Mongold v. Woods

Present: Hassell, C.J., Keenan, Koontz, Kinser, Goodwyn, and
Millette, JJ., and Russell, S.J.

VIRGIL MONGOLD, CO-EXECUTOR AND
BENEFICIARY OF THE ESTATE OF
NINA M. DOVE, DECEASED, ET AL. OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 081827 June 4, 2009

TERRY V. WOODS

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
George F. Tidey, Judge Designate

This appeal presents questions concerning the interplay

between theories of recovery based on promissory estoppel and

quantum meruit. It also involves the determination of quantum

meruit damages.

Facts and Proceedings

In accordance with familiar principles of appellate

review, the facts will be stated in the light most favorable

to the party prevailing in the trial court. Paul and Nina

Dove, husband and wife, purchased a tract of land in

Rockingham County as tenants by the entireties in 1985. They

moved into a home on part of the property and conducted a

chicken-raising business on another part, as well as raising

sheep and cattle and growing a hay crop. Terry V. Woods had

worked as a farm laborer for Paul Dove since Terry’s

childhood, helping each summer with the hay crop on other land

owned by the Doves.
 In 1985, Woods was 21 years old and was employed in the

chicken-raising operations of the Rockingham Poultry

Cooperative. He had left school in the tenth grade. Paul

Dove was employed elsewhere, but wanted to continue the

chicken-raising operation already located on the farm he had

acquired. He asked Woods to work for him, tending the

chickens, mowing around the chicken houses, making some hay,

and tending to the livestock. Paul Dove intended to continue

with his employment until he qualified for full retirement,

after which he would return and share with Woods the

responsibilities of the chicken-raising operation.

The Doves paid Woods a salary of $7,850 in 1985. It was

contemplated by the parties at the inception of the

relationship that Woods’ duties would occupy 35 to 40 hours

per week, with every other weekend off. In subsequent years,

Woods received an annual raise, plus a cash bonus based on the

year’s profit from the chicken-raising operation.

About six months after Woods began to work for the Doves

on a salary in 1985, during the hay-making season it became

apparent that Woods’ duties would consume far more that 40

hours per week. He began to work every weekend. He worked 11

hours a day, six days per week during the spring lambing

season and 13 or 14 hours a day during the hay-making season.

He had to work all night during the times when chickens were

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being sold. He also worked six to eight hours on Sundays

during these peak seasons.

The Doves had no children. They were very fond of Woods

and, according to neighbors, treated him nearly like a son.

At the time in 1985 when Woods’ duties nearly doubled, the

Doves could not afford to increase his salary to compensate

him fully for his work. Paul Dove, however, told Woods that

he and his wife, having no children, would, if he “stayed and

stuck with them . . . take care of [him].” Woods and his wife

lived on an adjoining farm. Paul Dove had told him at the

beginning: “75,000 chickens ought to be able to provide two

families with a good, comfortable living.”

Woods’ employment by the Doves continued for the next 21

years. About halfway through that relationship, Paul Dove

became more specific as to his intentions, telling Woods that

when he retired from raising chickens, he would turn the

chicken houses over to Woods so that Woods could continue the

operation and earn his living from them. Paul Dove also told

Woods that the Doves would leave the entire farm property to

him when they died. Woods, in reliance on that assurance,

considered it his responsibility to perform extra work for the

Doves, beyond that compensated by his salary, during their

lifetimes. Woods, without further compensation, tended the

sheep and cattle, sheared sheep, did gardening and landscaping

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work around the Doves’ home, removed a wall in their house to

enlarge a bedroom, cleaned the exterior of the house, built

sheds, repaired fencing around the farm, and helped Paul Dove

entirely fence a 180-acre tract of mountain land the Doves

also owned.

Notwithstanding this additional workload, Woods’ salary,

after annual raises, had only increased to $8.96 per hour for

a 40-hour week by 2004. 1 Woods testified that when Paul Dove

discussed annual raises with him, he told Paul that he was

making a living, and in view of his expectancy of inheriting

the farm, “that’s all that I was concerned about.”

