Opinion
No. COA02-1068
Filed 2 September 2003 This case not for publication
Appeal by plaintiff from judgment entered 16 January 2002 by Judge J. Stanley Carmical in Robeson County District Court. Heard in the Court of Appeals 20 May 2003.
Sullivan Grace, P.A., by Nancy L. Grace and Katherine G. Hardersen, for plaintiff appellant. Brown Neier, L.L.P., by Bryce D. Neier, for defendant appellee.
Robeson County No. 97 CVD 2404.
Martin Lee Bass ("plaintiff") and Vickie Lynn Bass ("defendant") were married on 16 June 1990, separated on or about 22 October 1997, and divorced on 14 December 1998. The parties' cross-claims for equitable distribution were heard on 7 September 2001, and on 16 January 2002, the trial court entered a Judgment of Distribution of Marital Property (the "equitable distribution order") in which the trial court identified, and assigned a monetary value to, each item of marital property pursuant to N.C. Gen. Stat. § 50-20 (2001). One item determined by the trial court to be marital property was Bass Bonding Company, Inc. ("Bass Bonding"), a bail-bonding business established together by the parties during their marriage. With respect to the valuation of Bass Bonding, the trial court made extensive findings of fact as follows:
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11. The parties chose Mr. Willie Blake, a certified Public Accountant from Fayetteville, NC to value Bass Bail Bonding, Inc. This business is jointly owned by the parties, and Mr. Blake placed a total value on the business of $419,689.00. The component of a professional practice which is the most controversial and difficult to value, is it's [sic] good will [sic]. Mr. Willie Blake, used the excess earnings method of valuation to value this business. He values the adjusted net tangible assets of the business at $231,939.00. He values the intangible good will [sic] at $187,750.00. The Defendant's expert witness, Mr. Walter Lee Cline, testified that the primary product of a bail bonding business is the generation of liability, namely, the bail bonds themselves. The inventory of a bail bond business is the bonds that the business might have to pay if forfeited. According to [Cline], it is very doubtful that he, or anyone else, would buy another bonding company that had outstanding liabilities. For the many years that [Cline] has been a bondsman, [Cline] only knows of one bonding company that was sold as a going concern.
12. Mr. Blake's well-reasoned valuation of the goodwill of this bonding business is wildly speculative in light of the absence of any real market value for bail bonding businesses. The usual definition of fair market value as applied by Mr. Blake is not valid in the face of evidence that there is in fact no true market for such unique businesses. Accordingly, the Court sets the value of the bail bonding business at $231,939.00 and rejects Mr. Blake's contention that the goodwill of the business has a value of $187,750.00.
. . .
In dividing the marital property pursuant to N.C. Gen. Stat. § 50-20 et seq., the trial court determined that defendant was entitled to Bass Bonding. The equitable distribution order further provided as follows:
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18. Based upon the foregoing, the Court determines and finds as a fact, that an equal division would be equitable. It is, however, impossible to make a division in kind, and, therefore, in order to accomplish an equal division of marital property, it will be necessary for the Defendant to make a distributive award to the Plaintiff in the sum of $119,098.50. This distributive award facilitates the distribution and is necessary to achieve equity between the parties.
. . .
The equitable distribution order further provided that the distributive award "shall be paid in three (3) equal installments of $39,700.00. . . . The first instalment [sic] shall be due, with interest, on December 1, 2002. The remaining installments, with interest, shall be due on December 1, 2003, and December 1, 2004." On 14 February 2002, plaintiff filed his notice of appeal from the equitable distribution order. Plaintiff does not contest the trial court's determination that Bass Bonding is marital property. Plaintiff appeals only from those portions of the equitable distribution order which (1) valued Bass Bonding at $231,939.00, a figure representing the value of the business' adjusted net tangible assets, and (2) awarded plaintiff a distributive award of $119,098.50. Plaintiff contends the trial court should have assigned a higher monetary value to Bass Bonding, which would have consequently resulted in a larger distributive award to him.
In his brief, plaintiff asserts the trial court erred by (1) determining the value of Bass Bonding without placing any value on the company's intangible business goodwill, based solely on the finding that there is a limited market for bail bonding businesses; (2) relying on the testimony of bail bondsman Walter Cline ("Cline") in rejecting the existence of goodwill in Bass Bonding; and (3) calculating the amount of plaintiff's distributive award based on an erroneous determination of Bass Bonding's value. For the reasons discussed herein, we find each of plaintiff's assignments of error to be without merit.
Our appellate courts have established the standard of review for equitable distribution awards as follows:
Historically our trial courts have been granted wide discretionary powers concerning domestic law cases. . . . It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. . . . A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. . . . A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.
Munn v. Munn, 112 N.C. App. 151, 155-56, 435 S.E.2d 74, 77 (1993) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)) (internal citations omitted). In the case sub judice, we apply the abuse of discretion standard in reviewing the trial court's equitable distribution order.
By his first assignment of error, plaintiff contends the trial court erred by rejecting certified public accountant Willie Blake's ("Blake") conclusion that the value of Bass Bonding's intangible business goodwill, which he determined was worth $187,750.00, should have been added to the $231,939.00 value of Bass Bonding'sadjusted net tangible assets to produce a total value of $419,689.00 for the business as of the date the parties separated. Plaintiff further contends the trial court rejected Blake's valuation "based solely on the finding that there is a limited market for bail bonding businesses."
