Tracy v. Tracy

• Decision Date: 09 June 1998
• Docket Number: A-97-190,Nos. A-97-189,s. A-97-189
• Citation: 581 N.W.2d 96,7 Neb.App. 143
• Parties: Wesley TRACY, Appellee and Cross-Appellant, v. Lloyd TRACY, Doing Business as Tracy Enterprises, Appellant and Cross-Appellee. Richard TRACY, Appellee and Cross-Appellant. v. Lloyd TRACY, Doing Business as Tracy Enterprises, Appellant and Cross-Appellee.
• Court: Nebraska Court of Appeals

Page 96

581 N.W.2d 96

7 Neb.App. 143

Wesley TRACY, Appellee and Cross-Appellant, v. Lloyd TRACY, Doing Business as Tracy Enterprises, Appellant and Cross-Appellee.

Richard TRACY, Appellee and Cross-Appellant. v. Lloyd TRACY, Doing Business as Tracy Enterprises, Appellant and Cross-Appellee.

Nos. A-97-189, A-97-190.

Court of Appeals of Nebraska.

June 9, 1998.

Syllabus by the Court

1. Contracts: Quantum Meruit. The theory of quantum meruit is premised on the existence of a contract implied by law.

2. Contracts. An action sounding in contract is an action at law.

3. Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

4. Trial: Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

5. Judgments: Appeal and Error. When reviewing a judgment awarded in a bench trial, an appellate court does not reweigh the evidence, but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

6. Contracts: Quantum Meruit: Unjust Enrichment. Generally, the principle of quantum meruit is a contract implied in law theory of recovery based on the equitable doctrine that one will not be allowed to profit or enrich oneself unjustly at the expense of another.

7. Unjust Enrichment. The issue of unjust enrichment is a question of fact.

8. Unjust Enrichment. Where benefits have been received and retained under circumstances that it would be inequitable and unconscionable to permit the party receiving them to avoid payment therefor, the law requires the recipient to pay the reasonable value of the services.

9. Contracts: Parties. To give rise to an implied contract to pay, services must have been rendered in expectation that the other party would pay. In turn, the other party must have accepted the services with knowledge of that expectation.

10. Contracts: Presumptions. A promise to pay for services rendered by one member of a family and accepted by another member of a family will not be implied from the mere rendition of services. If a family relationship exists between them, there is a presumption that the services were rendered gratuitously.

11. Contracts. The rule of gratuitous services between family members does not apply where the services performed are of a business nature, which services are not usually performed without remuneration.

12. Actions: Quantum Meruit. An action based on quantum meruit for labor and materials provided is grounded on an implied promise to pay the reasonable value thereof.

13. Actions: Quantum Meruit: Value of Goods: Proof. There is no specific standard by which the reasonable value of labor and materials furnished shall be proved. The trier of fact may consider all reasonable inferences of value that flow from the evidence adduced.

14. Employer and Employee: Wages: Attorney Fees. If an employee having a claim for wages secures judgment on a claim for wages, the employee is entitled to recover the full amount of the judgment, costs, and an attorney fee that shall not be less than 25 percent of the unpaid wages, and if the nonpayment of wages is willful, an amount equal to two times the amount of unpaid wages shall be recovered from the employer.

Earl D. Ahlschwede, of Mayer, Burns & Ahlschwede, Grand Island, for appellant.

Michael J. Murphy, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellee.

MILLER-LERMAN, C.J., and HANNON and IRWIN, JJ.

IRWIN, Judge.

I. INTRODUCTION

Wesley Tracy and Richard Tracy each filed a lawsuit in the district court for York County in which each claimed that Lloyd Tracy, doing business as Tracy Enterprises, owed him money for services rendered. After a bench trial on the consolidated cases, the district court entered judgments in favor of Wesley in the amount of $15,288 and in favor of Richard in the amount of $1,992. Lloyd appeals the judgments. Wesley and Richard cross-appeal. For the reasons stated below, we affirm in part, and in part, we reverse, and remand.

II. FACTUAL BACKGROUND

Tracy Enterprises is a garbage collection business solely owned by Lloyd. Prior to April 1992, Tracy Enterprises collected garbage mainly in York County and the surrounding area.

Lloyd's twin brother, Wesley, also had a garbage collection business which he operated in Hebron, Nebraska. In 1991, Wesley sold his business to The Garbage Company. Wesley remained employed with The Garbage Company until March 1, 1992. Beginning on March 16, Wesley began working full time for Lloyd. He also did business as Tracy Disposal doing odd jobs.

