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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
GUY F. WING d/b/a FRANKLIN HOMES CONSTRUCTION, Plaintiff, v. TOWN
OF LANDIS, Defendant
Filed: 3 August 2004
Quantum Meruit_cost of unused engineering plans_no benefit received
Summary judgment was properly granted for defendant town on a developer's quantum
meruit claim for the cost of plans for a water line extension which was never built. There was no
showing that the plans for the extension were prepared by plaintiff in expectation of repayment
by defendant or that defendant received any benefit from the plans.
Appeal by plaintiff from order entered 20 May 2003 by Judge
Kim S. Taylor in Rowan County Superior Court. Heard in the Court
of Appeals 21 April 2004.
Ferguson, Scarbrough & Hayes, P.A., by James E. Scarbrough,
Woodson, Sayers, Lawther, Short, Parrott & Walker, L.L.P., by
Donald D. Sayers, for defendant-appellee.
Plaintiff Guy F. Wing, d/b/a Franklin Homes Construction,
appeals from the trial court's order granting summary judgment to
defendant Town of Landis on plaintiff's quantum meruit claim for
reimbursement of the cost of engineering plans for a water line
extension. Because there was no showing that the plans were
prepared in expectation of payment by the Town or that the Town
received any benefit from the plans, plaintiff has failed to
produce a forecast of evidence sufficient to establish each of the
elements of his claim. The trial court, therefore, properly
granted defendant's motion for summary judgment.
Early in 2001, plaintiff, a developer, sought to have
municipal water service extended to serve an expansion of his
Highland Woods development in the town of Landis. The Town
informed plaintiff that the State's approval of any extension of
service was contingent upon the Town's obtaining an additional
water source from the City of Salisbury. The Town, however, agreed
to apply to the N.C. Department of Environmental and Natural
Resources ("DENR") for approval of an extension of its water
service to Highland Woods. Plaintiff hired an engineer, at a cost
of $22,469.00, to draft plans for the extension of service and to
prepare an application for approval of the plans to be submitted to
DENR. On 14 May 2001, the engineer submitted to DENR the completed
application, signed by the Town's Mayor as required by DENR.
On 21 June 2001, DENR responded to the application by letter,
requesting additional information prior to processing the
application. The evidence is conflicting as to whether the Town's
engineer or plaintiff's engineer was supposed to respond to DENR's
request for additional information. In any event, neither
Nevertheless, on 3 January 2002, DENR notified the Town that
DENR would be able to approve expansion of the Town's water system
since an "authorization to construct" letter had been issued to the
City of Salisbury permitting it to supply additional water to the
Town. When the Town's administrator called plaintiff's agent with
the news, however, plaintiff's agent informed him that plaintiff no
longer needed the water line extension. Plaintiff planned insteadto construct community wells to serve the new homes. As a result,
the water line extension has never been built.
On 5 August 2002, plaintiff filed a complaint alleging that by
failing to respond to the State's requests for information, the
Town breached its agreement to apply for approval of the
application and, therefore, owed plaintiff $22,469.00 in
reimbursement of plaintiff's cost in obtaining engineering plans
for the water line extension. On 22 January 2003, the Town filed
a motion for summary judgment, which the trial court granted in an
order entered 20 May 2003. Plaintiff filed notice of appeal to
this Court on 18 June 2003.
Standard of Review
Summary judgment shall be granted "if 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." N.C.R. Civ. P. 56(c). The party
moving for summary judgment has the burden of establishing the lack
of a triable issue. Collingwood v. Gen. Elec. Real Estate
Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The
movant may meet this burden by showing that the opposing party
cannot produce evidence to support an essential element of his
claim or cannot surmount an affirmative defense that would bar the
claim. Id. Once the moving party meets its burden, then the
non-moving party must "produce a forecast of evidence demonstrating
that [he] will be able to make out at least a prima facie case at
trial." Id. In deciding the motion, all inferences of fact mustbe drawn against the movant and in favor of the party opposing the
motion. Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381
On appeal, this Court's task is to determine whether, on the
basis of the materials presented to the trial court, there is a
genuine issue as to any material fact and whether the moving party
is entitled to judgment as a matter of law. Oliver v. Roberts, 49
N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied, __
N.C. __, 276 S.E.2d 283 (1981). A trial court's ruling on a motion
for summary judgment is reviewed de novo because the trial court
rules only on questions of law. Virginia Elec. & Power Co. v.
Tillett, 80 N.C. App. 383, 384-85, 343 S.E.2d 188, 191, cert.
denied, 317 N.C. 715, 347 S.E.2d 457 (1986).
Plaintiff concedes that his agreement with the Town regarding
the DENR application is unenforceable under N.C. Gen. Stat. § 160A-
16 (2003), which provides that a contract made by or on behalf of
a city is void and unenforceable unless it is in writing. See also
Concrete Machinery Co. v. City of Hickory
, 134 N.C. App. 91, 95,
517 S.E.2d 155, 157 (1999) (oral agreement to relocate sewer line
unenforceable). Plaintiff contends on appeal, however, that he is
entitled to recover his engineering costs under a theory of quantum
To recover in quantum meruit
, a plaintiff must show that (1)
services were rendered to the defendant; (2) the services were
knowingly and voluntarily accepted; and (3) the services were not
given gratuitously. Scott v. United Carolina Bank
, 130 N.C. App.426, 429, 503 S.E.2d 149, 152 (1998), disc. review denied,
99, 528 S.E.2d 584 (1999). In addition, "[q
require a showing that both parties understood that services were
rendered with the expectation of payment." Id.
