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Law Offices of Mark C. Kirby, P.A. v. Industrial Contractors Inc.

July 07, 1998

THE LAW OFFICES OF MARK C. KIRBY, P.A., PLAINTIFF
v.
INDUSTRIAL CONTRACTORS, INC. AND BUDDY HARRINGTON, DEFENDANTS



The opinion of the court was delivered by: Greene, Judge.

Appeal by defendant Buddy Harrington from order dated 14 February 1997 by Judge Robert B. Rader in Wake County District Court. Heard in the Court of Appeals 22 April 1998.

Buddy Harrington (defendant) appeals from the trial court's order and final judgment granting the directed verdict motion of The Law Offices of Mark C. Kirby, P.A. (plaintiff).

The facts are as follows: On 17 March 1995, the plaintiff filed a verified complaint against the defendant and Industrial Contractors, Inc. (ICI). The plaintiff sought relief for breach of contract, account stated, and quantum meruit, for an amount of $61,104.48 plus contract interest. In his answer, the defendant denied liability and alternatively asserted as a defense that any agreement to pay for the legal debts of ICI was not enforceable because it was not in writing. The plaintiff moved for summary judgment and the trial court granted the motion as to ICI and awarded a final judgment in the amount of $61,104.48 plus interest. This order was appealed by ICI to this Court which upheld the trial court in COA97-410, an unpublished opinion. As to the claims against the defendant, the trial court denied the summary judgment motion and the case proceeded to trial. A jury trial was held on 2 December 1996, but it ended in a mistrial.

A new trial was set for 10 February 1997. On 31 January 1997, the defendant moved to continue the trial until this Court had ruled on COA97-410. The trial court denied that request for a continuance and the defendant's subsequent oral motion to continue at trial. The record indicates that the defendant moved to join Mark Kirby individually (Kirby) as a necessary party to the litigation; however, that motion was also denied by the trial court.

At trial, the plaintiff offered the testimony of two witnesses, Susan Worsely (Ms. Worsely), the plaintiff's paralegal, and Kirby, along with various exhibits. The evidence reveals that the defendant incorporated a new corporation known as ICI and that he was the sole stockholder and president of that corporation. Soon after its incorporation, ICI purchased the assets of another company and at that time the defendant informed Kirby that "I want you to be my lawyer." Kirby stated that he "knew [ICI] was a new company . . . and that [the defendant] had borrowed approximately $160,000 personally from United Carolina Bank and mortgaged his house to start [ICI]. And so my agreement with [the defendant] was as long as you agree that if the company can't pay me, you'll pay me, I'll work for you." Kirby further testified that the defendant "continually assured [him] that [he] would get paid if [he] just stayed on the job . . . ." Neither ICI nor the defendant paid the plaintiff for legal services rendered to ICI. Kirby met with the defendant after sending the defendant "demand letters" and the defendant "personally ensure[d]" Kirby that he would be paid as soon as the defendant could pay him. Kirby stated that the defendant had repeatedly told him that if ICI succeeded, he (the defendant) would succeed personally and if it did not, "[h]e wouldn't survive personally."

Ms. Worsely testified that the defendant had said several times that he knew "he owed . . . Kirby the money for the matters that [Kirby] had worked on and realized that there weren't many attorneys that would carry along and do as . . . Kirby did without the bills being paid."

The evidence further revealed that the plaintiff was not incorporated until 1994, thus some of the legal services rendered to ICI were performed by Kirby, individually, before he incorporated into the plaintiff. Kirby, however, testified without objection that at the time the plaintiff was incorporated he assigned all his receivables to the plaintiff.

The defendant cross-examined Kirby and Worsely, presented Kirby as an adverse witness, and introduced several exhibits. Both parties moved for a directed verdict at the close of the plaintiff's evidence and both motions were denied. The defendant's basis for the directed verdict motion was that the alleged agreement was oral and thus not enforceable because of the statute of frauds. At the close of all the evidence the plaintiff renewed his motion for a directed verdict. In opposing the motion the defendant argued that a jury question was presented as to whether the defendant was "wearing his director's and shareholder's cap as an agent of ICI or . . . his own cap as an individual."

The issues are whether: (I) the defendant's motion for continuance should have been granted because of the previously filed appeal of ICI; (II) the directed verdict was error because the credibility of the plaintiff's witnesses is a jury question; and (III) Kirby was a necessary party united in interest with the plaintiff who must be joined in the action.

I.

The denial of a motion to continue will be upheld on appeal unless the trial court abused its discretion. Melvin v. Mills-Melvin, 126 N.C. App. 543, 545, 486 S.E.2d 84, 85 (1997). N.C. Gen. Stat. § 1-294 provides that, "[w]hen an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from." N.C.G.S. § 1-294 (1996).

The defendant argues that the trial court lacked jurisdiction to hear this case because his liability to the plaintiff is a "matter embraced within" the case against ICI from which a proper appeal was pending at the time this case was called for trial. We disagree.

The claim against the defendant is separate from the claim against ICI and the issue of the defendant's liability was not implicated in the prior case against ICI. In that case, the question was whether ICI owed the plaintiff money for services rendered; not whether the defendant promised to pay for the debts of ICI, the issue in this case.

The record does not indicate that the defendant made any attempt to object when the plaintiff offered evidence of the summary judgment against ICI and the pending appeal. Therefore, because the issue was not properly preserved, see N.C.R. App. P. 10(b)(1), we reject the defendant's ...


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