{ "id": 8527782, "name": "INSTITUTION FOOD HOUSE, INC. v. CIRCUS HALL OF CREAM, INC., d/b/a Circus Hall of Cream No. 5, and WAYNE'S ASSOCIATES, INC.", "name_abbreviation": "Institution Food House, Inc. v. Circus Hall of Cream, Inc.", "decision_date": "1992-10-06", "docket_number": "No. 9125DC752", "first_page": "552", "last_page": "559", "citations": [ { "type": "official", "cite": "107 N.C. App. 552" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "360 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358494 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0420-01" ] }, { "cite": "407 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "provision for award of attorney's fees \"not exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553520, 2555586, 2555572 ], "year": 1991, "pin_cites": [ { "parenthetical": "provision for award of attorney's fees \"not exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0506-02", "/nc/329/0506-01", "/nc/329/0506-03" ] }, { "cite": "402 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "provision for award of attorney's fees \"not exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance\"" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524608 ], "year": 1991, "pin_cites": [ { "parenthetical": "provision for award of attorney's fees \"not exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0458-01" ] }, { "cite": "389 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(2), where the attorney's fees provision provided for reasonable fees \"but not more than such attorney's usual hourly charges for time actually expended\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304621 ], "year": 1990, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(2), where the attorney's fees provision provided for reasonable fees \"but not more than such attorney's usual hourly charges for time actually expended\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0470-01" ] }, { "cite": "378 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528231 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0537-01" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(1), where the note provided that the attorney's fees provision was \"valid and enforceable up to but not in excess of fifteen percent\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757614, 4751602, 4754239, 4750583, 4751711 ], "year": 1984, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(1), where the note provided that the attorney's fees provision was \"valid and enforceable up to but not in excess of fifteen percent\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-01", "/nc/312/0621-05", "/nc/312/0621-03" ] }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(1), where the note provided that the attorney's fees provision was \"valid and enforceable up to but not in excess of fifteen percent\"" }, { "page": "656" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "award of attorney's fees under N.C. Gen. Stat. \u00a7 6-21.2(1), where the note provided that the attorney's fees provision was \"valid and enforceable up to but not in excess of fifteen percent\"" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] }, { "cite": "324 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "892" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527260 ], "year": 1985, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0591-01" ] }, { "cite": "221 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "289 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567883 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0260-01" ] }, { "cite": "254 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548873 ], "year": 1979, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0273-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1986, "pin_cites": [ { "page": "(5)" }, { "page": "(1)" }, { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 713, "char_count": 14730, "ocr_confidence": 0.784, "pagerank": { "raw": 1.354695736275253e-07, "percentile": 0.6342808016992496 }, "sha256": "f708de9cf548ba9a6548851dcfceee61589f8829c09e85347a73198607d7763d", "simhash": "1:a98864cbd913687c", "word_count": 2398 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Parker concur." ], "parties": [ "INSTITUTION FOOD HOUSE, INC. v. CIRCUS HALL OF CREAM, INC., d/b/a Circus Hall of Cream No. 5, and WAYNE\u2019S ASSOCIATES, INC." ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff initiated this suit on 15 November 1989, seeking to recover upon an account which plaintiff alleged one or both defendants owed plaintiff the sum of $25,075.15, plus interest at the maximum legal rate from 21 July 1988. Plaintiff further sought to enforce the Attorney\u2019s Fee Provision of the credit application pursuant to N.C. Gen. Stat. \u00a7 6-21.2(5) (1986).