                           NO. COA14-147

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 15 July 2014


ROBERT F. LEWIS,

    Plaintiff,

    v.                              Guilford County
                                    No. 12 CVS 11507
LEWIS LESTER,

    Defendant.


    Appeal by plaintiff from judgment entered on 6 August 2013

by Judge Richard L. Doughton in Guilford County Superior Court.

Heard in the Court of Appeals 19 May 2014.


    OERTEL, KOONTS & OERTEL, PLLC, by Geoffrey K. Oertel for
    plaintiff-appellant.

    BENSON, BROWN & FAUCHER, PLLC, by James R. Faucher for
    defendant-appellee.


    STEELMAN, Judge.


    Where the plaintiff failed to demonstrate that there was

consideration supporting an alleged oral agreement, the trial

court properly granted summary judgment for defendant. Where the

property in decedent’s estate included both real and personal

property, the statute of frauds required the alleged agreement
                                            -2-
to be in writing. This is a separate and independent basis for

affirming the ruling of the trial court.

                     I. Factual and Procedural Background

       Robert F. Lewis (plaintiff) and Lewis T. Lester (defendant)

are the nephews of Floyd H. Lewis (Lewis). On 1 September 2006,

plaintiff     and     defendant      were     both    designated      as    power    of

attorney for Lewis. Plaintiff and defendant discovered Lewis’

will    in   January     of   2007,        learning    that   plaintiff       was    not

included as a beneficiary in the will. The will provided that

all    of    Lewis’    real    and     personal       property     was     devised    to

defendant      and     his    sister.       Lewis     died    in    December     2011.

Defendant’s sister predeceased Lewis, resulting in the entire

estate passing to defendant.

       In his complaint, plaintiff alleged that in September 2006,

the parties made an oral agreement regarding the property of

their uncle. Defendant allegedly agreed to split Lewis’ estate

equally with plaintiff in exchange for plaintiff acting as power

of    attorney   for     Lewis.      The    complaint    also      states    that    the

parties were aware of the contents of Lewis’ will at the time of

this agreement.

       However, in his deposition, plaintiff admitted that he did

not become aware of the contents of the will until January 2007,
                                         -3-
some    four    months    after    the     alleged   agreement     took      place.

Plaintiff further stated in his deposition that he would have

acted    as    his   uncle’s     power    of   attorney    regardless        of    any

agreement he made with defendant.

       The Power of Attorney allowed defendant and plaintiff to

each act independently as power of attorney for Lewis. Before

Lewis’ death, defendant used his authority as power of attorney

to change the beneficiary on several of Lewis’ bank accounts

from his deceased sister to plaintiff. As a result of those

actions,      plaintiff      received    approximately    $204,000      of    Lewis’

property.

       In   April    2012,    plaintiff    learned   of   an   additional         bank

account in Lewis’ name at First Citizens Bank in the amount of

$84,000. Defendant refused to split the proceeds of the account

with    plaintiff.     Plaintiff    commenced     this    action   by    filing      a

complaint on 5 October 2012, seeking to enforce the alleged oral

agreement.

       Plaintiff sought to recover one-half of the assets of

Lewis’ estate, which included real property. On 18 October 2012,

defendant filed an answer that contained a number of affirmative

defenses; including lack of consideration and statute of frauds.

On 17 July 2013, defendant filed a motion for summary judgment
                                  -4-
based upon the depositions of plaintiff, Brian Lewis, and

defendant.

    On 7 August 2013, Judge Doughton filed an order granting

summary judgment in favor of defendant.

    Plaintiff appeals.

                         II. Summary Judgment

    In his sole argument on appeal, plaintiff contends that the

trial court erred in granting defendant’s motion for summary

judgment. We disagree.

                         A. Standard of Review

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows 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.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649

S.E.2d 382, 385 (2007)).

                              B. Analysis

                       1. Lack of Consideration

    The essential elements of a valid, enforceable contract are

offer,   acceptance,   and   consideration.   Copy   Products,   Inc.   v.

Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983). When
                                     -5-
there is no genuine issue of material fact as to the lack of

consideration,        summary   judgment     is     appropriate.     See        Penn

Compression Moulding, Inc. v. Mar-Bal, Inc., 73 N.C. App. 291,

294, 326 S.E.2d 280, 283 (1985) (holding trial court should have

entered     summary     judgment   for     defendant     where     “undisputed”

evidence established that no new consideration was exchanged for

plaintiff's renewed promise to pay pre-existing debt). “A mere

promise,      without     more,    lacks     a      consideration         and    is

unenforceable.” Stonestreet v. S. Oil Co., 226 N.C. 261, 263, 37

S.E.2d 676, 677 (1946).

       In the instant case, plaintiff disavowed the theory set

forth in his complaint, that the consideration for the alleged

agreement was his agreement to serve as power of attorney, in

his   deposition      testimony.   Plaintiff      acknowledged     that    he    was

unaware of the contents of the will at the time he claims the

agreement was made, and that he would have acted as power of

attorney, and continued providing help to his uncle, regardless

of    any   agreement    with   defendant,       and   that   he   expected      no

compensation for acting as power of attorney.

       Plaintiff now attempts to assert that, “any obligation held

by Robert F. Lewis to act to benefit Floyd H. Lewis ended with

the death of Floyd H. Lewis. Thus, any actions taken following
                                                 -6-
the death of Floyd H. Lewis were taken at the detriment or loss

of Robert F. Lewis and are admissible evidence of the bargained

for legal detriment of the contract between the Defendant and

Plaintiff.” This argument is without merit because these actions

were not contemplated at the time the alleged agreement was made

and     therefore          cannot       constitute       consideration            for    that

agreement.

       Past     consideration           or    moral    obligation      is   not    adequate

consideration to support a contract. See Jones v. Winstead, 186

N.C. 536, 540, 120 S.E. 89, 90–91 (1923). Furthermore, “services

performed by one member of the family for another, within the

unity   of    the     family,       are      presumed   to   have    been     rendered     in

obedience       to    a    moral     obligation        and   without      expectation      of

compensation.” Allen v. Seay, 248 N.C. 321, 323, 103 S.E.2d 332,

333 (1958) (quoting Francis v. Francis, 223 N.C. 401, 402, 26

S.E.2d 907, 908 (1943)).

       This presumption can be rebutted by evidence that the party

rendering       the       services      reasonably      expected     compensation         for

those services. Penley v. Penley, 314 N.C. 1, 18, 332 S.E.2d 51,

61    (1985).    There       is    no     such    evidence    in    the     instant     case.

Plaintiff conceded that he would have acted as power of attorney
                                       -7-
and performed services for his uncle regardless of any agreement

with defendant, and expected no compensation.

    This argument is without merit.




                            2. Statute of Frauds

    The trial court’s order granting summary judgment does not

specify a basis for granting summary judgment. Plaintiff argued

against the application of the               statute of frauds before the

trial court on summary judgment, but on appeal fails to make any

argument pertaining to the statute of frauds. Defendant asserted

the affirmative defense of statute of frauds in his answer. This

constitutes     a   separate     and   independent   basis     supporting   the

trial court’s entry of summary judgment.

    “It is settled law in North Carolina that an oral contract

to convey or to devise real property is void by reason of the

statute of frauds (G.S. § 22-2). An indivisible oral contract to

devise   both       real   and    personal     property   is     also   void.”

Pickelsimer v. Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557,

559 (1962) (citing Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760

(1944)). Furthermore, “[u]pon a plea of the statute, it may not

be specifically enforced and no recovery of damages for the loss
                                     -8-
of the bargain can be predicated upon its breach.” Id. at 698,

127 S.E.2d at 560 (citing Daughtry v. Daughtry, 223 N.C. 528, 24

S.E.2d 446 (1943)).

    The alleged agreement between plaintiff and defendant was

to divide the assets of Lewis’ estate, which included both real

and personal property. Therefore, the agreement is unenforceable

because it was not in writing.

    We   hold   that   the   trial   court   did   not   err   in   granting

defendant’s motion for summary judgment.

    AFFIRMED.

    Chief Judge MARTIN and Judge DILLON concur.
