Opinion
No. COA12–943.
2013-08-6
Robert B. TAFT, Jr. and RTB, Inc., Plaintiffs, v. J. Scott DICKMAN; Pinnacle Packaging Company, Inc.; Oracle Packaging Company of North Carolina, Inc.; and Oracle Flexible Packaging, Inc., Defendants.
Northup McConnell & Sizemore, PLLC, by Brady J. Fulton, for plaintiffs-appellants. Smith Moore Leatherwood LLP, by Richard A. Coughlin and L. Cooper Harrell, for defendants-appellees.
Appeal by plaintiffs from orders entered 9 January 2012 by Judge Gary M. Gavenus in Polk County Superior Court. Heard in the Court of Appeals 9 January 2013. Northup McConnell & Sizemore, PLLC, by Brady J. Fulton, for plaintiffs-appellants. Smith Moore Leatherwood LLP, by Richard A. Coughlin and L. Cooper Harrell, for defendants-appellees.
GEER, Judge.
Plaintiffs Robert B. Taft, Jr. and RTB, Inc. appeal from the order denying their motion for a continuance of a summary judgment hearing and from the order granting defendants J. Scott Dickman, Pinnacle Packaging Company, Inc., Oracle Packaging Company of North Carolina, Inc., and Oracle Flexible Packaging, Inc.'s motion for summary judgment. Plaintiffs primarily contend on appeal that the trial court erred in granting defendants' motion for summary judgment because the court relied on a contract purportedly set out in emails when Mr. Taft's deposition provided evidence that he accepted an offer made over the phone with different terms. At the trial level, however, plaintiffs never relied upon that oral contract theory, but rather pursued a claim that defendants breached the email contract. It is well established that a party may not, in arguing that summary judgment was improper, rely upon new theories not made in the trial court. Since we find plaintiffs' other arguments also unpersuasive, we affirm.
Facts
Mr. Taft, who works as a salesman in the packaging industry, is also the sole shareholder of RTB, Inc., which provided sales services to various suppliers of ink for packaging services. Both Mr. Taft and RTB provide sales services for Siegwerk, a company that manufactures ink for packaging.
In 2003, Mr. Taft was serving as the Siegwerk representative for both R.J. Reynolds Packaging Company (“RJRP”) and defendant Oracle Packaging Company of North Carolina. During discussions with Jim Hummer, the plant manager of Oracle Flexible Packaging Company (a sister company of Oracle Packaging), Mr. Taft mentioned that RJRP was up for sale. Mr. Hummer indicated that defendant J. Scott Dickman, the CEO of Pinnacle Packaging Company, which was the sole shareholder of both Oracle Flexible Packaging Company and Oracle Flexible Packaging, Inc., was looking for a company to acquire. Mr. Hummer suggested that Mr. Taft speak with Mr. Dickman about the possibility of Pinnacle acquiring RJRP.
Mr. Taft spoke with Mr. Dickman in early 2003 and Mr. Dickman expressed interest in purchasing RJRP. Mr. Dickman was concerned, however, that since prospective buyers had to be invited to participate in the bidding process for RJRP, Pinnacle would not be able to get on the list to make an offer for the company. Mr. Taft agreed to help Pinnacle obtain an invitation to bid.
After that conversation, Mr. Taft introduced Mr. Dickman to Ric Engels, the President of RJRP, and Pinnacle was subsequently invited to be on the list of authorized bidders for the company. As the bidding process progressed, Mr. Taft and Mr. Dickman entered into discussions regarding how Mr. Taft would be compensated for his services.