\nOn 1 February 1990, Defendant-Wayne\u2019s Associates, Inc., answered plaintiff\u2019s complaint, specifically denying that it had done any business at Circus Hall of Cream, located on Highway 64/70 in Hickory, North Carolina. Wayne\u2019s Associates asserted that it owed plaintiff nothing, and that it was a separate corporate entity. The trial court entered a judgment awarding plaintiff $25,075.15, plus interest from the filing of the action, and attorney\u2019s fees in the amount of $3,761.27. Defendant filed timely notice of appeal.\nPlaintiff-appellee, Institution Food House, Inc., is a wholesale distributor of groceries and related items to restaurants and institutions. On approximately 28 March 1984, plaintiff-appellee received an account authorization and credit application to open an account for Circus Hall of Cream #5, located on Highway 64/70, Hickory, North Carolina. The application provided that the bills should be sent to Circus Hall of Cream #5, c/o Wayne\u2019s Associates, P.O. Box 5035, Hickory, NC 28601.\nThe credit application provided spaces for corporate, partnership, or proprietorship status. The corporate box was checked, and the following information given:\nCorporation name and address:\nWayne\u2019s Associates, Inc., P. 0. Box 5035, Hickory, N.C. 28601 Officers\u2019 names and addresses:\nPresident \u2014 Wayne 0. Hall, 934 19th Ave. N.W., Hickory, N.C.\nVice President-Nan W. Hall, 934 19th Ave. N.W., Hickory, N.C.\nSecretary/Treasurer \u2014Nan W. Hall, 934 19th Ave., N.W., Hickory, N.C.\nAlso on the front page of the application was the following paragraph:\nI certify that this information is correct. The applicant shall be responsible for and shall reimburse IFH for all costs and expenses (including reasonable attorney\u2019s fees) incurred by IFH in connection with the collection of past due accounts. I understand the credit terms and will accordingly remit any balance due.\nAt the bottom of the page appeared the signature, \u201cNan W. Hall,\u201d situated on a line immediately above the words: \u201cAuthorized Signature (officer, partner, manager, etc.).\u201d\nThe back of the application indicated that the trade name used for registration with the Sales and Use Tax Division was Wayne\u2019s Associates, Inc. and that the owner was Wayne 0. Hall. The back was signed by Ms. Hall, who identified herself as the vice-president.\nWayne\u2019s Associates, Inc. was incorporated in 1968, with Wayne 0. Hall as its president and general manager. Mr. Hall has operated ice cream shops, called Circus Hall of Cream, and sold ice cream equipment through Wayne\u2019s Associates since 1968. From 1975 through 1989, Nan W. Hall was vice-president and secretary of Wayne\u2019s Associates. She became a shareholder on 15 August 1985, but later transferred her stock back to Mr. Hall as a result of a divorce proceeding.\nCircus Hall of Cream #5 at the Highway 64/70 location opened for business in April of 1984. In July of 1984, it was incorporated as Circus Hall of Cream, Inc. Minutes of the first meeting of the board of directors reflect that Wayne\u2019s Associates, Inc. transferred certain assets to Circus Hall of Cream, Inc. on 30 June 1984, and that Circus Hall of Cream, Inc. assumed certain liabilities from Wayne\u2019s Associates, Inc. The difference between the value of assets transferred and the liabilities assumed, $75,000, was paid to Wayne\u2019s Associates, Inc. in the form of capital stock.\nNo notice was given to appellee of the assumption of corporate status. All checks received by appellee for merchandise sold to the Circus Hall of Cream Store located at Highway 64/70, before and after July, 1984, were embossed \u201cCircus Hall of Cream,\u201d without any indication of incorporation.\nBetween 14 January 1988 and 15 August 1988, $25,075.15 in merchandise was sold and delivered by Institution Food House to the Circus Hall of Cream located on Highway 64/70. The account name on the statement was \u201cCircus Hall of Cream.\u201d Plaintiff-appellee has not been paid for the merchandise delivered.\nOn appeal, defendant first argues that the trial court erred in finding as fact that in her capacity as vice-president and secretary of Wayne\u2019s Associates, Inc. and as manager of the 64/70 store, Nan W. Hall had the apparent authority to execute a credit authorization as an agent for Wayne\u2019s Associates, Inc., and that Wayne\u2019s Associates, Inc. ratified the contract.\nRule 52 of the North Carolina Rules of Civil Procedure, N.C. Gen. Stat. \u00a7 1A-1, Rule 52 (1990), provides in pertinent part:\n(a) Findings.\n(1) In all actions tried upon the facts without a jury or with an advisory jury, the Court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\n(c) Review on appeal. \u2014When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment, or a request for specific findings.