A party may
recover from a municipality under a quantum meruit
theory upon a
(See footnote 1)
, e.g., Charlotte Lumber & Mfg. Co. v. City of
, 242 N.C. 189, 87 S.E.2d 204 (1955) (plaintiff could
recover against city in quantum meruit
); Hawkins v. Town of Dallas
229 N.C. 561, 50 S.E.2d 561 (1948) (plaintiff could recover against
town in quantum meruit
); Orange Water & Sewer Auth. v. Town of
, 58 N.C. App. 676, 294 S.E.2d 757 (plaintiff could recover
under an implied agreement in order to prevent the unjust
enrichment of the town), disc. review denied,
307 N.C. 127, 297
S.E.2d 400 (1982).
In this case, plaintiff failed to present any evidence that
the engineering plans were prepared with an expectation of payment
by the Town. See also Twiford v. Waterfield
, 240 N.C. 582, 585, 83
S.E.2d 548, 551 (1954) ("The plaintiff must show by the greater
weight of the evidence that both parties, at the time the labor was
done or the services were rendered, contemplated and intended that
pecuniary recompense should be made for the same."). Plaintiff's
evidence showed only that plaintiff, as the developer, hired and
paid its own engineer to complete the engineering plans. There was
no evidence that either party, at the time, expected the Town to
reimburse plaintiff for the cost of the plans. In addition,
does not apply where no benefit
accrues to the party from whom compensation is sought." Scott,
N.C. App. at 430-31, 503 S.E.2d at 152. See also Booe v. Shadrick
322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988) (internal citations
omitted) ("[i]n order to establish a claim for unjust enrichment,
a party must have conferred a benefit on the other party. The
benefit must not have been conferred officiously . . . . The
benefit must not be gratuitous and it must be measurable . . .
[and] the defendant must have consciously accepted the benefit.").
Plaintiff argues that there was evidence that the Town "would have
benefited" and "stood to benefit and intended to benefit from
extension of water to plaintiff's subdivision." Plaintiff does
not, however, cite any cases, which support its argument that it
may recover where the benefit was intended, but not received. In
each of the cases cited by plaintiff, the municipality actually
received a tangible benefit in the form of some type of
infrastructure whereas, here, the water line was never built. See
, 242 N.C. at 195, 87 S.E.2d at 208 (city
appropriated plaintiff's sewer system and assumed maintenance and
operation of it); Hawkins
, 229 N.C. at 564, 50 S.E.2d at 563
(plaintiff constructed sewer line and paved streets and town
accepted the work
); Orange Water & Sewer Auth.
, 58 N.C. App. at
683, 294 S.E.2d at 761 (plaintiff had installed fire hydrants). As
the Court held in Hawkins
, "where the construction work has been
actually done and accepted
. . . the county, city or town 'is bound
on a quantum meruit
for the reasonable and just value of the work
and labor done and material furnished.'" 229 N.C. at 564, 50S.E.2d at 563 (emphasis added; quoting McPhail v. Board of Comm'r
of Cumberland County
, 119 N.C. 330, 335, 25 S.E. 958, 959 (1896)).
Here, although plaintiff had engineering plans prepared for a
water line extension, the Town never received any benefit from
those plans because the water lines were never built.
this Court observed in Greeson v. Byrd
, 54 N.C. App. 681, 683, 284
S.E.2d 195, 196 (1981), disc. review denied,
305 N.C. 299, 291
S.E.2d 149 (1982), "one of the necessary elements for recovery on
a contract implied in law is missing here _ there is no evidence in
the record to indicate that any benefit inured to the defendant as
a result of plaintiff's partial performance. Without enrichment,
there can be no 'unjust enrichment' and therefore no recovery on an
implied contract." Because of the lack of any benefit to the Town,
plaintiff may not recover in quantum meruit
. See id.
the crop to be cultivated and harvested by the plaintiff, not the
plaintiff's labor, for which the defendant bargained. Thus, there
could be no recovery for the value of partial performance of the
contract since no part of the crop was produced.")
Plaintiff nonetheless argues that the Town may still be able
to use the engineering plans in the future. As the Town points
out, however, it has no use for plans extending water service to
Highland Woods because plaintiff now has constructed wells to serve
the new phase of his development. Indeed, the planned extension
was stricken from the Town's water system expansion plans when
plaintiff informed the Town that he no longer needed the water.
Plaintiff offered no contrary evidence and has provided no
explanation of how the Town could use the plans in the future. Viewing the evidence in the light most favorable to plaintiff,
there was no showing that the engineering plans were prepared with
an expectation of payment by the Town or that the Town received a
benefit from completion of the plans for the water line extension.
Therefore, the court properly granted summary judgment to the Town.
Judges BRYANT and ELMORE concur.
The Town has not asserted sovereign immunity and, therefore,
we do not address that affirmative defense.
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