Hudson v. Ashley

• Decision Date: 17 January 1980
• Docket Number: No. 12139.,12139.
• Citation: 411 A.2d 963
• Parties: James L. HUDSON et al., Appellants, v. Hampton ASHLEY, Appellee.
• Court: D.C. Court of Appeals

411 A.2d 963

James L. HUDSON et al., Appellants, v. Hampton ASHLEY, Appellee.

No. 12139.

District of Columbia Court of Appeals.

Argued January 5, 1978.

Decided January 17, 1980.

COPYRIGHT MATERIAL OMITTED

Bruce A. Frederickson, Washington, D. C., with whom Willie L. Leftwich and Richard A. Penna, Washington, D. C., were on the brief, for appellants.

Peter Larsen, Washington, D. C., for appellee.

Before GALLAGHER and MACK, Associate Judges, and FAUNTLEROY, Associate Judge, Superior Court of the District of Columbia.^*

GALLAGHER, Associate Judge:

This is an appeal from a directed verdict entered upon plaintiff's opening statement. Suit was brought on behalf of a law firm against appellee and his son¹ to collect a fee for legal services rendered the son upon appellee's request and promise to pay. Appellant² alleged in his complaint that both parties were liable to him, although he failed to state any legal or factual grounds for the son's liability. A default was entered against the son for failure to appear at the pretrial hearing. Appellant made an opening statement in which he referred to the son's default. Appellee thereupon moved for a directed verdict on the ground that the opening statement showed that appellee's promise was an oral promise to answer for his son's debt and thus was unenforceable under the statute of frauds.³ The trial court agreed, ruling that appellant's allegation of liability against the son, plus the son's default, established as a matter of law that appellee's promise was "a promise to pay the debt of another." Verdict was directed in appellee's favor after the opening statement because a default had been entered against the son. No evidence was heard. We reverse and remand the case for a trial on the merits.

I.

Appellant's complaint and pretrial statement asserted that appellee's son was presented in the Superior Court on felony charges of assault with intent to kill and commission of a crime while armed; and that the night before presentment, while his son was incarcerated on these charges, appellee retained appellant's law firm to represent his son. It was further alleged that appellee stated "he would stand personally responsible for all fees incurred as a result of such services." The law firm assertedly agreed to the arrangement, represented the son at the presentment and preliminary hearing, and negotiated a plea with the United States Attorney's Office of guilty to the lesser included offense of carrying a pistol without a license. As a result of this representation the felony charges were dropped, the plea was accepted by the court, and the son was sentenced to six months' unsupervised probation. Thereafter, the father and son allegedly were repeatedly billed and failed to pay, whereupon this suit was brought. The complaint and pretrial statement claimed that both parties were liable in the amount of $2,079.75 plus interest and costs.

At pretrial conference, the son did not appear and a default was entered. While the dissent states a default judgment in the amount of $2,284 was entered for failure to appear at the pretrial hearing, the entry of such a judgment does not appear in the record. The actuality is that an answer having been filed by the son (Eric Ashley), a default judgment, as distinguished from a default, could not have properly been entered against him unless the procedure required by Super.Ct.Civ.R. 55(b)(2) was followed.⁴ (See note 10, infra.) This procedure was not followed.

At trial, appellant made an opening statement in which he referred summarily to the allegations of the complaint and asserted that the evidence would show that the firm "accepted the representation of the son on behalf of Mr. Hampton Ashley," the father. At the close of the opening statement appellee moved for directed verdict contending the agreement was within the statute of frauds and there was no written agreement as required. A colloquy followed between the court and counsel out of the jury's presence during which appellant proffered to the court that the evidence would probably tend to show that when the contract was entered into no one at the law firm knew the son or would ordinarily agree to represent a young, twenty-two-year-old individual in such a matter without promise of payment from another party. The trial court directed a verdict for appellee. In so doing, the court stated:

Your opening statement indicates that you did consider that credit was given and that liability attached to [the son] because you sued him and got a judgment against him. Therefore, you see, the reasoning behind that, I assume, is that under those circumstances that makes it a promise to pay the debt of another.

* * * * * *

You say in the first count that, "[the son] owes plaintiffs $2,079.75 for services. Plaintiffs have made repeated demands on [the son]." You say that [appellee] would be personally responsible. Responsible for what? For [his son's] fees.

The court will have to grant the motion.

II.

