Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2004

Holmes v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1171




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"Holmes v. Smith" (2004). 2004 Decisions. Paper 824.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-1171


                                CLARENCE HOLMES,

                                                       Appellant
                                            v.

     WILLARD SMITH, JR., a/k/a WILL SMITH; WILL SMITH ENTERPRISES;
     JEFFREY TOWNES; A TOUCH OF JAZZ, INC; WILLESEN MUSIC INC,
        a/k/a ZOMBA SONGS, INC; ZOMBA RECORDING CORP, t/a JIVE
                  RECORDS; ZOMBA PRODUCTIONS, LTD


                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 99-cv-04932)
                        District Judge: Honorable Louis H. Pollak


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 23, 2004

               Before: ROTH, AMBRO, and CHERTOFF, Circuit Judges

                                 (Filed April 16, 2004 )




                                       OPINION


Ambro, Circuit Judge

      Clarence Holmes appeals the District Court’s summary judgment in favor of

Willard Smith, Jr., a/k/a Will Smith. Holmes sued Smith for breach of contract and
quantum meruit based on an alleged recording contract between them. The District Court

held that Holmes’s claims were barred by the statute of limitations. Holmes on appeal

argues that his quantum meruit claim is not time barred because the statute of limitations

should be tolled. For the reasons that follow, we disagree and affirm the decision of the

District Court.

                                            I.

       Sometime before 1986, Smith and Jeffrey Townes 1 formed a musical group called

“DJ Jazzy Jeff and the Fresh Prince” (Smith as the Fresh Prince and Townes as DJ Jazzy

Jeff). Holmes performed with the group for a few years under the pseudonym “Ready

Rock C.”

       On July 26, 1986, Smith and Townes together signed a record agreement with a

recording company, Word-Up Records Enterprises, Inc. (“Word-Up”).2 Then, Holmes

claims, on an unspecified day in September of the same year, Smith and Holmes were

walking in Philadelphia toward the home of Dana Goodman, Chief Executive Officer of

Word-Up, when Smith promised Holmes that he would be an equal member of the

group. Holmes asserts that, based on this oral contract, 3 they executed an “addendum”4


  1
    Holmes initially named Townes as a co-defendant but later voluntarily dismissed the
claims against him with prejudice.
  2
   Because Smith then was a minor, his father Willard Smith, Sr. also signed the
agreement as his legal guardian.
  3
   The District Court noted that, even if Holmes’s allegations were taken to be true, the
conversation would not constitute an enforceable contract because Smith was a minor at

                                             2
to the July recording agreement for the purpose of giving Holmes a one-third share of the

group’s future income. The purported addendum states that “Holmes is to be signed to

Word Up Record Co.,” and that “[t]he Word Up Record [C]ompany will make the same

provisions for Clarence Holmes as with Jazzy Jeff and Fresh Prince.” The document,

however, does not refer to the July agreement. Nor does it grant a one-third share of the

group’s profits to Holmes. Neither Smith nor Townes signed this document. 5

         In 1990 Holmes stopped performing with DJ Jazzy Jeff and the Fresh Prince.

When Smith and Holmes saw each other again in an auto shop in Philadelphia in 1992,

Holmes asked Smith about the payment that was owed to Holmes. Smith denied that he

owed any money to Holmes.6

         Holmes experienced financial difficulties throughout the 1990s. When they saw

each other again in 1997, Holmes told Smith that he was facing eviction and having

trouble supporting his family. Holmes also claims that Smith acknowledged his debt

owed to Holmes during this conversation. Thereafter, between 1997 and 1998, Smith

wrote several checks to Holmes totaling $26,000. Holmes claims that Smith was paying



that time.
  4
   The document Holmes presents as the addendum is a one-page, undated, hand-written
piece of paper. We note that the document is not named as an addendum (or anything)
and the name of the company is misspelled.
  5
      It was signed by Goodman and Holmes.
  6
    Holmes alleges that Smith said to him, “[y]ou are gonna have to sue me.” Smith
claims that he only told Holmes that he did not think that he owed any money.

                                             3
his debt while Smith counters that the payments were gifts.

         On October 5, 1999, Holmes brought a suit against Smith in the District Court for

breach of contract and quantum meruit.7 In August 2002 Holmes moved for summary

judgment on his contract claim. On the same day Smith also filed a motion for summary

judgment on both of Holmes’s claims. On December 20, 2002, the District Court granted

Smith’s summary judgment motion and denied Holmes’s motion by finding that the

statute of limitations had run for Holmes’s claims. Holmes appeals all but the summary

judgment on his breach of contract claim.8

                                              II.

                                              A.

