De Met v. Zeman
De Met v. Zeman
Opinion of the Court
By the Court,
Respondents, a firm of accountants, obtained the following judgment against appellant Peter De Met and others:
“ORDERED, ADJUDGED AND DECREED that the plaintiffs recover judgment against PETER De MET, LOUIS LARAMORE, HAROLD V. CLARK and J. A. DONNELLEY, as Executors of the Estate of WILBUR I. CLARK, deceased, a partnership, d/b/a C. D. L., NEVADA, and PETER De MET, individually, in the sum of $52,516.16, interest in the sum of $15,483.64, and costs taxed in the amount of $304.65.”
The evidence does not support the judgment, under any construction of such pleadings as are now before the court; thus, we need not decide whether the lower court, having allowed respondents to amend their Complaint on the morning of the trial, erred in refusing to continue the trial so that appellant might plead anew. We reverse and remand the cause, with instructions to allow appellant to raise, by appropriate pleadings and procedures, any and all defenses he may have to the Complaint as amended.
For some time prior to December 31, 1961, Wilbur I. Clark, now deceased, appellant Peter De Met, and one Louis Lara-more, did business as “Clark, De Met and Laramore,” which they styled a “joint venture.” As of January 1, 1962, they commenced doing business as “C. D. L., Nevada,” which they styled a “partnership.” In 1962, respondents commenced doing accounting work for “C. D. L., Nevada,” and for various corporations in which Wilbur I. Clark, Peter De Met, and Louis Laramore were interested, one being World Wide Construction Co., Inc. These entities had interrelated business interests; World Wide Construction Co., Inc. held the contractor’s license used in their endeavors, and apparently was the entity through which business bills were commonly paid; respondents allocated these bills to the other entities through accounting procedures. Such money as respondents were paid for their services was on a statement for $4,675, dated June 1, 1963, submitted to and paid by World Wide Construction Co., Inc.
After Wilbur Clark’s death, respondents filed a creditor’s claim with his estate, and on July 20, 1967, commenced the instant action against “Peter De Met, Louis Laramore, and J. A. Donnelley and Harold V. Clark as Executors of the Estate of Wilbur I. Clark, deceased, a partnership d/b/a Clark, De Met and Laramore.” (Emphasis added.) The “First Claim” of this Complaint alleged that “[w]ithin the past four (4) years,” defendants had become indebted to plaintiffs in the sum of $52,285 as the reasonable value of accounting services rendered. The “Second Claim” alleged that “[wjithin the past four (4) years at Los Angeles, California, an account was stated in writing by and between Plaintiffs and Defendants wherein it was agreed that Defendants were indebted to Plaintiffs” in this sum. The “Third Claim” alleged that the services in question had been rendered “on an open book account.” The “Fourth Claim” alleged that “[wjithin the past two (2) years,” defendants had become indebted to plaintiffs in the sum of $276.16 “for money paid, laid out and expended for Defendants at their request.” The Complaint alleged neither the nature of the services, nor the dates they were performed. It neither suggested that respondents might claim compensation from Peter De Met for services rendered to corporations in which he had been interested along with Wilbur I. Clark and Louis Laramore, nor that they sought payment from De Met for services rendered to Clark and Laramore after De Met
By serving J. A. Donnelley with a writ of attachment, respondents purportedly attached moneys due De Met upon a judgment against the Estate of Wilbur I. Clark, evidently owing to appellant as settlement of his mutual interests with Clark; however, although respondents’ counsel apparently recognized the need to make Clark’s estate a party to the action, they did not serve Donnelley with the summons and Complaint. Instead, they only sought quasi in rem jurisdiction over De Met, who was in Florida, by publication of the summons. In due course, he filed an Answer, denying all allegations of the Complaint, and alleging no Counterclaim.
