Lewis v. Lester , 235 N.C. App. 84 ( 2014 )

NO. COA14-147
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
ROBERT F. LEWIS,
Plaintiff,
v. Guilford County
No. 12 CVS 11507
LEWIS LESTER,
Defendant.
Appeal by plaintiff from judgment entered on 6 August 2013
by Judge Richard L. Doughton in Guilford County Superior Court.
Heard in the Court of Appeals 19 May 2014.
OERTEL, KOONTS & OERTEL, PLLC, by Geoffrey K. Oertel for
plaintiff-appellant.
BENSON, BROWN & FAUCHER, PLLC, by James R. Faucher for
defendant-appellee.
STEELMAN, Judge.
Where the plaintiff failed to demonstrate that there was
consideration supporting an alleged oral agreement, the trial
court properly granted summary judgment for defendant. Where the
property in decedent’s estate included both real and personal
property, the statute of frauds required the alleged agreement
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to be in writing. This is a separate and independent basis for
affirming the ruling of the trial court.
I. Factual and Procedural Background
Robert F. Lewis (plaintiff) and Lewis T. Lester (defendant)
are the nephews of Floyd H. Lewis (Lewis). On 1 September 2006,
plaintiff and defendant were both designated as power of
attorney for Lewis. Plaintiff and defendant discovered Lewis’
will in January of 2007, learning that plaintiff was not
included as a beneficiary in the will. The will provided that
all of Lewis’ real and personal property was devised to
defendant and his sister. Lewis died in December 2011.
Defendant’s sister predeceased Lewis, resulting in the entire
estate passing to defendant.
In his complaint, plaintiff alleged that in September 2006,
the parties made an oral agreement regarding the property of
their uncle. Defendant allegedly agreed to split Lewis’ estate
equally with plaintiff in exchange for plaintiff acting as power
of attorney for Lewis. The complaint also states that the
parties were aware of the contents of Lewis’ will at the time of
this agreement.
However, in his deposition, plaintiff admitted that he did
not become aware of the contents of the will until January 2007,
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some four months after the alleged agreement took place.
Plaintiff further stated in his deposition that he would have
acted as his uncle’s power of attorney regardless of any
agreement he made with defendant.
The Power of Attorney allowed defendant and plaintiff to
each act independently as power of attorney for Lewis. Before
Lewis’ death, defendant used his authority as power of attorney
to change the beneficiary on several of Lewis’ bank accounts
from his deceased sister to plaintiff. As a result of those
actions, plaintiff received approximately $204,000 of Lewis’
property.
In April 2012, plaintiff learned of an additional bank
account in Lewis’ name at First Citizens Bank in the amount of
$84,000. Defendant refused to split the proceeds of the account
with plaintiff. Plaintiff commenced this action by filing a
complaint on 5 October 2012, seeking to enforce the alleged oral
agreement.
Plaintiff sought to recover one-half of the assets of
Lewis’ estate, which included real property. On 18 October 2012,
defendant filed an answer that contained a number of affirmative
defenses; including lack of consideration and statute of frauds.
On 17 July 2013, defendant filed a motion for summary judgment
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based upon the depositions of plaintiff, Brian Lewis, and
defendant.
On 7 August 2013, Judge Doughton filed an order granting
summary judgment in favor of defendant.
Plaintiff appeals.
II. Summary Judgment
In his sole argument on appeal, plaintiff contends that the
trial court erred in granting defendant’s motion for summary
judgment. We disagree.
A. Standard of Review
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649
S.E.2d 382, 385 (2007)).
B. Analysis
1. Lack of Consideration
The essential elements of a valid, enforceable contract are
offer, acceptance, and consideration. Copy Products, Inc. v.
Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983). When
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there is no genuine issue of material fact as to the lack of
consideration, summary judgment is appropriate. See Penn
Compression Moulding, Inc. v. Mar-Bal, Inc., 73 N.C. App. 291,
294, 326 S.E.2d 280, 283 (1985) (holding trial court should have
entered summary judgment for defendant where “undisputed”
evidence established that no new consideration was exchanged for
plaintiff's renewed promise to pay pre-existing debt). “A mere
promise, without more, lacks a consideration and is
unenforceable.” Stonestreet v. S. Oil Co., 226 N.C. 261, 263, 37
S.E.2d 676, 677 (1946).
In the instant case, plaintiff disavowed the theory set
forth in his complaint, that the consideration for the alleged
agreement was his agreement to serve as power of attorney, in
his deposition testimony. Plaintiff acknowledged that he was
unaware of the contents of the will at the time he claims the
agreement was made, and that he would have acted as power of
attorney, and continued providing help to his uncle, regardless
of any agreement with defendant, and that he expected no
compensation for acting as power of attorney.
Plaintiff now attempts to assert that, “any obligation held
by Robert F. Lewis to act to benefit Floyd H. Lewis ended with
the death of Floyd H. Lewis. Thus, any actions taken following
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the death of Floyd H. Lewis were taken at the detriment or loss
of Robert F. Lewis and are admissible evidence of the bargained
for legal detriment of the contract between the Defendant and
Plaintiff.” This argument is without merit because these actions
were not contemplated at the time the alleged agreement was made
and therefore cannot constitute consideration for that
agreement.
Past consideration or moral obligation is not adequate
consideration to support a contract. See Jones v. Winstead, 186
N.C. 536, 540, 120 S.E. 89, 90–91 (1923). Furthermore, “services
performed by one member of the family for another, within the
unity of the family, are presumed to have been rendered in
obedience to a moral obligation and without expectation of
compensation.” Allen v. Seay, 248 N.C. 321, 323, 103 S.E.2d 332,
333 (1958) (quoting Francis v. Francis, 223 N.C. 401, 402, 26
S.E.2d 907, 908 (1943)).
This presumption can be rebutted by evidence that the party
rendering the services reasonably expected compensation for
those services. Penley v. Penley, 314 N.C. 1, 18, 332 S.E.2d 51,
61 (1985). There is no such evidence in the instant case.
Plaintiff conceded that he would have acted as power of attorney
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and performed services for his uncle regardless of any agreement
with defendant, and expected no compensation.
This argument is without merit.
2. Statute of Frauds
The trial court’s order granting summary judgment does not
specify a basis for granting summary judgment. Plaintiff argued
against the application of the statute of frauds before the
trial court on summary judgment, but on appeal fails to make any
argument pertaining to the statute of frauds. Defendant asserted
the affirmative defense of statute of frauds in his answer. This
constitutes a separate and independent basis supporting the
trial court’s entry of summary judgment.
“It is settled law in North Carolina that an oral contract
to convey or to devise real property is void by reason of the
statute of frauds (G.S. § 22-2). An indivisible oral contract to
devise both real and personal property is also void.”
Pickelsimer v. Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557,
559 (1962) (citing Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760(1944)). Furthermore, “[u]pon a plea of the statute, it may not
be specifically enforced and no recovery of damages for the loss
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of the bargain can be predicated upon its breach.” Id. at 698,
127 S.E.2d at 560 (citing Daughtry v. Daughtry, 223 N.C. 528, 24
S.E.2d 446 (1943)).
The alleged agreement between plaintiff and defendant was
to divide the assets of Lewis’ estate, which included both real
and personal property. Therefore, the agreement is unenforceable
because it was not in writing.
We hold that the trial court did not err in granting
defendant’s motion for summary judgment.
AFFIRMED.
Chief Judge MARTIN and Judge DILLON concur.