Forbes Homes, Inc. v. Trimpi

• Decision Date: 04 November 1986
• Docket Number: No. 326A86,326A86
• Citation: 318 N.C. 473,349 S.E.2d 852
• Court: North Carolina Supreme Court
• Parties: FORBES HOMES, INC., a North Carolina Corporation v. John G. TRIMPI and Trimpi, Thompson & Nash.

Page 852

349 S.E.2d 852

318 N.C. 473

FORBES HOMES, INC., a North Carolina Corporation v. John G. TRIMPI and Trimpi, Thompson & Nash.

No. 326A86.

Supreme Court of North Carolina.

Nov. 4, 1986.

Frank B. Aycock, Jr., Currituck, for plaintiff-appellee.

Trimpi, Thompson & Nash by John G. Trimpi and Thomas P. Nash, IV, Elizabeth City, for defendants-appellants.

BILLINGS, Chief Justice.

The plaintiff seeks to recover from the defendants the sum of $4,192.92 plus interest which it allegedly paid to Midland-Guardian Company on a debt owed by the defendants' client, Milford Simpson, and secured by a mobile home which the plaintiff had sold to Mr. Simpson.

The facts, which essentially are not disputed, are that in 1979 Mr. Simpson became delinquent in his payments on the mobile home because he had been injured in an automobile accident and was unable to work. The plaintiff's president and general manager, Mr. Cole, had a conversation with defendant John G. Trimpi, who was representing Mr. Simpson in pursuing a personal injury action. Following the conversation, Mr. Trimpi wrote Mr. Cole a letter on 8 June 1979 which contained the following:

Confirming our telephone conversation on June 7, 1979, it is our understanding that you will continue to make payments on the mobile home obligation of Milford Simpson in return for Mr. Simpson's assurance that you will be reimbursed in full for the payments you have made or will make to satisfy the creditor.

Subject to Mr. Simpson's approval, which I feel certain he will give, this firm will make restitution to you out of the net proceeds from any settlement or court recovery we make with regard to Mr. Simpson's personal injury claim arising out of an accident occurring on March 17, 1979. If you do not hear from us within ten days from receipt of this letter, you may assume that Mr. Simpson has given us the authority to make such payment to you.

In early 1981 Mr. Simpson received $3,328.03 in back Social Security disability payments and began receiving monthly Social Security disability payments effective 1 January 1981. In June 1982 Mr. Trimpi obtained $8,500.00 in settlement of Mr. Simpson's personal injury claim and, acting upon instructions from Mr. Simpson, gave Mr. Simpson a check for $5,039.76, having deducted his fee and costs from the settlement amount. Neither Mr. Trimpi nor Mr. Simpson notified the plaintiff of the settlement, and the plaintiff was not reimbursed for the payments it had made on behalf of Mr. Simpson.

When the plaintiff learned that the settlement had been made, Mr. Cole demanded that Mr. Trimpi reimburse the plaintiff, which Mr. Trimpi refused to do. The plaintiff paid off the remaining debt on the mobile home and, acting pursuant to its recourse rights under the financing arrangement with Midland-Guardian and Mr. Simpson, initiated claim and delivery proceedings against Mr. Simpson to repossess the mobile home. Upon discovering that Mr. Simpson was facing hospitalization and was in extremely poor health, the plaintiff elected not to repossess the mobile home. Instead, it allowed Mr. Simpson to retain the mobile home upon his execution of a new note in the principle amount of $5,521.00. The original note was marked paid.

The plaintiff instituted this action seeking to recover from the defendants the sum of $4,783.67, representing payments of $4,192.92 made on Mr. Simpson's behalf plus $564.85 in interest.

The defendants' motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) was allowed, and in an appeal from the dismissal, the Court of Appeals reversed. 70 N.C.App. 614, 320 S.E.2d 328. The defendants appealed to this Court and the reversal was affirmed per curiam by an equally divided Court. 313 N.C. 168, 326 S.E.2d 30. Because the Court of Appeals' decision was affirmed per curiam without opinion by this Court, the opinion of the majority of the Court of Appeals became the law of the case. That opinion contained the following:

The plaintiff has alleged facts which if offered in evidence would allow a jury to find the defendants promised the plaintiff that if the plaintiff would make certain payments for a third party, the defendants would retain from the proceeds of a claim they were handling for the third party funds with which they would reimburse the plaintiff. The plaintiff accepted this offer by making the payments and the defendants have refused to reimburse the plaintiff from the proceeds of the settlement for the third party. If a jury should find these facts, the defendant would be liable to the plaintiff for breach of contract.

70 N.C.App. at 615, 320 S.E.2d at 328-29.

On remand to the District Court of Pasquotank County, the parties waived jury trial and evidence was presented to the trial judge, who entered judgment for the defendants. The judgment contained the following pertinent findings of fact which were supported by the evidence:

5. That defendant Trimpi communicated with plaintiff concerning Mr. Simpson's financial inability to keep current with the payments due plaintiff, and defendant Trimpi requested plaintiff to continue making payments on Simpson's mobile home obligation in return for Simpson's assurance that plaintiff would be reimbursed in full out of the net proceeds from any settlement or court recovery. [Emphasis added.]

....

7. ... That defendant Trimpi's representation of Simpson was solely in a representative capacity as attorney for Simpson.

8. That based upon the totality of the circumstances the Court finds that there was no meeting of the minds of plaintiff and defendant Trimpi that defendant Trimpi would be personally responsible for Simpson's debt, nor did defendant Trimpi receive any benefit or good and sufficient consideration to support his or his firm's personal obligation and responsibility to stand for the debt of Simpson.

9. That the attorney-client relationship existing between defendant Trimpi and Simpson was known to plaintiff, and plaintiff knew that defendant Trimpi and his firm were acting on behalf of Simpson in promising to make reimbursement to plaintiff out of the net recovery. However, that Simpson instructed defendant Trimpi not to pay any of his creditors out of the settlement proceeds when settlement was effected on June 1, 1982. That defendant Trimpi was told by Simpson to disburse the net proceeds to Simpson so that he, Simpson, could deposit same in an Elizabeth City bank and pay creditors himself.

....

11. That the Court deems it unnecessary to make any findings of fact or conclusions of law concerning the uncontroverted facts that subsequently plaintiff repossessed the mobile home and sold it back to Simpson under a bill of sale in the amount of $5,000.00, nor does the Court determine the extent of any credit which should be given to defendants inasmuch as the Court finds there to be no valid, enforceable contract between the parties affixing personal liability to defendants.

From the judgment for the defendants, the plaintiff appealed again to the Court of Appeals. In an opinion by Wells, J., the Court of Appeals reversed, saying:

The trial court's findings, supported by the evidence,...