Appellant does not challenge the trial court's inherent power to direct a verdict at the close of an opening statement, nor could he in light of Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882 (1934). Accord, Cook v. Safeway Stores, Inc., D.C.App., 354 A.2d 507, 508 (1976). The conditions under which a directed verdict upon an opening statement will be appropriate, however, are quite limited. The trial court first must interpret the opening statement in light of the pleadings and the oral proffers made to the court. E. g., Niosi v. Aiello, D.C.Mun.App., 69 A.2d 57, 59, 61 (1949); McGovern v. Hitt, 62 App.D.C. 33, 34, 64 F.2d 156, 157, cert. denied, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554 (1933); see also Jones v. Baltimore & Ohio Railroad, 5 Mackey (16 D.C.) 8, 10, 13-14 (1885). Then, after all doubts and uncertainties are resolved in the plaintiff's favor, "it must clearly appear . . . that no cause of action exists." Best v. District of Columbia, supra, 291 U.S. at 415-16, 54 S.Ct. at 489. As this court has stated:

Unless the facts and all inferences which may be drawn from them are clear beyond any doubt, the parties are entitled to develop their evidence by testimony and to have the case submitted to the jury under proper instructions. [Slater v. Berlin, D.C.Mun.App., 83 A.2d 228, 229 (1951).]

Viewing appellant's allegations in their proper light, and applying that test to this case, we conclude the trial court failed to resolve all doubts in appellant's favor in ruling on appellee's motion for a directed verdict. There were factual questions to be resolved.

"The distinction between a promise to answer for the debt or default of another person, which is within the Statute [of Frauds], and an independent obligation of the promisor, which is without the Statute, is admittedly difficult."⁵ Conflict of authority exists in relation to it. "A contract is not brought within the Statute of Frauds merely because someone other than the promisor received the benefit of the consideration. 2 Williston on Contracts (Rev.Ed.), Sec. 464." Kerner v. Eastern Dispensary & Casualty Hospital, 214 Md. 375, 380, 135 A.2d 303, 305-06 (1957). A simple test to determine whether an undertaking was original or collateral, and hence must be in writing, is to ascertain to whom was the credit given for the services rendered. Id. at 382, 135 A.2d at 306-07. This test is usually a mixed question of law and fact; and the facts that are determinative usually make the issue a question for the jury. Id.⁶ Even where there is a promise to answer for the debt of another, it may be enforceable notwithstanding the Statute of Frauds if the "leading object" of the promisor was to obtain a direct, personal benefit. Pravel, Wilson & Matthews v. Voss, 471 F.2d 1186, 1189 (5th Cir. 1973).

The pivotal issue in this case is whether the promise to pay the law firm, if made, was original and independent or merely a collateral promise to answer for the debt of the son. Even if it were found to be collateral, the question would remain whether it falls within the "leading object" exception, to which we have adverted.

The applicable test is whether at the time the promise was made the parties intended that credit would be extended solely to the promisor, or to both the promisor and the party who was to receive the services. See Kerner v. Eastern Dispensary & Casualty Hospital, supra, 214 Md. at 382, 135 A.2d at 306-07; City of Highland Park v. Grant-MacKenzie Co., 366 Mich. 430, 444-448, 115 N.W.2d 270, 277-78 (1962). This intention is ascertained from the promissory words used, the situation of the parties, and all surrounding circumstances when the promise was made. Id. The determinative questions are essentially ones of fact. Plourd v. Scroggs, 10 Ariz.App. 409, 459 P.2d 326, 328 (1969); Romney Produce Co. v. Edwards, 9 Ariz.App. 258, 259-260, 451 P.2d 338, 339-40 (1969). Moreover, "in most cases the [determinative] facts . . . are sufficiently in doubt to make this mixed issue a question for the jury." 2 Corbin on Contracts § 352, at 228 (1950).

Appellant had asserted in his opening statement, pleadings,⁷ and oral proffers,⁸ facts from which a jury might have inferred an original promise to pay for the legal representation of the son, with credit extended only to the father.⁹ See Pravel, Wilson & Matthews v. Voss, supra; Hogan v. Colley, 227 Ala. 505, 150 So. 501 (1933); Plourd v. Scroggs, supra; Kerner v. Eastern Dispensary & Casualty Hospital, supra. The fact that appellant's firm billed the son did not preclude a jury finding of an original promise, since billing is only "a circumstance to be considered [by the finder of fact] in determining whether credit was extended exclusively to [the promisor]." Romney Produce Co. v. Edwards, supra 9 Ariz.App. at 260, 451 P.2d at 340.

The Superior Court rules specifically permit a plaintiff to plead separate claims "regardless of consistency" and to plead a claim ...