\nThis Court held in General Specialties Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979), that \u201c[w]here the trial judge sits as the trier of facts, his findings of fact are conclusive on appeal when supported by competent evidence. This is true even though there may be evidence in the record to the contrary which could sustain findings to the contrary.\u201d The ruling of the trial court will not be disturbed on appeal \u201cif there [is] any evidence to support the judgment.\u201d Whitaker v. Earnhardt, 289 N.C. 260, 265, 221 S.E.2d 316, 320 (1976).\nAppellant\u2019s exception to the finding that Nan W. Hall had the apparent authority to execute the credit application as agent of Wayne\u2019s Associates, Inc. is not well-founded. A principal is bound by his agent\u2019s contract \u201cwhen the agent acts within the scope of his or her actual authority; when a contract, although unauthorized, has been ratified; or when the agent acts within the scope of his or her apparent authority, unless the third person has notice that the agent is exceeding actual authority.\u201d Foote & Davies, Inc. v. Arnold Craven, Inc., 72 N.C. App. 591, 595, 324 S.E.2d 889, 892 (1985). \u201cApparent authority includes authority to do whatever is usual or necessary to transact the business an agent is employed to transact.\u201d Id. Apparent authority is determined by the unique facts of each case. Id. at 595, 324 S.E.2d at 893. Facts to be considered include \u201cthe ordinary course of business, the nature and reasonableness of the contract, the officer negotiating it, the size of the corporation, and the number of shareholders.\u201d Id.\nDefendant-appellant contends that whether Nan Hall had apparent authority to bind the corporation is a question of fact for the jury because the evidence is conflicting. As stated above, however, if there is any competent evidence to support the trial judge\u2019s finding, it will not be disturbed on appeal. See Whitaker, 289 N.C. 260, 221 S.E.2d 316. In the case at bar, we find sufficient evidence in the record to support the finding that Nan Hall had the apparent authority to sign the credit application. We also note that in the instant case, different logical and reasonable inferences may not be drawn from the evidence presented, and that the question of apparent authority was one for the court.\nEvidence presented at trial showed that Ms. Hall\u2019s signature is at the bottom of and on the back of the credit application; that she was the general manager of the restaurant and would remain so until another manager was hired; and that Mr. Hall, Ms. Hall\u2019s husband, also president of Wayne\u2019s Associates, Inc., never told her there were things she could not do as vice-president of Wayne\u2019s Associates. The evidence also showed that Ms. Hall spent twelve hours a day in the restaurant for six months, beginning early in April of 1984. Thereafter, she spent ten hours a day, seven days a week, in the restaurant. Ms. Hall supervised the food operations, the ordering of merchandise, all of the employees, and \u201ceverything that was done.\u201d Ms. Hall stated that Mr. Hall informed her that Institution Food House, Inc. would be the basic supplier of food. Ms. Hall also testified that Mr. Hall advised her to sign the credit application.\nUnder the facts of this case, Ms. Hall\u2019s act of signing the credit application for the purchase of food supplies was usual and necessary to transact the business she was employed to transact. The application was signed in the ordinary course of business and was not unreasonable. Because the evidence in the record supports the trial judge\u2019s finding that Ms. Hall had the apparent authority to sign the credit application, we uphold the trial court\u2019s decision. We need not discuss the issue of ratification since the finding of apparent authority was proper and sufficiently binds the principal by his agent\u2019s contract.\nDefendant-appellant next contends that the trial court erred in awarding plaintiff attorney\u2019s fees in the amount of 15% of the debt owed by defendant, without making findings as to the actual hours expended collecting the debt and the reasonable value of those services.\nIn the case sub judice, the trial judge stated that plaintiff\u2019s attorney had drafted pleadings, conducted two depositions, propounded interrogatories, requests for production, requests for admissions, and had participated in a trial which consumed the better part of the day. The court subsequently awarded attorney\u2019s fees to plaintiff. Defendant complains that \u201c[t]here must be some notation with respect to the attorney\u2019s usual hourly charge for the time actually expended and . . . sufficient evidence such as is provided by an [affidavit and billing statement showing the actual work performed and the attorney\u2019s hourly rates.