Mr. Dickman first emailed Mr. Taft on 2 June 2003, confirming that Pinnacle was very interested in acquiring RJRP. Mr. Dickman also acknowledged the value of Mr. Taft's services in connection with the possible transaction and proposed that in exchange for Mr. Taft's good faith and exclusive assistance to Pinnacle with regard to the transaction, Pinnacle would pay Mr. Taft a consulting fee equal to .005% of the total Purchase Price. That fee was to “not be less than $200,000.00 nor more than $350,000.00.” The proposal also specified that the fee was to be “deemed to be earned upon the Closing of a purchase of RJR Packaging by Pinnacle or a related party[,]” but “no consulting fee [would] be earned by [Mr. Taft] or paid until and unless a transaction for Pinnacle, Oracle or related party to purchase RJR Packaging from RJR Tobacco [was] completed.” Additionally, the proposed agreement provided that “[u]pon Closing of a purchase transaction of the RJR Packaging operations, [Pinnacle] [would] work with [Mr. Taft] on a good faith basis to negotiate a long term (3–5 years) supply agreement [for ink] with the understanding that it [would] have safeguards to [e]nsure the pricing [was] competitive.”
The next day, Mr. Taft responded by email rejecting the proposed consulting fee of .005 % of the purchase price. He indicated, however, that he would be “willing to adjust, downward, [his] request [that he be paid 2% of the purchase price], assuming that [Mr. Dickman] [would be] willing to meet at a mutually agreed level.”
Mr. Dickman responded by email on 4 June 2003, asserting that he was “in a position of having to justify the amount paid.” He again acknowledged the value of Mr. Taft's services, but wrote that he could “not guarantee” that Pinnacle would be able to amend its offer. Mr. Dickman did commit to reopening the discussion regarding Mr. Taft's compensation after an upcoming series of meetings with RJRP regarding the potential transaction.
Mr. Dickman next emailed Mr. Taft on 19 June 2003 confirming that after his meetings in Winston–Salem with the management team of RJRP, he had been favorably impressed and Pinnacle would pursue acquisition of RJRP. He indicated that he had spoken with his senior management team regarding the issue of Mr. Taft's compensation, and they had expressed concern that Mr. Dickman's initial offer to Mr. Taft was too generous. Mr. Dickman, however, assured Mr. Taft that he would stand by his initial offer of .005% of the purchase price if Pinnacle successfully acquired all of RJRP's assets:
Even though this may exceed our Senior Management team's estimate, I will stand by the offer of .005% of the total amount of the Purchase Price, excluding the reimbursement for Working Capital, Inventory, Accounts Receivable and Accounts Payable. Based on our last offer to RJR, this would equate to a fee between $200,000 and $350,000. As you know this arrangement is totally conditioned upon Pinnacle or a related company actually closing the transaction and purchasing all of the assets of RJRP. In the event no transaction is closed, you will not be entitled to or paid any fee.
(Emphasis added.)
Two hours later, Mr. Taft responded agreeing to a deal with Mr. Dickman:
I do not want to be a problem, within this possible transaction. Jim Hummer called me the other day and made his position clear. I want you to always think positively of me and my involvement toward a successful business arrangement. As I have mentioned, there are various ways that I might be of service and I would like you and your group to consider me a team player. I will accept your offer and trust that going forward I can continue to be an asset to your group. I would hope that this can be a long lasting relationship and look forward to assisting Oracle in its printing ink requirements. As mentioned, I would like to have RTB, inc. [sic] as the company in which [sic] any monies go through. I am going to trust you and hope that you will do the same by me. Let's get it done.
(Emphasis added.)
Although Pinnacle contends that this email was accepting Mr. Dickman's offer set out in the 2 June and 19 June 2003 emails, Mr. Taft testified in his deposition that during the two hours between Mr. Dickman's email and Mr. Taft's response, the two men had a telephone conversation in which Mr. Dickman agreed to pay Mr. Taft $250,000.00 and further agreed that Pinnacle would purchase 2% of its ink requirements from Siegwerk for a period of three to five years. Mr. Taft claimed that his 19 June 2003 email was accepting the offer made over the telephone and not the offer made by email. According to Mr. Taft, the telephone offer did not condition payment of the consulting fee on Pinnacle's purchase of “all of the assets” of RJRP.
During the course of the negotiations between R.J. Reynolds (“RJR”) and Pinnacle, RJR decided that it would divide up RJRP for purposes of sale, with Pinnacle buying only RJRP's external business of supplying packaging to companies other than RJR. RJR decided to sell RJRP's internal business, which serviced RJR's own packaging needs, to four separate companies other than Pinnacle. Pinnacle closed on its purchase of RJRP on 1 May 2005.