On March 11, 2005, Paul Dove died by accidental

electrocution while working on a thermostat in one of the

chicken houses. Woods was working elsewhere on the farm at

the time. Paul died intestate and all the Dove property

passed to his wife, Nina.

Nina Dove had suffered a stroke before her husband’s

death and, although in poor health, outlived him by two years.

After Paul Dove’s death, Woods continued to work for Nina,

taking on the work Paul Dove had formerly done in addition to

1
In 2004, the Doves paid Woods $12,508, representing
$8.96 per hour for 50 weeks at 40 hours per week. It was
assumed that Woods would be off work for two weeks during the
hunting season each year. The 2004 salary was the highest
Woods had ever received.

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his usual duties. Nina told him that she did not want the

expense and aggravation, or the income, from the chicken-

raising operation and that Woods should take it over. He paid

for the electricity for her home and the propane to heat it.

Nina was unable to walk, and Woods and his wife stayed with

her night and day for about two weeks until her brothers and

sisters made arrangements for her care. Nina told him that

she had made a will leaving him everything except the mountain

land. 2

Nina had a second stroke in late 2005 and went into a

nursing home for rehabilitation. She returned home thereafter

and her family members stayed with her, or employed others to

care for her, until she died as a result of a third stroke in

April 2007. On March 7, 2006, while Nina was in the care of

her family members, Woods received a letter from Lorene

Biller, Nina’s sister, writing as Nina’s attorney in fact,

terminating his “use of the poultry houses.” After Nina’s

death, her last will, dated January 12, 2006, was admitted to

probate. It divided her entire estate among her brothers and

sisters, with a bequest to her church. Woods was not

mentioned in the will. Virgil Mongold and Donald E. Showalter

(the Executors) qualified as co-executors under the will.

2
A draft of such a will was introduced in evidence. It
was undated and never executed.

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 Woods brought this action against the Executors and

beneficiaries. His complaint contains two counts; the first

count seeks to impose a constructive trust upon the estate

based on a theory of unjust enrichment; the second seeks

damages based on a theory of quantum meruit. Woods made no

challenge to the validity of the will.

After hearing the evidence ore tenus, the circuit court,

in a letter opinion, ruled that Woods’ evidence “does not rise

to the level of clear and convincing evidence necessary to

create a constructive trust on the property.” The court

observed that Paul Dove had clearly intended to leave the

property to Woods and had told Woods and other witnesses of

his intention. The court found, however, that the property

was not Paul’s to give, being held by husband and wife as

tenants by the entireties, and Nina’s intentions were not

sufficiently clear. Accordingly, the court denied relief on

Woods’ first count and declined to impose a constructive

trust. Woods does not appeal that ruling.

Nevertheless, the circuit court found by a preponderance

of the evidence that Woods had established a valid claim for

quantum meruit damages beginning in 1996 and continuing

through 2004, including the value of the electricity and

propane Woods furnished to the Dove home after Paul’s death.

The court entered a final order awarding Woods a judgment in

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the amount of $115,172.57. We awarded the Executors an

appeal. We also awarded an appeal to Woods on his assignment

of cross-error to the circuit court’s ruling that his right to

quantum meruit damages did not accrue until 1996.

Analysis

The Executors present three assignments of error: (1)

Woods’ claims are based on promissory estoppel, for which

there is no cause of action in Virginia; (2) quantum meruit

damages are not recoverable where, as here, there is an

express contract of employment; and (3) Woods presented no

evidence of the reasonable value of the services he rendered.

A. Promissory Estoppel and Quantum Meruit

Where it is available, the cause of action based on

promissory estoppel consists of four elements, recently

defined as: “(1) a promise, (2) which the promisor should

reasonably expect to cause action by the promisee, (3) which

does cause such action, and (4) which should be enforced to

prevent injustice to the promisee.” Barnhill v. Veneman, 524

F.3d 458, 475-76 (4th Cir. 2008). The Executors are correct

in asserting that promissory estoppel is not a cognizable

cause of action in Virginia. In a trio of cases decided on

the same day in 1997, we observed that such a cause of action

had never been held to exist in the Commonwealth and we

expressly declined to create such a cause of action. W. J.

