Opinion
No. COA11–1386.
2012-07-3
Alcadio ESCARRAMAN and Agustina Acevedo, Husband and Wife, Plaintiffs, v. NORTHWOODS AT COULWOOD HOMEOWNERS ASSOCIATION, INC.; and Landmark Capital, LLC, Defendants.
No brief filed for Defendant–Appellee Landmark Capital, LLC. Baucom, Claytor, Benton, Morgan & Wood, P.A., by Rex C. Morgan; and Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Robert C. Dortch, Jr., for Defendant–Appellant Northwoods at Coulwood Homeowners Association, Inc.
Appeal by Defendant Northwoods at Coulwood Homeowners Association, Inc. from order entered 4 August 2011 by Judge Richard D. Boner in Superior Court, Mecklenburg County. Heard in the Court of Appeals 24 April 2012. No brief filed for Defendant–Appellee Landmark Capital, LLC. Baucom, Claytor, Benton, Morgan & Wood, P.A., by Rex C. Morgan; and Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Robert C. Dortch, Jr., for Defendant–Appellant Northwoods at Coulwood Homeowners Association, Inc.
McGEE, Judge.
Defendant Northwoods at Coulwood Homeowners Association, Inc. (Northwoods) appeals from the trial court's order granting summary judgment on a cross-claim against Northwoods filed by Defendant Landmark Capital, LLC (Landmark). Alcadio Escarraman and Agustina Acevedo (Plaintiffs) are not parties to this appeal.
Northwoods filed a claim of lien on 16 July 2009 for unpaid homeowner's assessments against Plaintiffs. These unpaid assessments were for Plaintiffs' house (the property) located in the Northwoods at Coulwood Subdivision. Because Plaintiffs' assessments remained unpaid, Northwoods instituted a foreclosure action on 18 November 2009. The property was sold at a foreclosure auction on 16 February 2010 for $2,429.50. Northwoods, through its holding company, JMA Holdings, LLC, was the high bidder at the auction. Landmark, a company that purchases foreclosed properties, contacted Northwoods by email on 19 February 2010 and offered to purchase Northwoods' interest in the property for $10,000.00, which included $2,429.50 to cover the bid amount to be paid by Northwoods, and $7,570.50 for the assignment of Northwoods' interest. Northwoods agreed, and an “Assignment of Interest in Bid” was executed and filed with the Clerk of Superior Court, Mecklenburg County, on 3 March 2010, assigning all of Northwoods' interest in the bid to Landmark. Northwoods' bid remained the last and highest bid when the bid period ended. An “Association Lien Foreclosure Deed” was executed on 8 March 2010, deeding all of Northwoods' interest in the property to Landmark.
Plaintiffs filed an action against Northwoods, Landmark, and Mecklenburg County on 5 April 2010. In their complaint, Plaintiffs alleged wrongful foreclosure by Northwoods due to insufficient notice, and a constructive trust or equitable lien on the property. Plaintiffs requested that the trial court set aside the foreclosure sale. Northwoods answered Plaintiffs' complaint on 24 May 2010, and counterclaimed, requesting that Plaintiffs' complaint be dismissed and for judgment to be entered against Plaintiffs for at least $10,000.00.
In an ancillary proceeding, the trial court entered an order on 7 May 2010, vacating the order of sale and setting aside the sale of the property. The 7 May 2010 order vacating the prior order permitting foreclosure on the property was based upon the trial court's determination that service on Plaintiffs had been inadequate, and Plaintiffs' failure to respond to Northwoods' claim of lien was due to mistake, inadvertence, or excusable neglect.
Landmark filed its answer to Plaintiffs' complaint, along with counterclaims and cross-claims against Northwoods, on 7 June 2010. Landmark's cross-claims against Northwoods included Northwoods answered Landmark's cross-claims on 9 June 2010. Landmark's argument was that, because of Northwoods' negligence with regards to the inadequate service of Plaintiffs, Landmark had paid Northwoods $10,000.00 to acquire a property in which Northwoods held no transferrable interest. Because the foreclosure sale was set aside, Landmark had paid Northwoods $10,000.00 and received nothing in return. Therefore, according to Landmark, Northwoods had been unjustly enriched.
Plaintiffs voluntarily dismissed Mecklenburg County from their action on 12 July 2010. Plaintiffs moved for partial summary judgment against Northwoods on 5 May 2011. Landmark moved for summary judgment against Northwoods on 9 May 2011. Arguments on summary judgment were heard 26 July 2011. The trial court granted Landmark's motion for summary judgment against Northwoods by order entered 4 August 2011 and ordered Northwoods to pay Landmark $10,000 .00 in damages plus interest. The trial court denied Plaintiffs' motion for partial summary judgment against Northwoods by order filed 23 August 2011. Northwoods appeals from the 4 August 2011 order granting summary judgment in favor of Landmark on Landmark's cross-claim against Northwoods.
This appeal is interlocutory because Plaintiffs' claims against Northwoods have not been decided. This Court has held, relying on Investments v. Housing, Inc., 292 N.C. 93, 99–100, 232 S.E.2d 667, 671–72 (1977), that the grant of summary judgment for a monetary sum affects a substantial right and is therefore immediately appealable. Leasing Corp. v. Myers, 46 N.C.App. 162, 172, 265 S.E.2d 240, 247 (1980) (“In the case sub judice, however, we believe we are bound by Investments to hold that the trial court's entry of summary judgment for a monetary sum against defendant ... affects a ‘substantial right’ of this defendant. Accordingly, we must treat the judgment as immediately appealable under G.S. 1–277 and G.S. 7A–27.”). Because the 4 August 2011 grant of summary judgment in favor of Landmark was for a monetary sum, we must hold that the 4 August 2011 interlocutory order was immediately appealable.