After the transaction closed, Mr. Dickman and Mr. Taft had a conversation in which Mr. Dickman indicated to Mr. Taft that Mr. Taft was not due the full amount of his compensation because Pinnacle had not purchased all of RJRP's assets. Mr. Dickman, however, offered to pay Mr. Taft some amount for his services. Mr. Taft testified that the two men agreed that Mr. Taft would be paid $110,000.00 and that Pinnacle would enter into a requirements contract with Siegwerk, through RTB, for 2% of all inks purchased by Pinnacle:
So I continued to negotiate down from the [$]250,000 and landed on $110,000 assuming, which he assured me, I would have all the ink requirements. I mentioned to him at that point in time, I've got to have the ink requirements and if you don't buy the ink from me, I need to be compensated. And he told me 2 percent of all inks bought would be a fair arrangement. That's why I agreed to the [$]110,000.
Mr. Dickman, in his affidavit, acknowledged that during the 2005 conversation, he agreed to pay Mr. Taft through RTB $110,000.00. He testified, however, that he only agreed to treat Siegwerk as a “preferred supplier-meaning that Siegwerk inks would be used as long as they were price competitive and qualified.” It is undisputed that after this 2005 conversation, the amount of ink purchased from Siegwerk by Pinnacle decreased.
Plaintiffs filed suit against defendants on 12 January 2011, including claims for tortious interference with contract with respect to Mr. Taft's employment relationship with Siegwerk, unfair and deceptive trade practices, quantum meruit, and unjust enrichment. Although the complaint did not include any claim for relief expressly labeled “breach of contract,” the parties agree that the complaint did in fact assert a claim for breach of contract.
On 29 November 2011, defendants filed a motion for summary judgment as to all claims, asserting that summary judgment was proper in that (1) Pinnacle did not breach the terms of the 2003 contract set out in the emails because Pinnacle was not able to purchase all of RJRP's assets; and (2) any promises made in 2005 by Mr. Dickman to Mr. Taft were gratuitous and without consideration.
On 9 December 2011, Mr. Taft filed an unverified motion for a continuance of the summary judgment hearing calendared for 13 December 2011. The motion did not attach any affidavits or other documentation to support the request for a continuance.
At the 13 December 2011 hearing, Mr. Taft's counsel handed up an unsworn letter from Mr. Taft's physician. The trial court orally denied the motion for a continuance and heard argument on the motion for summary judgment. The trial court entered orders on 9 January 2012 denying the motion for a continuance and granting summary judgment to defendants on all claims. Plaintiffs timely appealed to this Court.
I
Plaintiffs first contend that the trial court erred in denying their motion to continue the summary judgment hearing. Plaintiffs' unverified motion, filed 9 December 2011, asserted that Mr. Taft had “recently been hospitalized in intensive care at Spartanburg Regional Medical Center, Spartanburg, SC, suffering from a debilitating medical condition/disorder which manifested itself approximately two weeks ago.” According to the motion, “[p]laintiffs' counsel are attempting to obtain information from Mr. Taft's medical providers, but have been unable to speak with Mr. Taft or his wife prior to the filing of this motion.” The motion further stated: “Plaintiffs' counsel are unaware of Mr. Taft's prognosis, although they have been informed that it is very grave.” The motion then recited that “[p]laintiffs' counsel have been unable to meet or speak with Mr. Taft to assist them regarding Defendants' Motion for Summary Judgment or about his case during the past two weeks and have been unable to obtain from him responsive affidavit(s) to Defendants' motion.” The motion represented further that “[p]laintiffs' counsel have been unable to communicate with Mr. Taft to receive any direction from him concerning a response to Defendants' motion or the continuation of settlement discussions between counsel for the parties.” Plaintiffs attached no affidavits or other supporting documentation to the motion.