In the context of determining the value, for equitable distribution purposes, of a professional practice determined to be marital property, this Court has stated that a trial court "should consider the following components of the practice: (a) its fixed assets including cash, furniture, equipment, and other supplies; (b) its other assets including accounts receivable and the value of work in progress; (c) its goodwill, if any; and (d) its liabilities." Poore v. Poore, 75 N.C. App. 414, 419, 331 S.E.2d 266, 270, disc. review denied, 314 N.C. 543, 335 S.E.2d 316-17 (1985) (emphasis added). This Court has stated that goodwill "is commonly defined as the expectation of continued public patronage." Id. at 420, 331 S.E.2d at 271.
"There is no set rule for determining the value of the goodwill of a professional practice; rather, each case must be determined in light of its own particular facts. . . . The determination of the existence and value of goodwill is a question of fact and not of law . . . and should be made with the aid of expert testimony." Id. at 421, 331 S.E.2d at 271 (internal citations omitted). "On appeal, if it appears that the trial court reasonably approximated the net value of the practice and its goodwill, if any, based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed." Id. at 422, 331 S.E.2d at 272. The reasoning employed by this Court in Poore "is also applicable to the valuation of closely held corporations." Locklear v. Locklear, 92 N.C. App. 299, 301, 374 S.E.2d 406, 407 (1988).
After a careful review of the record, we conclude that the trial court here did not abuse its discretion in setting Bass Bonding's value at $231,939.00 and rejecting Blake's valuation of Bass Bonding's goodwill at $187,750.00. We also conclude that this portion of the trial court's ruling was not "based solely on the finding that there is a limited market for bail bonding businesses."
The trial court's finding that Blake's valuation of Bass Bonding's goodwill was "wildly speculative in light of the absence of any real market for bail bonding businesses" was supported by the expert testimony of bail bondsman Cline, who testified that in twenty-seven years as a licensed bail bondsman he knew of only one occasion in which an individual had purchased a bail bonding company as a going concern from another bondsman. Cline further testified it was "really doubtful" that he would purchase a bail bonding company from another bondsman and that the sale of a bail bonding company as a going concern was unlikely because the purchaser would be "buying a liability . . . not buying an asset." The trial court made additional findings of fact that, unlike other types of businesses, "the primary product of a bail bonding business is the generation of a liability, namely, the bail bonds themselves" and that Bass Bonding's inventory consisted solely of "the bonds that the business might have to pay if forfeited," which were also supported by Cline's testimony.
It is well-settled that in a bench trial, the trial judge "has the duty to pass upon the credibility of the witnesses who testify. He decides what weight shall be given to the testimony and the reasonable inferences to be drawn therefrom." General Specialties Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979). Moreover, where, as here, the trial judge sits as the trier of fact, his findings are "conclusive on appeal when supported by competent evidence." Id.
Examining the four Poore components for determining a business' value for equitable distribution purposes in light of the trial court's findings, we conclude that the trial court did not abuse its discretion in setting Bass Bonding's value at $231,939.00, which represented Blake's valuation of the business' adjusted net tangible assets. Cline's testimony gave rise to a reasonable inference that unlike other types of businesses, bail bonding companies have no accounts receivable or inventory apart from their outstanding bonds, which are properly characterized as liabilities rather than assets because the bonds are subject to forfeit while they remain outstanding. With respect to the goodwill component, which is "comprised of such things as location, referrals, associations, reputation, trade name and office organization," Sonek v. Sonek, 105 N.C. App. 247, 249, 412 S.E.2d 917, 919 (1992), we conclude that the trial court did not abuse its discretion in declining to recognize the existence of goodwill in Bass Bonding. Cline's testimony concerning both Bass Bonding's severely limited marketability and the high rate of turnover among bail bonding companies in nearby Cumberland County, combined with Bass Bonding's mere four-year existence prior to the parties' separation and the unique nature of how the services provided by a bail bonding company produce income, support the trial court's findings of fact, which in turn support its conclusions of law. We thus hold that the trial court did not abuse its discretion in assigning no value to Bass Bonding's "expectation of continued public patronage" and therefore declining to adopt Blake's valuation of the business' goodwill. This assignment of error is overruled.
By his next assignment of error, plaintiff contends the trial court erred in relying on Cline's testimony regarding the limited market for bail bonding businesses. We disagree.
The trial court allowed Cline, over plaintiff's objection, to testify "as an expert witness — as a bail bondsman." With regard to expert witness testimony, our Supreme Court has stated as follows:
The admissibility of expert testimony is governed by Rule 702 of the North Carolina Rules of Evidence, which provides, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C.G.S. § 8C-1, Rule 702(a) (1999). Expert testimony is properly admissible when the witness, because of his expertise, is in a better position to have an opinion on the matter than is the trier of fact. The trial court is given great latitude in determining the admissibility of expert testimony.
State v. Gainey, 355 N.C. 73, 88, 558 S.E.2d 463, 473-74, cert. denied, 154 L.Ed.2d 165, 123 S.Ct. 182 (2002) (internal citations omitted).
In the case sub judice, we conclude that Cline, by virtue of his twenty-seven years as a bail bondsman in Robeson, Cumberland, and surrounding counties as well as his ten-year tenure on the North Carolina Bail Bonding Association's board of directors, was in a better position than the trial court to have an opinion regarding the marketability of bail bonding businesses. Moreover, plaintiff did not object to Cline's testimony, in response to the trial court's inquiry, that he knew of only one sale of a bail bonding business as a going concern in the past twenty-seven years. This assignment of error is without merit.
In light of our holding that the trial court did not abuse its discretion in setting Bass Bonding's value at $231,939.00, we need not address plaintiff's third assignment of error.
Affirmed.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).