On the morning this action was to be tried, by motion filed the previous day, respondents asked to amend the caption and body of their Complaint to name defendants as: “PETER De MET, LOUIS LARAMORE, and J. A. DONNELLEY and HAROLD V. CLARK, as Executors of the Estate of WILBUR I. CLARK, deceased, a partnership d/b/a C. D. L., NEVADA.” (Emphasis added.) Appellant’s counsel objected, and also moved the court for time to plead to the Complaint as amended, should amendment be permitted. The lower court permitted the amendment, but denied appellant time to plead. The trial proceeded; the lower court allowed respondents to adduce proof of work done for C. D. L., Nevada, and for the other entities in which its principals had been interested, including work done after De Met’s withdrawal from their affairs. Judgment was entered for the total amount of this work.
1. Even if respondents’ Complaint, as amended, be construed to claim recovery from De Met for services rendered to all the various entities in which “C. D. L., Nevada” and its principals were interested, the Complaint still sought payment only for services rendered within four years from the date it was filed, i.e. July 20, 1967. Evidence of charges prior to the
2. From the testimony of respondents’ witnesses, it appears respondents rendered their statements “at two week billing periods,” entering the amounts billed in red on their books of account. Thus, it was erroneous for the lower court to allow interest on what respondents themselves alleged to be, and what evidently was, an “open book account.” NRS 99.040(1); Flannery v. Anderson, 4 Nev. 437 (1868); cf. Checker, Inc. v. Zernan, 86 Nev. 216, 467 P.2d 100 (1970).
3. Appellant contends the lower court erroneously denied him time to plead to respondents’ Complaint as amended, and that he might have plead various defenses, as well as claiming over against Louis Laramore and the estate of Wilbur I.
The judgment is reversed, and the cause is remanded for proceedings in conformity with this Opinion.
NRCP Rule 13(a) requires that certain claims be stated as counterclaims, but provides, among other things, that the pleader need not state such claims if “the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.” (Emphasis added.) The effect of this rule upon jurisdictional issues raised by appellant has not been briefed for the benefit of this court.
Respondents’ Exhibit 8, a recapitulation of respondents’ account of work done for all entities, reflects billings for some $17,076.50 worth of services between July 20, 1963, and the beginning of May, 1964. If services through the end of May, 1964, are included, the total is some $22,789.50. Thus, even if we could resolve in respondents’ favor all other issues raised by the parties, we could not adjust the parties’ rights without remanding the cause, for the right to more than $5,000 would remain in serious question. Appellant contends that the most respondents may recover from him is some $3,000, because our statute of frauds, NRS 111.220, declares void “every special promise to answer for the debt, default or miscarriage of another,” unless the same be in writing. The statute of frauds is an affirmative defense, NRCP 8(c), which it will be necessary for appellant to plead, and the applicability of which we do not decide.
For example, appellant apparently contends that in a quasi in rem action, the court has only such jurisdiction as it obtains through attachment of a defendant’s property, that in this State a debt due from an estate may not be garnished or attached in the hands of an executor or administrator [Howard’s Estate, 48 Nev. 100, 227 P. 1016 (1924)], and that therefore the court lacked jurisdiction over the subject matter of the action. If so, if some statute of limitations bars the claims now stated, if the statute of frauds is applicable to them, or if respondents’ failure to proceed against appellant’s former partners affords him a defense or right of abatement, we see no reason why such defenses may not be tendered by pleadings framed for the purpose. Similarly, if appellant is entitled to indemnity against respondents’ claims by virtue of an agreement with his former partners, or to contribution from them, these rights may be asserted against his co-defendants by cross claim. NRCP 13(g). In like manner, our rules afford respondents opportunities to avoid the burden of litigating any insufficient defense, e.g.: NRCP 8(d), 12(f), 56.
Reference
- Full Case Name
- PETER De MET v. I. MILTON ZEMAN, SAWYER A. TULLER, ELI BOYER, DAVID GOLDBERG, ALLAN LANDMAN, CHARLES CHAZEN, DAVID A. MESSING, REUBEN D. GRUBER, ARNOLD L. LIPKIN, DANIEL LEM-BARK, and HOWARD W. BROTMAN, a Partnership dba ZEMAN, TULLER, BOYER & GOLDBERG
- Status
- Published