\u201d\nDefendant contends that such findings are required by Coastal Productions v. Goodson Farms, 70 N.C. App. 221, 319 S.E.2d 650, disc. review denied, 312 N.C. 621, 323 S.E.2d 922 (1984) (award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.2(1), where the note provided that the attorney\u2019s fees provision was \u201cvalid and enforceable up to but not in excess of fifteen percent\u201d); Barker v. Agee, 93 N.C. App. 537, 378 S.E.2d 566 (1989), aff\u2019d in part and rev\u2019d in part, 326 N.C. 470, 389 S.E.2d 803 (1990) (award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.2(2), where the attorney\u2019s fees provision provided for reasonable fees \u201cbut not more than such attorney\u2019s usual hourly charges for time actually expended\u201d); and West End III Limited Partners v. Lamb, 102 N.C. App. 458, 402 S.E.2d 472, disc. review denied, 329 N.C. 506, 407 S.E.2d 857 (1991) (provision for award of attorney\u2019s fees \u201cnot exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance\u201d). Defendant\u2019s reliance on these cases, none of which provided for \u201creasonable attorney\u2019s fees,\u201d is misplaced.\nWe first note that reasonableness is the key factor under all attorney\u2019s fees statutes, 70 N.C. App. at 228, 319 S.E.2d at 656. In W.S. Clark & Sons, Inc. v. Ruiz, 87 N.C. App. 420, 360 S.E.2d 814 (1987), this Court stated that \u201c[a] formal credit agreement executed by the parties prior to the establishment of an open account is evidence of indebtedness; and if such an agreement contains a provision for attorney\u2019s fees it will be legally enforceable pursuant to G.S. \u00a7 6-21.2 (citation omitted).\u201d Id. at 442, 360 S.E.2d at 816. In Clark, the plaintiff was allowed to recover a 15% fee, $4,800, without supporting affidavits.\nIn the instant case, as in Clark, although no supporting affidavit was presented, there was a formal credit agreement which provided for reasonable attorney\u2019s fees for the collection of past due debts. Moreover, in the case sub judice, the trial court had before it the pleadings, depositions, and interrogatories, enabling it to make a determination as to the extent of work performed by counsel and the reasonableness of the fees assessed. We, therefore, hold that the attorney\u2019s fees provision is legally enforceable and that plaintiff is entitled to the $3,761.27 award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.2(2). The decision of the trial court is\nAffirmed.\nJudges Eagles and Parker concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Gaither, Gorham & Crone, by J. Samuel Gorham, III, for plaintiff-appellee.", "Lewis E. Waddell, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "INSTITUTION FOOD HOUSE, INC. v. CIRCUS HALL OF CREAM, INC., d/b/a Circus Hall of Cream No. 5, and WAYNE\u2019S ASSOCIATES, INC.\nNo. 9125DC752\n(Filed 6 October 1992)\n1. Accounts \u00a7 14 (NCI4th); Corporations \u00a7 103 (NCI4th)\u2014 action to recover on account \u2014authority of vice-president of corporation to sign credit application\nIn an action to recover on an account, the evidence was sufficient to support the trial court\u2019s finding that the vice-president and secretary of defendant corporation had apparent authority to sign a credit application on behalf of defendant corporation, since the vice-president was the general manager of the restaurant; she supervised food operations, the ordering of merchandise, and all employees; the vice-president\u2019s husband, who was the president, advised her that plaintiff would be the basic food supplier and he advised her to sign the credit application; the vice-president\u2019s act of signing the credit application for the purchase of food supplies was usual and necessary to transact the business she was employed to transact; and the application was signed in the ordinary course of business and was not unreasonable.\nAm Jur 2d, Agency \u00a7 78; Corporations \u00a7\u00a7 1526, 1529, 1542.\n2. Costs \u00a7 33 (NCI4th) \u2014 formal credit agreement \u2014attorney\u2019s fees for debt collection \u2014proper award\nWhere there was a formal credit agreement which provided for reasonable attorney\u2019s fees for the collection of past due debts, and the trial court had before it pleadings, depositions, and interrogatories which enabled it to make a determination as to the extent of work performed by counsel and the reasonableness of the fees assessed, the attorney\u2019s fees provision was legally enforceable, and the court\u2019s award was proper. N.C.G.S. \u00a7 6-21.2(2).\nAm Jur 2d, Contracts \u00a7\u00a7 300, 411; Damages \u00a7 611.\nAPPEAL by defendant from judgment entered 14 March 1991 by Judge Nancy L. Einstein, in CATAWBA County District Court. Heard in the Court of Appeals 25 August 1992.\nGaither, Gorham & Crone, by J. Samuel Gorham, III, for plaintiff-appellee.\nLewis E. Waddell, Jr. for defendant-appellant." }, "file_name": "0552-01", "first_page_order": 580, "last_page_order": 587 }