MARGARET L. KOLB and LUCY ZANTOUT,
Plaintiffs,
v
.
SCHATZMAN & ASSOCIATES, L.L.C. and PHILIP KING,
Defendants.
Appeal by plaintiffs from judgment entered 4 December 2000 by
Judge Russell G. Walker, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 9 January 2002.
Law Offices of William F. Maready, by William F. Maready and
Celie B. Richardson, for plaintiff-appellants.
Sharpless & Stavola, P.A., by Joseph M. Stavola and Joseph P.
Booth, III, for defendant-appellees.
HUDSON, Judge.
Plaintiffs appeal two Orders and Judgments entered in favor of
defendants Schatzman & Associates, L.L.C. (“defendant”), a private
investigative and security service company, and Philip L. King
(“King”). The court granted defendant's motion for summary
judgment on plaintiffs' claims and on defendant's counterclaim for
breach of contract. The court also granted King's motion for
summary judgment on plaintiffs' claims against him. We briefly
review the facts and procedural history before addressing the sole
issue on appeal.
In April 1986, Lucy Kolb (“Lucy”), the daughter of Margaret
Kolb (“Margaret”), married Bassam Zantout (“Bassam”), a citizen of
Lebanon, and resided with him in North Carolina until November1996. The couple had three children who maintained both American
and Lebanese citizenship. Bassam found a job in Dubai, UAE, and
the Zantouts and their three children moved there in 1996. When
Bassam lost his job, the Zantouts returned to North Carolina in the
summer of 1998 and then decided to move to Lebanon in October 1998.
Lucy did not have citizenship in Lebanon, where laws required that
she obtain her husband's assistance in maintaining her visa so that
she could remain in the country. Soon after they arrived in
Lebanon, the Zantouts' relationship deteriorated and Bassam became
increasingly abusive to Lucy and their three children. Bassam
refused to renew Lucy's visa and informed her that she would be
expelled from the country on 2 March 1999, but that their children
would stay with him.
In February 1999, Lucy escaped with the children from the
Zantout family home and sought help at the American embassy in
Beirut, Lebanon. Lucy discovered that Bassam had placed a block on
Lucy's and the children's passports. Lucy contacted her mother,
Margaret, and asked her to help them leave Lebanon. Margaret,
fearing that Bassam was tapping her phone, contacted William
Schatzman at Schatzman & Associates, L.L.C. When Mr. Schatzman
came to her home to check her phone for a wire tap, Margaret
explained Lucy's problem to him, and he indicated that his company
could help. Margaret and defendant entered into an oral agreement,
whereby she agreed to pay defendant a $15,000 retainer plus
additional fees and expenses. Defendant agreed to retain King, a
former FBI Agent and independent contractor, to “provide assistanceto [Lucy and the children] in obtaining exit from Lebanon, if
possible.”
King found Lucy and the children in Lebanon, and after
analyzing possible escape scenarios, decided to take them out of
Lebanon through Syria on 1 March 1999. King hired drivers to take
him, Lucy, and the children into Syria. They had difficulties at
the border, but were allowed to enter. However, when they later
attempted to exit Syria, they were stopped because their passports
had not been properly stamped at the Lebanon-Syria border. They
were not allowed to leave Syria for most of March 1999. During
this time, Margaret became increasingly anxious that Lucy and the
children would not return home to North Carolina. She retained
Michael Taylor of American International Security Corporation in
Boston for $155,000 to get Lucy and the children out of Syria.
Taylor found King, Lucy, and the children, but encountered
difficulty extricating them from Syria. Finally, on 31 March 1999,
a Syrian judge deported King, Lucy, and the children, and they flew
from Damascus, Syria, to Germany, and then to Greensboro, North
Carolina on 1 April 1999.
Margaret and Lucy filed this lawsuit on 15 October 1999.
Margaret alleged claims against defendant for (1) negligence, (2)
breach of contract, (3) fraud, (4) negligent infliction of
emotional distress, and (5) unfair and deceptive trade practices.
Margaret alleged claims against King for (1) breach of contract,
(2) negligence, and (3) negligent infliction of emotional distress.
Lucy alleged claims against defendant and King for negligentinfliction of emotional distress. Defendant answered denying all
liability, asserting eleven affirmative defenses, and alleging as
counterclaims: (1) breach of express contract against Margaret, (2)
quantum meruit against Margaret, and (3) quantum meruit against
Lucy. King answered denying all liability and asserting fourteen
affirmative defenses. After discovery and preliminary proceedings,
the parties argued their dispositive motions before the trial court
on 14 November 2000.