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Schafer Associates v. Cordant, Inc., 254 Va. 514, 521, 493

S.E.2d 512, 516 (1997). See Virginia School of the Arts v.

Eichelbaum, 254 Va. 373, 377, 493 S.E.2d 510, 512 (1997);

Ward’s Equipment, Inc. v. New Holland North America, Inc., 254

Va. 379, 385, 493 S.E.2d 516, 520 (1997). We have not altered

that position.

Promissory estoppel and quantum meruit are conceptually

distinct. They require entirely different proof and result in

entirely different remedies.

Where promissory estoppel is available, the promisee must

prove, by the standard of evidence required in the

jurisdiction, the four elements quoted above from Barnhill.

If successful, the promisee is entitled to judicial

enforcement of the promisor’s promise. If that remedy were to

be applied to the present case, it would have required a

conveyance of all the Dove property, less the mountain land,

to Woods, if he had carried his burden of proof by clear and

convincing evidence.

Quantum meruit recovery, by contrast, is based upon an

implied contract to pay the reasonable value of services

rendered. Hendrickson v. Meredith, 161 Va. 193, 198, 170 S.E.

602, 604 (1933). See also Marine Development Corp. v. Rodak,

225 Va. 137, 140-41, 300 S.E.2d 763, 765 (1983). This cause

of action has been available in Virginia for many years. In

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Rea v. Trotter, 67 Va. (26 Gratt.) 585, 592 (1875), this Court

referred to it as “an undeniable principle of law.” There, we

said, “Where service is performed by one, at the instance and

request of another, and . . . nothing is said between the

parties as to compensation for such service, the law implies a

contract, that the party who performs the service shall be

paid a reasonable compensation therefor." (Id.) The remedy

available to the plaintiff is an award of damages amounting to

the reasonable value of the work performed, less the

compensation actually received for that work. Hendrickson,

161 Va. at 201, 170 S.E. at 605.

A party may state in a pleading as many claims as he has,

"regardless of consistency and whether based on legal or

equitable grounds." Rule 1:4(k). The fact that Woods’ first

count alleged facts that might have framed a cause of action

for promissory estoppel, if such had been available, is

immaterial to the claim made in his second count for damages

based on quantum meruit. Therefore, we find no merit in the

Executors’ first assignment of error.

B. Quantum Meruit and Express Contract

The Executors point out that for a court to award a

quantum meruit recovery, the court must conclude that there is

no enforceable express contract between the parties covering

the same subject matter. In such a case, the court will imply

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a contract between the parties to prevent inequity; when such

an express contract exists, however, there is no need to imply

one because the parties have already negotiated an agreement.

Nedrich v. Jones, 245 Va. 465, 477, 429 S.E.2d 201, 207

(1993). The Executors correctly state the rule, but the rule,

according to its terms, applies only when there is an express,

enforceable contract between the parties covering the services

for which quantum meruit recovery is claimed. Id.; Royer v.

Board of Supervisors, 176 Va. 268, 280, 10 S.E.2d 876, 881

(1940).

Implicit in the circuit court’s holding is the finding

that Woods and Paul Dove had an unwritten agreement, beginning

in 1985, that Woods would work between 35 and 40 hours per

week for the Doves. In return for that labor, he was to be

paid a salary as agreed between them annually, plus bonuses

from the sales of chickens. That contract was fully performed

and Woods makes no claim for its breach. Also implicit in the

court’s holding is that when the first haying season began

after the relationship was created, Woods’ workload nearly

doubled, and remained far in excess of 40 hours per week until

the end of the relationship. There was, in 1985, no express

contract covering Woods’ compensation for the additional work

except for the vague promise that the Doves, being unable to

fully compensate him, would “take care of [him].” Later, Paul

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Dove made a more specific promise as described above, but that

promise was held by the circuit court not to constitute an

enforceable contract. That holding was not appealed and is

therefore the law of the case. Thus, the rule cited by the

Executors has no application to Woods’ additional,

uncompensated work.

We will defer to the circuit court’s determination of the

facts unless unsupported by evidence or plainly wrong because

an appellate court lacks the fact-finder’s ability to hear and

see the witnesses and assess their credibility. Patterson v.

