Lewis v. Lester

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.