         Holmes first argues that the District Court erroneously dismissed his quantum

meruit claim because the reasons the District Court provided for its judgment only

pertained to his contract claim. We disagree.

         Under Pennsylvania law,9 the statute of limitations for a quantum meruit action is


  7
   Holmes initially also named as defendants Will Smith Enterprises, Inc., Townes, A
Touch of Jazz, Inc., Zomba Productions and its related entities. Holmes’s claims against
them, including copyright claims, were later dismissed. (As stated in note 1, Holmes’s
claims against Townes were dismissed with prejudice. We presume that the other claims
were also dismissed with prejudice, thought we cannot find evidence in the record.)
  8
      We have jurisdiction under 28 U.S.C. § 1291.
  9
    Because this case is based on diversity of citizenship, we apply the substantive law of
Pennsylvania. See Ciccarelli v. Carey Canadian Mines, Ltd., 

, 552 (3d Cir.
1985) (“Federal Courts sitting in diversity cases must apply the substantive law of the
states in which they sit and statutes of limitations are considered substantive.”)

                                              4
four years. 42 Pa. Cons. Stat. § 5525(a)(4). In supporting his summary judgment motion

below, Smith argued that the limitations period for Holmes’s quantum meruit claim had

expired because the relationship between Smith and Holmes was terminated more than

four years before Holmes filed a suit in 1999. See Cole v. Lawrence, 

, 989

(Pa. Super. Ct. 1997) (“[Q]uantum meruit actions begin to accrue as of the date on which

the relationship between the parties is terminated.”) (citing Kenis v. Perini Corp., 

, 849 (Pa. Super. Ct. 1996) (holding that attorney’s quantum meruit cause of

action against his former client accrued as of the date of the attorney’s termination of

representation)).

       The record shows that, in his response to Smith’s summary judgment motion,

Holmes did not dispute the actual expiration of the time to file his quantum meruit

action.10 Instead, he argued that his cause of action was revived when Smith

“acknowledged” his debt in 1997-98 by making payments to Holmes. See United States

v. Hemmons, 

, 351 (E.D. Pa. 1991) (“Under Pennsylvania law, when . . .

a loan payment serves as an acknowledgment of the total outstanding debt, the statute of

limitations re-commences running with each payment.”) (citation omitted). During oral

argument before the District Court, Holmes again focused on this acknowledgment theory

and did not dispute the actual expiration of the statute of limitations. He did so even




  10
   On appeal, the parties agree that the year Holmes stopped performing with Smith was
1990, nine years before Holmes brought this suit against Smith.

                                              5
though he now concedes that both his contract and quantum meruit claims were properly

before the District Court during the oral argument.

       The District Court sufficiently dealt with the acknowledgment doctrine and

provided the reasons for refusing to apply it to this case. The Court correctly pointed out

that Holmes must show clear and unequivocal acknowledgment of the debt to prevail.

See Huntingdon Finance Corp. v. Newtown Artesian Water Co., 

, 1054

(Pa. Super. Ct. 1995) (“There must . . . be no uncertainty either in the acknowledgment or

in the identification of the debt; and the acknowledgment must be plainly referable to the

very debt upon which the action is based; and also must be consistent with a promise to

pay on demand and not accompanied by other expressions indicating a mere willingness

to pay at a future time.”). After detailed discussion of the law and the facts, the District

Court found that the several payments Smith made to Holmes between 1997 and 1998,

each or in aggregate, did not satisfy the precision called for by Huntingdon. Thus, we

conclude that the District Court provided a sufficient basis for entering summary

judgment against Holmes on his quantum meruit claim.

                                              B.

       Holmes alternatively argues that the statute of limitations for his quantum meruit

claim should be tolled because his alleged contract with Smith was a “continuing one.” 11



  11
    In support of this assertion, Holmes maintains that contracts in the music industry are
generally ongoing and continuous. Thus, he claims that the contract itself was never
terminated even though he stopped performing with the group.

                                              6
This issue was not argued in the District Court. As such, “[i]t is well established that

failure to raise an issue in the district court constitutes a waiver of the argument.”

Medical Protective Co. v. Watkins, 

, 105 (3d Cir. 1999). Moreover, this case

does not present an extraordinary circumstance warranting the review of an issue for the

first time on appeal. Although Pennsylvania law recognizes an alternative date from

which the statute of limitations runs when a continuing contract is involved, this

exception applies only to a plaintiff’s contract cause of action (which Holmes is not

appealing) and not to an action based on quantum meruit. See S.T. Hudson Engineers,

Inc. v. Camden Hotel Dev. Assocs., 

, 934 (Pa. Super. Ct. 2000); Cole v.

.

                                     * * * * * *

       Accordingly, we affirm the District Court’s summary judgment.




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