At the 13 December 2011 hearing, Mr. Taft appeared with his local counsel, told the trial court that he had been sick, and presented an unsworn letter from his doctor dated 12 December 2011. That letter stated: “Bob Taft was seen by me on Thursday, December 8th, 2011, with a medical condition requiring immediate hospitalization. He had been sick several days prior with severe pains. He went in the hospital Dec. 8th and was released on the 9th. If further information is needed, I will be happy to provide more detailed descriptions of his illness with proper medical release forms.”
Mr. Taft then spoke directly to the trial court regarding plaintiffs' motion for a continuance:
MR. TAFT: Robert Burton Taft, Jr. I would like to start out by apologizing to Mr. Feagan[, local counsel,] for the situation that he's in as representing the attorney that I had leading this from West Virginia. Over the last couple of weeks we've had some significant differences of opinion, and he expressed to me his desire to withdraw that—I didn't accept that position.
And then last week, week before last, I traveled to Ohio. And on the return, weekend before last, I became ill. And last Monday I was restricted to my bed for several days and ultimately went to the local doctor, Dr. Todd Walter, in Landrum, South Carolina. And he immediately had me admitted to the hospital down in Spartanburg, which I was diagnosed with paralytal (phonetic) ileus, please forgive me, but it's a blockage in the lower bowel. Very, very painful. And I was told to—after I was dismissed I was told to go back and just liquid diet until—until literally, today. And then I'm to see him tomorrow.
So I would ask Your Honor, Your Honor, that because of my situation with my lead counsel and my medical condition that you would allow me some more time to address my issues.
After orally denying the motion for a continuance, the trial court entered a written order on 9 January 2012, denying the motion for the following reasons:
1. This matter is for trial on January 30, 201[2] civil session of the General Court of Justice, Superior Court Division, Polk County, North Carolina with a Preemptory Setting;
2. Defendants' Motion was timely filed on November 29, 2011 and timely noticed for hearing, and Plaintiffs have made no[ ] showing or suggestion to the contrary;
3. Plaintiffs' request to continue the hearing was not accompanied by an affidavit that satisfied the requirements of Rule 56(f); and
4. Having heard from Plaintiffs' counsel and directly from Plaintiff Taft with regard to the requested continuance, the Court concludes that there is no justification to continue the hearing on the motion for the current session and in its discretion it denies such motion.
Rule 56(f) of the Rules of Civil Procedure, on which the trial court relied, addresses the situation when a party needs a continuance of a hearing on a motion for summary judgment:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
This Court has repeatedly held that when, as here, a party moves for a continuance of a summary judgment hearing, but fails to file an affidavit pursuant to Rule 56(f), the trial court does not abuse its discretion in denying the party's motion to continue. See, e.g., Draughon v. Harnett Cnty. Bd. of Educ., 158 N.C.App. 208, 214, 580 S.E.2d 732, 736 (2003) (“A trial court does not abuse its discretion when it denies motions to continue a hearing on a motion for summary judgment if a party fails to file and give notice of a motion to continue and submit an affidavit pursuant to Rule 56(f).”), aff'd per curiam,358 N.C. 131, 591 S.E.2d 521 (2004); Fla. Nat'l Bank v. Satterfield, 90 N.C.App. 105, 110, 367 S.E.2d 358, 361 (1988) (“Further, there is no affidavit from defendant, as Rule 56(f) requires, setting out the facts or reasons why he could not justify his opposition to the motion for summary judgment.”); City of Thomasville v. Lease–Martin Afex, Inc., 38 N.C.App. 737, 739, 248 S.E.2d 766, 767–68 (1978) (“Moreover, it should be noted that plaintiff did not seek to invoke Rule 56(f) by showing by affidavit reasons why he could not at that time present facts essential to justify his opposition to the motion for summary judgment.”).
In this case, plaintiffs' motion for a continuance was not verified and attached no affidavits. Instead, the motion indicated that plaintiffs' counsel needed “more information from [Mr. Taft's] family in order to accurately report to the Court on his condition.”