The trial court granted defendant's motion for summary
judgment on all of both plaintiffs' claims against defendant, and
on defendant's counterclaim against Margaret for breach of
contract. The court also allowed King's motion for summary
judgment as to all claims of both plaintiffs against him. The
court entered judgment against Margaret for $47,662.41 plus
interest, equal to the balance that she owed defendant under the
oral contract, and dismissed the quantum meruit claims as moot.
Both plaintiffs gave notice of appeal of all rulings.
However, the appellants' brief argues only that the money
judgment against Margaret was erroneous because it amounted to
enforcement of an illegal contract. All other issues raised by
plaintiffs are deemed abandoned. Therefore, pursuant to Rule 10 of
the North Carolina Rules of Appellate Procedure (1999), our review
is limited to Margaret's appeal of the summary judgment against her
on defendant's counterclaim for breach of contract.
On appeal, “[i]t is well established that the standard of
review of the grant of a motion for summary judgment requires atwo-part analysis of whether, '(1) the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, show that there is no genuine issue as to any
material fact; and (2) the moving party is entitled to judgment as
a matter of law.'” Von Viczay v. Thoms, 140 N.C. App. 737, 738,
538 S.E.2d 629, 630 (2000) (citing Gaunt v. Pittaway, 139 N.C. App.
778, 784, 534 S.E.2d 660, 664 (2000), cert. denied, ___ U.S. ___,
151 L. Ed. 2d 261 (2001)), aff'd, 353 N.C. 445, 545 S.E.2d 210
(2001); see also N.C.R. Civ. Proc. 56 (1999). “An issue is
material if the facts alleged would constitute a legal defense, or
would affect the result of the action, or if its resolution would
prevent the party against whom it is resolved from prevailing in
the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518,
186 S.E.2d 897, 901 (1972). The burden of proof is on the party
moving for summary judgment, here the defendant Schatzman &
Associates, L.L.C., to show that summary judgment is appropriate.
See Adams v. Jefferson-Pilot Life Ins. Co., ___ N.C. App. ___,
___, 558 S.E.2d 504, 506 (2002). Additionally, the record must be
reviewed in the light most favorable to the non-moving party. See
id.
We first examine whether the record presents any genuine
issues of material fact. In both Margaret's complaint and
defendant's counterclaims, the parties alleged that there was a
contract between Margaret and defendant. In her “Second Claim for
Relief: Breach of Contract,” Margaret contended:
37. In about February 1999, Margaret
(plaintiff) entered into an agreementwith defendant whereby defendant agreed
to extricate Lucy and her children from
Beirut, Lebanon and return them to the
United States in return for a fee to be
paid by Margaret.
38. Margaret paid the fee required by
defendant in accordance with her
agreement with defendant.
39. Defendant failed to return Lucy and the
children to the United States and
instead, caused them to be detained in
Syria.
40. Defendant's failure to return Lucy and
the children to the United States
constitutes a breach of its contract with
Margaret.
In its “First Counterclaim: Breach of Express Contract,” defendant
contended:
29. By mutual agreement and assent of Ms.
Margaret Kolb on behalf o[f] herself, and
Mr. Bill Schatzman on behalf of Schatzman
& Associates, LLC, on or about February
15, 1999 Ms. Kolb entered into a[n]
agreement with Schatzman & Associates,
LLC, whereby Schatzman & Associates, LLC,
would undertake to assist Ms. Zantout and
the Children obtain exit from Lebanon, to
include, among other things, one or more
of the following tasks (“Contract”):
a. Travel to Beirut, Lebanon, and
locate Ms. Lucy Kolb Zantout and the
Children;
b. After locating Ms. Zantout and the
Children, assist Ms. Zantout and the
Children obtain exit from Lebanon
before Ms. Zantout's Lebanese travel
visa expired sometime during late
February, 1999;
c. Obtain or otherwise purchase
whatever goods or services were
reasonably necessary to assist in
the task of helping Ms. Zantout and
the Children obtain exit from
Lebanon; and
d. Take whatever steps or measures were
determined to be reasonably
necessary in order to assist Ms.
Zantout and the Children in
returning from the Middle East toWinston Salem, North Carolina.
Defendant also contended that the parties agreed upon the rates for
services at $75.00 per hour for all services not requiring travel
outside of the United States, and $750.00 per day plus costs and
expenses for all services provided outside of the United States.
