Emerine v. Yancey

• Decision Date: 08 August 1996
• Docket Number: No. 94-CV-791.,94-CV-791.
• Citation: 680 A.2d 1380
• Parties: Richard J. EMERINE, Appellant, v. Richard H. YANCEY, Appellee.
• Court: D.C. Court of Appeals

680 A.2d 1380

Richard J. EMERINE, Appellant, v. Richard H. YANCEY, Appellee.

No. 94-CV-791.

District of Columbia Court of Appeals.

Argued January 11, 1996.

Decided August 8, 1996.

John Edwards Harrison, with whom John C. Pasierb, Arlington, VA, was on the brief, for appellant.

Joseph C. Woytash Jr., Silver Springs, MD, with whom Francis G. McKenna was on the brief, for appellee.

Before FARRELL, RUIZ and REID, Associate Judges.

RUIZ, Associate Judge:

The principal issue in this appeal is whether defendant-appellant Richard Emerine was denied his right to trial by jury after the trial court allowed amendment of the complaint, over Emerine's objection, during a bench trial. We hold that because the amendment did not raise any issue that Emerine did not anticipate or could not have anticipated in light of the allegations of the original complaint, for which he did not demand a jury trial, he was not denied his right to trial by jury. Because we find no merit in Emerine's other contentions on appeal, we affirm.

I.

Appellant, Emerine, and two associates shared, through their ownership of stock in a firm called American Consolidated Financial Corporation, indirect ownership and control of Intercontinental Communications, Inc. In 1989, ICI was sold to another telecommunications firm in a stock-for-stock merger. In connection with the merger, appellee, Richard H. Yancey, was hired by Emerine to perform accounting work on behalf of ICI. Yancey brought this action to recover payment for his work. In his complaint, Yancey alleged,

Pursuant to an agreement entered into in 1989 ... and continuing thereafter until October of 1991, the Plaintiff appellee performed accounting and financial services for the Defendant appellant and other persons, for which the Defendant is both jointly and severally liable.

Neither party having demanded a jury, the case was tried to the court. During the trial, evidence emerged that in February 1990, Emerine and his associates had agreed to be personally responsible for Yancey's fees. Emerine objected to reliance on the evidence as being a variance from the complaint. At the urging of the trial court, Yancey moved to amend the complaint to allow him to recover based on proof of the subsequent agreement.¹ The trial court granted the motion and allowed Emerine a two-week continuance to permit him time to secure the testimony of an additional witness he asserted was necessary to meet the evidence.

Following the trial, the trial judge made the following findings of fact, which neither party has challenged on appeal:

Following the sale of the corporation, in May 1989, Emerine and his associates, acting as officers of the corporation, hired Yancey to do post-closing accounting work for the corporation. No written contract or explicit arrangement was made regarding payment. Nevertheless, over the succeeding months, Yancey billed ICI for the work he performed, but was not paid.

In February 1990, Yancey advised Emerine and his associates that it would be to their advantage for them personally to pay for his work, because he would then not have to list his bills as a liability of the corporation, thereby reducing the value of the corporation's stock. Emerine agreed to Yancey's proposal. Based on the foregoing findings, the trial court concluded that Emerine was liable to Yancey for his fees at his usual rate.

On appeal, Emerine raises one substantive issue and several procedural issues. Substantively, Emerine asserts that the trial court impermissibly held him liable on an "implied" contract when there was already in existence an "express" contract with ICI. Procedurally, Emerine contends that Yancey's complaint was insufficient to put him on notice of the claim against him, that the trial court improperly overruled his objection to amendment of the complaint to conform to the evidence adduced at trial, that the trial court should have acceded to his demand for a jury trial following its allowance of amendment of the complaint, and that the trial court failed to make adequate findings of fact.²

II.

We first address Emerine's substantive allegation, for our discussion of it will inform resolution of the remaining procedural issues. As we understand it, Emerine's contention is that Yancey alleged an "express" contract with ICI regarding the accounting services when in his complaint he alluded to "an agreement entered into in 1989." Emerine was not a party to the 1989 agreement. Instead, the court held him to be liable on the basis of an agreement made in February 1990, at least some of the terms of which were "implied." Citing C.B. Snyder Realty Co. v. National Newark & Essex Banking Co., 14 N.J. 146, 101 A.2d 544 (1953), Emerine contends that the existence of the "express" contract precludes reliance by Yancey on an "implied" contract. We do not agree.