While plaintiffs could have submitted Rule 56(f) affidavits at the hearing to support the motion for a continuance, they did not do so. Instead, counsel provided the court with an unsworn letter from Mr. Taft's family physician. That letter and the explanation that Mr. Taft himself provided to the trial court were inconsistent with the motion. The motion had implied that because of Mr. Taft's medical condition, counsel had been unable to obtain affidavits from or communicate with Mr. Taft during the time period following the filing of the motion for summary judgment. The letter and Mr. Taft's statements to the court, however, indicated that he was hospitalized for only a day and was only ill for some unspecified days before. Mr. Taft also indicated that, during the relevant time frame, he had been communicating with his lead attorney, had differences of opinion, and the attorney wished to withdraw. In short, the grounds for a continuance asserted in the motion—Mr. Taft's illness precluding the attorneys from preparing a response to the summary judgment motion-were not fully supported by the doctor's unsworn letter and Mr. Taft's representations.
Plaintiffs, however, point to Abernethy v. State Planters Bank & Trust Co., 202 N.C. 46, 161 S.E. 705 (1932), and Freeman v. Monroe, 92 N.C.App. 99, 373 S.E.2d 443 (1988), as establishing that the trial court abused its discretion in denying the continuance. However, in Abernethy, 202 N.C. at 47, 161 S.E. at 705–06, the party seeking a continuance filed affidavits from two highly-respected doctors supporting the need for a continuance, while in Freeman, 92 N.C.App. at 100, 373 S.E.2d at 444, the motion was verified.
In this case, we cannot conclude that the trial court abused its discretion in denying the motion to continue the summary judgment hearing when plaintiffs provided no affidavits supporting the motion and the explanation provided at the hearing was inconsistent with the representations in the motion. We, therefore, affirm the order denying the motion to continue the summary judgment hearing.
II
Plaintiffs next contend that the trial court erred in granting defendants' motions for summary judgment on their claims for (1) breach of contract and (2) unjust enrichment and quantum meruit. “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, 524, 649 S.E.2d 382, 385 (2007)).
Plaintiffs do not challenge the entry of summary judgment on their claims for tortious interference and unfair and deceptive trade practices. In addition, plaintiffs do not distinguish among the defendants in arguing that they presented sufficient evidence to defeat summary judgment. Since defendants likewise do not address whether a different analysis applies to different defendants, we also deal with defendants collectively.
“ ‘The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of [the] contract.’ “ Woolard v. Davenport, 166 N.C.App. 129, 134, 601 S.E.2d 319, 322 (2004) (quoting Poor v. Hill, 138 N.C.App. 19, 26, 530 S.E.2d 838, 843 (2000)). For a contract to be valid, one must be able to prove that there was an offer, acceptance of that offer, and consideration. Cap Care Grp., Inc. v. McDonald, 149 N.C.App. 817, 822, 561 S.E.2d 578, 582 (2002).
On appeal, plaintiffs contend that defendants breached two contracts: (1) the consulting fee agreement entered into in 2003; and (2) the requirements contract negotiated orally and entered into in 2005. We hold that plaintiffs have failed to show that the trial court erred in entering summary judgment on either breach of contract claim.
With respect to the 2003 consulting fee contract, plaintiffs do not dispute that if the contract was set forth in the 2 June and 19 June 2003 emails of Mr. Dickman and Mr. Taft, then defendants did not breach the contract because Pinnacle was not able to purchase all of the assets of RJRP. Instead, plaintiffs point to Mr. Taft's deposition testimony that the offer he accepted in his 19 June 2003 email was made over the telephone and was not contingent on Pinnacle purchasing all of RJRP's assets.
Plaintiffs did not, however, assert this breach of contract theory at the trial level. Their verified complaint alleged: “Dickman's offer was in a signed writing within the meaning of the Uniform Commercial Code.” Then, in responding to interrogatories, plaintiffs again asserted that “[t]he contract between Taft and Defendants (as well as the assignment of Taft's payment rights to RTB, Inc.) was formed by the offer and acceptance in the e-mail dated June 2, June 3, June 4 and June 19, 2003.... The terms of the contract, and all necessary detail, appear in the e-mail exchange.” That answer went on to quote the portion of Mr. Dickman's 2 June 2003 email regarding the ink supply contract and identified it “as part of the offer subsequently accepted by responsive e-mail from Taft.” Plaintiffs never sought to amend the complaint or withdraw these answers.