Margaret admitted that she agreed to the fee schedule asserted by
defendant, but that “she agreed to pay the fees stated in this
paragraph if defendant met its obligation under her agreement with
defendant.” The remaining issue is whether defendant completed its
portion of the contract with Margaret, thus entitling it to
payment.
In her deposition, Margaret testified concerning the oral
contract made with defendant:
Q. Sure. You've told me that Mr.
Schatzman made no guaranties to you with
respect to when, if at all, Lucy and the
children would be back in Forsyth County,
correct?
A. Yes. He--he didn't say he could
guarantee it, because he wasn't there to make
the contacts himself.
Q. And my question to you, then, is,
Isn't it fair to say, then, that Mr. Schatzman
had told you that Mr. King would go over there
and do the best that he could to try and get
Lucy and the grandchildren back in--back to
Forsyth County as soon as possible, and that's
what they would try and do?
A. Yes. That's what they wanted to do,
and that's what he told me and that King was
very positive in the fact that this would--was
going to work and he had the contacts and it
would be no problem.
As indicated by her own testimony, Margaret acknowledged that
defendant never promised to get Lucy and her children out of
Lebanon, only that defendant and its associate, King, would do thebest they could to extricate them. Margaret also acknowledged that
defendant and King devised several plans to extricate the family
and eventually left Lebanon through the Syria border.
Thus, we conclude that there is no genuine dispute that
Margaret entered into a contract with defendant, whereby defendant
agreed to attempt to get Lucy and her children out of Lebanon and
into the United States, and Margaret agreed to pay a $15,000
retainer fee, hourly and daily rates depending on where the
services were provided, plus fees and costs. Margaret paid the
retainer fee, and defendant attempted to extricate Lucy and her
children from Lebanon. Because defendant performed as agreed under
the oral contract, and Margaret did not, the trial court properly
allowed defendant's motion for summary judgment on its counterclaim
for breach of express contract.
However, Margaret contends that the contract with defendant,
if any, was illegal and therefore unenforceable. Defendant argues
that the issue of illegality is not properly before us, because it
was not raised in the trial court. In that the plaintiff's Reply
to the Counterclaims specifically alleges that illegal acts were
carried out, we disagree. “Generally, contracts which are illegal
are unenforceable.” Furr v. Fonville Morisey Realty, Inc., 130
N.C. App. 541, 545, 503 S.E.2d 401, 405 (1998), disc. rev. improv.
allowed, 351 N.C. 41, 519 S.E.2d 314 (1999). Here, despite the
allegations in her Reply, we find no evidence that Margaret and
defendant entered into an illegal contract. Margaret testified
during her deposition about possible actions that might be taken bydefendant's agents, as follows:
Q. And tell me a little bit about this-
-You had said that it was your understanding
that Mr. Schatzman had instructed Phil King
not to do anything illegal himself, I think,
is the way you described it.
A. Uh-huh.
Q. What is your understanding of what
those instructions were about?
A. Well, obviously, with the children
having a block on their passports, however
they got out would have to be illegal-
Q. And you knew that?
A. --perhaps, although the embassy
issued them new passports. But those new
passports, therefore, had no entry stamps into
Lebanon for the children. They were just
empty passports.
But that King himself was not to do
anything illegal that would get King into
trouble, that he could arrange, and other
people would do the dirty work, should I say,
and King would keep his hands clean.
The contract between Margaret and defendant required defendant to
attempt to extricate Lucy and her three children from Lebanon and
return them to the United States. There was no evidence that the
contract, when entered, provided for illegal activity, and no
evidence beyond speculation that defendant's agents broke any laws
attempting to help Lucy and the children. Eventually, Lucy and the
children were deported from Syria by a Syrian judge, apparently in
accordance with Syrian law. Even though Margaret states that
“obviously, with the children having a block on their passports,
however they got out would have to be illegal,” the children and
Lucy left Lebanon through a border checkpoint with Syria, Syrian
officials inspected the family's passports and allowed them to
enter the country. The record reflects that they left Lebanon on
1 March 1999, when Lucy's visa had not yet expired, and the recorddoes not reflect what, if any, illegal acts were purportedly
committed. Margaret has not shown that she contracted for the
performance of illegal acts in entering the contract with defendant
to attempt to extricate Lucy and the children. We conclude that
the record does not establish that the contract between defendant
and Margaret was illegal or unenforceable.
In sum, we find that the trial court properly granted
defendant's motion for summary judgment on its counterclaim for
breach of express contract against Margaret and that the underlying
contract was legal and enforceable.
Affirmed.
Judges WYNN and THOMAS concur.
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