Patterson, 257 Va. 558, 564, 515 S.E.2d 113, 116 (1999). The

record contains ample evidence to support the circuit court’s

conclusion that no express, enforceable agreement existed

between the parties as to Woods’ compensation for his work in

excess of 40 hours per week. We cannot say that the circuit

court’s conclusion from the evidence, that an implied contract

was necessary to prevent injustice to Woods, was plainly

wrong.

C. Damages

The Executors’ final assignment of error is that Woods

presented no evidence of the reasonable value of the services

he rendered, an essential requisite of quantum meruit damages.

See Virginia Fin. Assocs. v. ITT Hartford Group, 266 Va. 177,

183, 585 S.E.2d 789, 792 (2003); Marine Development, 225 Va.

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at 140-41, 300 S.E.2d at 765-66; Hendrickson, 161 Va. at 200,

170 S.E. at 605. Woods presented evidence of the approximate

number of hours he worked each year from 1985 until the

relationship ended in 2006. The circuit court accepted that

number as a fact in awarding damages.

The hourly rate the court applied to Woods’ additional,

uncompensated work was the same as the parties agreed on each

year as compensation for the 40 hours per week for which they

had contracted. Woods asked for no wage rate higher than the

parties had agreed upon each year as reasonable compensation

for the 40 hours covered by their express contract. The

circuit court could properly conclude from the evidence that

the parties, being in a position to know the prevailing wage

rates for farm labor in the vicinity and the work Woods was to

perform, had agreed upon the reasonable value of Woods’

services for the originally-contemplated 40 hours per week.

There was no evidence to suggest that the same rate was

unreasonably high for his additional, uncompensated work. 3 We

conclude that Woods presented sufficient evidence of the

reasonable value of his services.

3
Instead, testimony suggested that the rate was lower
than the value of Woods' work because Paul Dove could not
afford to pay him a higher rate but intended to leave the
property to him. Woods did not ask that a higher rate be used
in the assessment of damages. Accordingly, the question
whether the rate was too low is not before us on appeal.

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 D. Cross-Error

Woods contends that his uncompensated work, in excess of

the 40 hours per week covered by his salary, began in 1985,

when the haying season began some six months after the

inception of his salaried employment with the Doves. The

circuit court must necessarily have accepted that as a fact

because there was no evidence of any substantial change in his

workload thereafter until the end of the relationship, except

for additional services he rendered to Nina Dove after Paul’s

death. Woods argues that the circuit court erred in ruling

that his entitlement to quantum meruit damages did not begin

until 1996.

Based on our review of the record, we agree with Woods.

The circuit court stated in its opinion: “The evidence from

[Woods] is that the relationship began in the middle of his

employment. I will award [Woods] a judgment against the

estate in the amount of $106,444.00 (1996-2004) plus the

electric bills of $4,200.00 and the propane bills of

$4,528.57.” That finding was based upon Woods’ testimony that

it was “about midways through” his relationship with the Doves

that Paul Dove told him that the Doves intended to leave the

entire farm property to him when they died. The year 1996 was

pertinent to Woods’ claim for a constructive trust on the farm

property, but that claim was unsuccessful and is not before us

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in this appeal. The year 1996 is irrelevant to Woods’ claim

for quantum meruit damages.

The unrefuted evidence is that the relationship between

Woods and the Doves began in 1985 with the agreement that he

would work 40 hours per week, that about six months later

Woods’ workload nearly doubled and remained at that level

until 2006, and that he received no additional compensation

for his services beyond 40 hours per week. We conclude that

the circuit court’s determination that his entitlement to

quantum meruit damages began only in 1996 was unsupported by

the evidence.

Conclusion

Because we find no merit in the Executors’ assignments of

error, we will affirm the judgment of the circuit court with

respect to the questions presented by their appeal. Because

we find error in the circuit court’s judgment with respect to

its award of damages, we will reverse the judgment in part and

remand the case to the circuit court for further proceedings

consistent with this opinion, limited to the issue of damages.

Affirmed in part,
reversed in part,
and remanded.

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