In addition, defendants' summary judgment motion asserted: “Plaintiffs' Complaint alleges, consistent with the evidence forecast in discovery, that the parties entered into a written contract in 2003 (“2003 Agreement”) relating to the terms under which Plaintiff Taft would be compensated for providing consulting services relative to Pinnacle's efforts to purchase the assets of RJR Packaging.” Although Mr. Taft's deposition testimony asserting an oral agreement had been filed with the trial court, plaintiffs did not dispute defendants' description of their breach of contract claim or argue their oral contract theory to the trial court.
In their reply brief, plaintiffs do not suggest that this theory was presented to the trial court, but rather argue that the defendants knew about the testimony and any objections to the oral contract theory being presented for the first time on appeal are mere “ ‘procedural’ arguments [that] are an insufficient basis to affirm a summary judgment.” As this Court has noted, however:
“Our Supreme Court has long held that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.... According to Rule of Appellate Procedure 10(b)(1), in order to preserve a question for appellate review, the party must state the specific grounds for the ruling the party desires the court to make.... The defendant may not change his position from that taken at trial to obtain a steadier mount on appeal....”
Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C.App. 343, 348, 712 S.E.2d 328, 332 (quoting State v. Holliman, 155 N.C.App. 120, 123, 573 S.E.2d 682, 685 (2002)), disc. review denied,365 N.C. 357, 718 S.E.2d 391 (2011). In Piraino Bros., this Court held that the plaintiffs, in arguing that a summary judgment order should be reversed, could not rely upon a theory that was not raised in the trial court. Id.
This principle—that a party may not rely upon a different theory than the one presented to the trial court—is well established. See, e.g., Cobb v. Pa. Life Ins. Co., ––– N.C.App. ––––, ––––, 715 S.E.2d 541, 551 (2011) (“His argument on section 58–63–15(11)(n) was not presented to the trial court, and [plaintiff] is barred from raising a new theory on appeal to defeat summary judgment.”); Frank v. Funkhouser, 169 N.C.App. 108, 114, 609 S.E.2d 788, 793 (2005) (holding that Court was “precluded” from considering plaintiff's argument that summary judgment should be reversed based on a negligent entrustment theory when plaintiff did not include theory in complaint and did not argue it to trial court in opposing summary judgment); Holroyd v. Montgomery Cnty., 167 N.C.App. 539, 546, 606 S.E.2d 353, 358 (2004) (holding that plaintiff was not entitled to argue for reversal of summary judgment based on theory of tortious interference with contract when plaintiff failed to include that claim in her complaint).
We are bound by this principle and may not ignore it. Because plaintiffs did not argue their oral contract theory to the trial court and because they make no argument that defendants breached any agreement set forth in the emails, we hold that the trial court properly granted summary judgment on plaintiffs' breach of contract claim regarding the consulting fee.
In the alternative, plaintiffs assert that they are entitled to payment based on their claims for quantum meruit and unjust enrichment. This Court has explained that “a plaintiff may recover in quantum meruit on an implied contract theory for the reasonable value of services rendered to and accepted by a defendant .” Horack v. S. Real Estate Co. of Charlotte, Inc., 150 N.C.App. 305, 311, 563 S.E.2d 47, 52 (2002).
It is, however, “a well established principle that an express contract precludes an implied contract with reference to the same matter.” Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962). Thus, “ quantum meruit ‘is not an appropriate remedy when there is an actual agreement between the parties.’ “ Horack, 150 N.C.App. at 311, 563 S.E.2d at 52 (quoting Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414 (1998)).
Likewise, it is well settled that a claim for unjust enrichment is “a claim in quasi contract or a contract implied in law” and, therefore, “[i]f there is a contract between the parties the contract governs the claim and the law will not imply a contract.” Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988). See also Atl. & E. Carolina Ry. Co. v. Wheatly Oil Co., 163 N.C.App. 748, 753, 594 S.E.2d 425, 429 (2004) (“The doctrine of unjust enrichment is based on ‘quasi-contract’ or contract ‘implied in law’ and thus will not apply here where a contract exists between two parties.”).