In April 1992, Tracy Enterprises began to collect garbage in Fillmore and Thayer Counties, which is the general area where Wesley operated his business before he sold it. The parties refer to this expansion as the "south route." Lloyd and Wesley agreed that Wesley would service the south route. At trial, the brothers disagreed whether it was Lloyd's or Wesley's idea to start the south route.

From March 16 until approximately October 16, 1992, Wesley worked for Lloyd. He collected garbage, performed mechanical work on Lloyd's equipment, and provided welding services. Wesley testified that he worked 6 days per week for a total of 1,960 hours. Wesley testified as to the hours he worked and the type of work performed. Wesley also provided his opinion as to the value of his services.

Richard, who is Wesley's son and Lloyd's nephew, was in high school during 1992. He claimed that he also worked for Lloyd from March 16 to approximately October 16, 1992. According to Richard and Wesley, Richard helped Wesley on the south route on Saturdays and before school on Tuesdays during the school year and helped Wesley daily in the summer months. According to Richard and Wesley, Lloyd was aware that Richard was helping Wesley with the south route and had authorized it. Richard testified that at times, Lloyd would tell him not to work on the route anymore because of concerns regarding child labor violations. However, according to Richard, Lloyd would then tell him to continue working. Richard testified that he worked for Lloyd approximately 380 hours. Richard testified as to the value of his services. Lloyd testified that Richard's only job was to deliver dumpsters and that Lloyd had told Wesley and Richard that Richard was not to collect garbage.

The testimony was as follows regarding compensation: Lloyd had paid Wesley and Richard in the past for their services. In the past, Wesley and Lloyd had also traded services. Wesley testified that he had numerous conversations with Lloyd after March 16, 1992, regarding wages for the work performed from March 16 to October 16. According to Wesley, Lloyd told him that "he would just take care of us." Wesley understood this to mean that Lloyd would pay them. Wesley admitted that at one point after March 16 Lloyd told him that Lloyd could not pay him $100 per day as he had in the past.

According to Lloyd's evidence, he and Wesley agreed that Lloyd would provide the equipment and cover the expenses for the south route, that Wesley would service the south route, and that Wesley could purchase the route at any time from Lloyd by purchasing the equipment. Lloyd testified that Wesley's compensation for servicing the route was that he could use Lloyd's equipment at no cost to do cleanups and other intermittent work and keep all money earned as a result.

After making demand for payment, Wesley and Richard each initiated a lawsuit against Lloyd. Wesley sought recovery based alternatively on the principle of quantum meruit or under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1988 & Supp. III 1991). Richard sought recovery based on the principle of quantum meruit. Both sought additional damages under the Wage Payment and Collection Act, Neb.Rev.Stat. § 48-1228 et seq. (Reissue 1988 & Cum.Supp.1992). Lloyd generally denied the allegations in the petitions and alleged that there was no agreement for payment.

The cases were consolidated for trial. The trial commenced on September 8, 1995, before Judge Bryce Bartu. The trial continued on November 13, 1996, before Judge Michael Owens, at which time the parties stipulated that the bill of exceptions from September 8, 1995, be submitted to the court. Additional evidence was also received.

Based on the evidence, the district court concluded that there was no dispute that a substantial amount of work was performed by Wesley and Richard on Lloyd's behalf and that given the nature of the work performed, Wesley and Richard had rebutted the presumption that the services were provided gratuitously. The district court further concluded that the principle of quantum meruit required that Lloyd pay the reasonable value of the services provided, that the reasonable value of the services provided by Wesley was $15,288, and that the reasonable value of the services provided by Richard was $1,992. The district court also held that the Fair Labor Standards Act did not apply in Wesley's case and the Wage Payment and Collection Act did not apply in both cases because Wesley and Richard were not "employee[s]" as contemplated by the acts. The court entered judgment accordingly. This appeal timely followed.

III. ASSIGNMENTS OF ERROR

Lloyd assigns and argues that the district court erred in concluding that Richard and Wesley were entitled to recovery based on the principle of quantum meruit, that Richard and Wesley had rebutted a presumption that they had provided their services gratuitously, and that damages were sufficiently proved.

Richard and Wesley cross-appeal, claiming that the district court erred in not applying the Wage Payment and Collection Act.

IV. ANALYSIS

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