II.
Northwoods argues that the trial court erred by granting summary judgment in favor of Landmark on Landmark's cross-claim against Northwoods for unjust enrichment, or quantum meruit. We agree.
This Court reviews a trial court's entry of summary judgment de novo. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” “ ‘When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.’ “ The moving party has the burden “to show the lack of a triable issue of fact and to show that he is entitled to judgment as a matter of law.”
Ron Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 488 (2010) (citations omitted).
Quantum meruit “operates as an equitable remedy based upon a quasi contract or a contract implied in law” which provides “a measure of recovery for the reasonable value of services rendered in order to prevent unjust enrichment.” Quantum meruit is “not an appropriate remedy when there is an actual agreement between the parties,” ... because “an express contract precludes an implied contract with reference to the same matter[.]”
Id. at 580, 704 S.E.2d at 489 (citations omitted).
Landmark sent an email to Northwoods' attorney on 19 February 2010, offering to purchase an assignment of Northwoods' interest in the property:
Would [Northwoods] ... be willing to assign this file to our firm, Landmark ... for a total of $10,000? (Bid Amt. $2,429.50 plus $7,570.50) [.] If no one upsets it, it will be up next Friday, February 26th at 5 pm. If this is agreeable, and no upset, we would need to sign a document stating our mutual agreement. We would be willing to pay the $2,429.50 for the deed when the bid is final so you can order the deed. The assignment/document could be held by our closing attorney ... and recorded by him. Your client would be paid the balance of $7,570.50 from the HUD–1 at closing which would take place as soon as we get the deed. Please let me know as soon as possible.
Northwoods' attorney apparently found some defect in the title to the property and, by email dated 23 February 2010, asked Landmark how it wished to proceed:
Since our conversation earlier I did hear from Tim Sellers. Please confirm with your title insurance company that based on the defect I discovered you are still willing to make the offer. If so we would make an additional request which is that the entire $10,000 .00 be paid up front in two checks. One for the bid amount and the other for the assignment of the bid. The one for the assignment can be held in our trust account until the deed is recorded. Please let me know if you wish to proceed with these terms and I can then check further with my client.
Landmark responded by email on 24 February 2010: “I am waiting to hear from my attorney and the title insurance. If this goes well, I will proceed with your terms. I should know something today, or early tomorrow.” The following day, Landmark responded further to Northwoods' attorney:
Just heard from my attorney. Title Insurance not a problem ... they will issue in spite of the map error. We will proceed per your Feb. 23rd email. The entire $10,000 will be paid up front in 2 checks. One for the bid amount and the other for the assignment. Do you want to send us an agreement, signed by your client [Northwoods] outlining the above before 5 p.m. tomorrow, when the bid becomes final? Then, when (and if) the bid becomes final, your client can assign the bid to Landmark ... and we will in turn cut 2 checks in the amount of $10,000 as outlined above.
Northwoods and Landmark executed the assignment on 3 March 2010. The assignment stated: “[Northwoods], being the last and highest bidder at the last sale of real property sold under power of sale contained in Claim of Lien foreclosed in this Special Proceeding, does hereby assign and set over ALL of [Northwoods'] interest in said bid unto: Landmark[.]” A deed for the property was executed on 8 March 2010, “by and between Northwoods ..., referred to as ‘first party’; and Landmark ..., referred to as ‘second party[.]’ “ The deed further stated:
Now, therefore, in consideration of the premises and of the payment of the said purchase price by the second party, ... first party does hereby bargain, sell, grant and convey unto the second party [the property].... To have and to hold the said land, together with all the privileges and appurtenances thereunto belonging unto said second party, ... in as full and ample a manner as the first party is authorized and empowered to convey the same.
The deed further stated: “The first party makes no warranties as to the status of title to the property ... or regarding the effect of the foreclosure proceeding on other liens, encumbrances or interests, recorded or unrecorded.”
It is clear from the record that Landmark and Northwoods entered into an agreement whereby Northwoods, in exchange for $10,000.00, would assign whatever interest it possessed in the property to Landmark. Landmark paid Northwoods $10,000.00, and Landmark and Northwoods executed the assignment. After Landmark emerged from the foreclosure process as the last and highest bidder for the property, and title to the property was purportedly transferred to Northwoods, Northwoods executed a deed conveying its interest, if any, to Landmark.
We hold that there was an actual agreement between Landmark and Northwoods for the conveyance of Northwoods' interest in the property. Because there was an actual agreement between the parties covering this dispute, Landmark could not recover on its quasi contract unjust enrichment claim. Harris, 364 N.C.at 580, 704 S .E.2d at 489 (“ Quantum meruit is ‘not an appropriate remedy when there is an actual agreement between the parties[.]’ ”).
We hold that the trial court erred in granting summary judgment in favor of Landmark on Landmark's cross-claim against Northwoods. We vacate the 4 August 2011 order granting summary judgment in favor of Landmark on Landmark's cross-claim, and remand to the trial court for entry of an order denying Landmark's 9 May 2011 motion for summary judgment.
Vacated and remanded. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).