Because we have affirmed the entry of summary judgment based on the existence of a written contract between the parties relating to the consulting fee that was not breached, neither quantum meruit nor the doctrine of unjust enrichment is an available remedy for plaintiffs to recover compensation for Mr. Taft's consulting services. See Barrett Kays & Assocs. v. Colonial Bldg. Co., Inc. of Raleigh, 129 N.C.App. 525, 529, 500 S.E.2d 108, 111 (1998) (“The defendants further argue that the trial court erred in granting partial summary judgment as to their claim for quantum meruit. Because an express contract existed, quantum meruit was not appropriate.”). We, therefore, affirm the trial court's summary judgment order with respect to plaintiffs' quantum meruit and unjust enrichment claims relating to the consulting fee.
Turning to plaintiffs' claim that defendants breached the 2005 agreement between the parties by failing to purchase 2% of their ink from Siegwerk through RTB following the acquisition of RJRP by Pinnacle, defendants have argued that any agreement reached in 2005 was not supported by consideration. Plaintiffs, however, point to Mr. Taft's testimony that he only agreed to accept $110,000.00 for a consulting fee, instead of the $250,000.00 he contends he was owed under the 2003 contract, based on defendants' committing to buy a certain percentage of their ink from plaintiffs. Mr. Taft claims that this agreement was the only reason he did not pursue litigation to recover the full amount of the consulting fee:
I mentioned to him at that point in time, I've got to have the ink requirements and if you don't buy the ink from me, I need to be compensated. And he told me 2 percent of all inks bought would be a fair arrangement. That's why I agreed to the [$]110,000.
Past services will not generally constitute sufficient consideration to establish a contract. Penley v. Penley, 314 N.C. 1, 18, 332 S.E.2d 51, 61 (1985). However, “the general rule that prevents past services from supplying the consideration necessary to support a subsequent promise ‘does not include cases in which the consideration is a legal liability which arose before the promise was made, and upon which the promise is based. Such forms of consideration are sufficient.’ “ Id. at 18–19, 332 S.E.2d at 61–62 (quoting Jones v. Winstead, 186 N.C. 536, 540, 120 S.E. 89, 90–91 (1923)).
However, forbearance from asserting a right that does not exist cannot constitute adequate consideration. Thus, “[w]hether plaintiff's forbearance from bringing suit against defendant constituted adequate consideration ... depends on whether plaintiff had a legal or equitable right ... which was enforceable....” Zorba's Inn, Inc. v. Nationwide Mut. Fire Ins. Co., 93 N.C.App. 332, 334, 377 S.E.2d 797, 799 (1989).
Here, we have already held that plaintiffs did not have a legal right to recover under the 2003 contract. As a result, Mr. Taft's promise to forebear from litigating his entitlement to the consulting fee could not constitute proper consideration for the alleged contract to purchase 2% of ink requirements. Id. at 335, 377 S.E.2d at 799. The trial court, therefore, properly entered summary judgment on plaintiffs' breach of contract claim as to the alleged 2005 contract.
Although plaintiffs appear to be contending on appeal that their quantum meruit and unjust enrichment claims also apply to the commissions plaintiffs lost because defendants “did not give Mr. Taft and RTB the ink requirements contract that would have yielded those commissions,” they argue only that plaintiffs are entitled to the “reasonable value of [the] services” Mr. Taft provided in connection with Pinnacle's purchase of RJRP. Likewise, the complaint alleges that plaintiffs were entitled, under quantum meruit, “to the reasonable value of [Mr. Taft's] services” and, under the unjust enrichment doctrine, to “payment for benefits received.”
In other words, plaintiffs are seeking compensation for Mr. Taft's consulting services, a subject already addressed by an express contract. Plaintiffs have not explained how the ink requirements issue could be the basis for a quantum meruit or unjust enrichment claim separate from the issue of compensation for consulting services. Consequently, plaintiffs have failed to show that the trial court erred in granting summary judgment to defendants on plaintiffs' claims, and we affirm.
Affirmed. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).