until 27 August 1984 that plaintiff was notified by Herman Bretan that her association with the defendants had been terminated, and this suit was filed on 26 August 1987. The argument that her cause of action accrued on 31 December 1983 when she did not accept William Bretan’s undocumented “accounting” of the sale proceeds from the 400-acre tract has no basis. For the evidence is without contradiction that after that meeting, except for plaintiff’s effort to obtain Herman Bretan’s explanation of William Bretan’s accounting of the 400-acre sale proceeds and to call a meeting and obtain an accounting in regard to the 700-acre tract, the relationship of the parties and plaintiff’s services continued as before and that she was in Yancey County looking after the property and receiving complaints from Association members when Herman Bretan’s letter was received. Nothing in the evidence indicates that before then she had reason to know that the unexplained matters involving the 400-acre tract would not be satisfactorily explained and adjusted if appropriate, or that the agreement as to the other tract would not be complied with or that their relationship had been or would be terminated. The only support for defendants’ argument is that William Bretan’s purported accounting and Herman Bretan’s failure to contact her caused her to suspect that defendants were not going to abide by the agreement; but legal actions accrue upon fact, not suspicion. Second, as to the contention concerning the $12,500 verdict for lost profits from the sale of the 400-acre tract, the evidence not only supports that award, it would support one much higher. For William Bretan’s report that the property was sold for [461] $260,000 and the expenses and obligations amounted to $230,000 is evidence that a profit of at least $30,000 remained for division if all of the deductions claimed were authorized; and the agreement testified to is evidence that neither the $25,000 finders fee retained by William Bretan nor the $68,000 “repayment” to Herman Bretan were authorized since under it William Bretan’s duty was to make sales, and Wind was required to supply all the money needed for the venture, and testified that he did so. The main thrust of defendants’ final argument — that the evidence does not tend to show that the services plaintiff rendered in regard to the 700-acre tract are worth $110,000 —is that neither plaintiff nor anyone else put a dollar value on the services and that she could not estimate the number of days or hours that she worked. The evidence, though, is not that she performed random errands or services on an hourly or daily basis. The evidence is that the agreement of the parties required her to manage, supervise, look after, improve and promote the tract and the Association for six or seven months each year for thirteen years, that she was there on the property “seven days a week for . . . many, many times,” and was “always available” to do whatever was required of her in looking after and improving the property and in dealing with Association members, prospects and others. Thus, her services and responsibilities were limited only by the calender and should be paid for on that basis. The law does not require courts or jurors to be oblivious to what is commonly known by others, and it is a matter of common knowledge that the nation has a minimum wage law; that virtually no one, including the unskilled, works for less than that; that any kind of regular service performed over a long period of time has substantial value; and that reliable managerial, caretaking and promotional services requiring constancy, initiative, judgment, and the ability to deal with and direct others is several times more valuable still. The $110,000 award that the court reduced the verdict to is well supported by the evidence and these matters of common knowledge; for it is less than $8,500 for each of the thirteen six or seven month periods that, according to the evidence, this experienced real estate manager spent looking after, improving and promoting a large and valuable tract of land, and it is little if any more than the cost of an unskilled custodian’s or night watchman’s services for a like period. Whether the evidence also supports the jury’s evaluation of the services, as plaintiff argues, is not before us and will not [462] be determined since her appeal from the reduction of the award was not perfected. Thus, in the trial as conducted no error prejudicial to the defendants has been made to appear. And we note that if the issue as to the 700-acre tract had been tried on the joint venture contract theory as the court might have directed, instead of quantum meruit, that the result could have been less satisfactory to the defendants still. For though quantum meruit is appropriate where one has benefited from another’s services under circumstances that in good conscience call for payment, Thormer v. Lexington Mail Order Co., 241 N.C. 249, 252, 85 S.E.2d 140, 143 (1954), citing Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777 (1916), the relief is limited to the value of services rendered and it is usually resorted to because the parties had no enforceable contract. In this case an apparently enforceable contract was pleaded and testified to and if the trial had been on that basis the value of plaintiffs services would have been immaterial, the property might have been subjected to a trust for the benefit of the contracting parties, and its value could have been a major issue. Fortune v. First Union National Bank, 323 N.C. 146, 371 S.E.2d 483 (1988); Newby v. Atlantic Coast Realty Co., 182 N.C. 34, 108 S.E. 323 (1921). Why the trial was not on that basis does not appear and is not our concern since neither party assigned it as error. No error. Judge BECTON concurs. Judge GREENE concurs in part and dissents in part. (Former Judge BECTON concurred in the result reached in this case prior to 9 February 1990.)