In C.B. Snyder Realty, the New Jersey Supreme Court said,

Having pleaded an express contract, the plaintiff cannot without showing a rescission, recover on a quasi contract. It is a well settled rule that an express contract excludes an implied one. An implied contract cannot exist when there is an existing express contract about the identical subject. The parties are bound by their agreement, and there is no ground for implying a promise. It is only when the parties do not agree that the law interposes and raises a promise. When an express contract exists, there must be a rescission of it before the parties will be remitted to the contract which the law implies, in the absence of that agreement which they made for themselves.

Id. 101 A.2d at 553 (internal quotations and citations omitted).

We have no occasion to quarrel with the foregoing statement, for it does not apply to the circumstances in the present case. Emerine's confusion arises from a semantic difficulty: There are two very distinct theories of recovery that are both frequently denominated, "implied contract," or often, "quantum meruit." The first of those theories is the "implied-in-fact" contract. As we have observed before, "`an implied-in-fact contract is a true contract, containing all the necessary elements of a binding agreement; it differs from other contracts only in that it has not been committed to writing or stated orally in express terms, but rather is inferred from the conduct of the parties in the milieu in which they dealt.'" Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C.1993) (quoting Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 116, 479 F.2d 201, 208 (1973) (citing Roebling v. Anderson, 103 U.S.App.D.C. 237, 241, 257 F.2d 615, 619 (1958))). In fact, it might be said that written or oral statements of express terms are themselves merely "conduct of the parties"; hence, the distinction between a so-called express contract and one that is implied-in-fact is simply that a contract implied-in-fact will only be enforced where there has been partial execution of the terms of the agreement. See Vereen, supra, 623 A.2d at 1193 (stating that recovery under contract implied-in-fact requires proof of "valuable services being rendered"). Thus, we do not share Emerine's alarm at the trial judge's statement, "I do not find it necessary or helpful to engage in hair-splitting over what's expressed and what's implied." The trial judge was referring to a contract implied in fact.

The second type of "implied" contract, that is, a contract "implied-in-law," is not a contract at all, in the sense that the word "contract" is ordinarily understood. "Contract" imports a voluntary agreement to make an exchange. Rather, a contract implied-in-law, "more commonly known as a theory of unjust enrichment, ... is `a duty thrust under certain conditions upon one party to requite another in order to avoid the former's unjust enrichment.'" Vereen, supra, 623 A.2d at 1194 (quoting Bloomgarden, supra, 156 U.S.App.D.C. at 116, 479 F.2d at 208 (footnote omitted)). To recover on a theory of unjust enrichment, also known (unhelpfully) as "quasi-contract," the plaintiff "must show that the defendant was unjustly enriched at his expense and that the circumstances were such that in good conscience the defendant should make restitution." Id. We leave for another day whether there is any useful purpose in continuing the use of the term "contract" in connection with those two very different theories, which may have more to do with earlier judicial efforts to circumvent the limitations of the English common-law writ system — now abolished in this jurisdiction, Super.Ct.Civ.R. 2 — than with any substantive similarity.

In light of the foregoing, it is clear that C.B. Snyder Realty stands only for the well-established proposition that where the parties have a contract governing an aspect of the relation between themselves, a court will not displace the terms of that contract and impose some other duties not chosen by the parties. This is in accord with cases in this jurisdiction. See Wilderness Soc'y v. Cohen, 267 A.2d 820, 822 (D.C.1970) ("Recovery under a theory of ... unjust enrichment ... is not available to plaintiffs, because forfeiture of the plaintiffs' deposit with defendant was expressly covered by the contract terms."); Kilian v. Better Boxes, 121 A.2d 726, 728 (D.C.1956) (holding that where a prior agreement fixed the salary of the plaintiff, plaintiff could not seek to recover for his services on a theory of unjust enrichment).

The present case, however, was not decided against Emerine on a theory of unjust enrichment. Instead, the trial court found that Emerine had expressly agreed in February 1990 to pay for the work Yancey performed. To the extent that any term was implied from their conduct, it was only that which related to Yancey's hourly fee. Under the circumstances of the transaction, it was not unreasonable for the judge to imply as a matter of fact that the parties agreed to Yancey's usual hourly rate. Therefore, we reject Emerine's substantive challenge to the judgment.

III.

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