The opinion
NO. COA14-577
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
JEANNE A. CLARK,
Plaintiff,
v. Wake County
No. 13 CVD 10681
RICHARD J. BICHSEL,
Defendant.
Appeal by defendant from order entered 23 December 2013 by
Judge Lori G. Christian in Wake County District Court. Heard in
the Court of Appeals 22 October 2014.
No brief filed for plaintiff-appellee.
Heidgerd Law Office, LLP, by Eric D. Edwards and Jason E.
Spain, for defendant-appellant.
STEELMAN, Judge.
The trial court’s findings of fact were supported by
competent evidence, and in turn support the trial court’s award
of a monetary judgment in favor of plaintiff. Where defendant
failed to raise the affirmative defense of mitigation at trial,
that argument on appeal is dismissed. The trial court erred in
ordering defendant to pay money damages within 60 days.
I. Factual and Procedural Background
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Jeanne Clark (plaintiff) and Richard Bichsel (defendant)
entered into a lease agreement with a third party for an
apartment beginning 1 September 2012 and expiring 1 September
2013. The parties agreed that they would each pay half of the
rent. Defendant paid his half of the rent for the months of
September, October, November, and December of 2012. In December
of 2012, defendant moved out of the apartment. Defendant
notified the apartment leasing agency that he would be moving
out, and that plaintiff would remain on the premises with her
three children and one dog. Neither party attempted to
renegotiate the lease. After defendant’s departure, plaintiff
paid the entire rent.
On 1 July 2013, plaintiff filed a complaint for money owed
against defendant in the Small Claims Court for Wake County. On
1 August 2013, the magistrate entered judgment in favor of
plaintiff, and ordered defendant to pay $5,000. Defendant
appealed to the District Court of Wake County. The case went to
arbitration pursuant to N.C. Gen. Stat. § 7A-37.1. On 7 October
2013, an arbitration award was filed in favor of defendant,
awarding nothing to plaintiff. On 1 November 2013, plaintiff
appealed this decision to the District Court of Wake County.
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The case was heard by the trial court, sitting without a
jury. On 23 December 2013, the trial court entered its judgment
in favor of plaintiff. Specifically, the trial court found that
plaintiff and defendant had an oral contract to split the rent,
that defendant breached that contract, and that plaintiff was
damaged by the breach. The trial court ordered defendant to pay
damages in the amount of $5,280. The trial court further
ordered that “Defendant shall pay Plaintiff within 60 days of
receipt of this order.”
Defendant appeals.
II. Findings of Fact
In his first argument, defendant contends that the trial
court’s findings of fact were not supported by the evidence at
trial. We disagree.
A. Standard of Review
“‘[F]indings of fact made by the trial judge are conclusive
on appeal if supported by competent evidence, even if . . .
there is evidence to the contrary.’” Sisk v. Transylvania Cmty.
Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010)
(quoting Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93,
100-01, 655 S.E.2d 362, 369 (2008)).
B. Analysis
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Defendant contends that the trial court’s findings of fact
numbers 2, 8, 10, 12, and 14 are unsupported by and contrary to
the evidence presented at trial. The trial court specifically
found that:
2. The parties had a verbal agreement that
they would each pay half the rent on said
apartment.
. . .
8. Plaintiff relied on Defendant's verbal
agreement that the parties would to pay half
of the rent for the term of the lease. The
lease expired on September 1, 2013.
. . .
10. Plaintiff could not pay the entire rent
without Defendant's commitment to pay half
the rent.
. . .
12. Plaintiff relied on Defendant's
commitment to pay half the rent.
. . .
14. Plaintiff relied on Defendant's
commitment to pay half the rent.
At trial, plaintiff stated that:
The defendant and I signed a lease to
establish residency together and it was a
12-month lease. And our agreement was to
split the rent and expenses, which we did
for four months, until he decided to
establish residency elsewhere.
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Defendant later testified, when discussing how he and
plaintiff had planned to divide the rent:
We were gonna split the rent and half the
utilities while we were living together.
Given that both plaintiff and defendant testified that they
agreed to divide the rent, we hold that there was evidence in
the record to support the trial court’s finding that the parties
made a verbal agreement to divide the rent.
Plaintiff further testified that, after defendant moved
out:
I said I wasn't going to move out because I
was financially bankrupt at that point. I
wasn't -- I didn't have any other option but
to stay there. I wasn't --
Q You thought --
A I didn't have the money to establish a
new residence.
Q Did you at that point talk to the
leasing company, the landlord about trying
to get out of the lease?
A No. He did mention that. I can't
remember if he paid like three months rent
that we could get out of it. But as I just
stated, I did not have the cash to do that.
And he didn't offer to do that.
Plaintiff’s repeated statements that she lacked the funds
to move, and that she was financially bankrupt, tend to support
a finding that she lacked the funds to pay the remaining rent,
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and that she relied on defendant’s assurance that he would pay
half of the rent. We hold that the trial court’s findings were
supported by competent evidence.
Defendant further contends that the trial court’s
conclusions of law based upon these findings were in error,
because the findings were improper. As we have held that these
findings were supported by competent evidence, we hold that the
conclusions of law based thereon were also proper.
This argument is without merit.
III. Failure to Mitigate Damages
In his second argument, defendant contends that the trial
court erred in failing to make findings concerning plaintiff’s
failure to mitigate damages. Because defendant failed to raise
this affirmative defense at trial, this argument is dismissed.
A. Standard of Review
“[A] party’s failure to properly preserve an issue for
appellate review ordinarily justifies the appellate court’s
refusal to consider the issue on appeal.” Dogwood Dev. & Mgmt.
Co. v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d
361, 364 (2008); see also N.C. R. App. P. 28(b)(6).
B. Analysis
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Defendant contends that plaintiff should have attempted to
renegotiate her lease after defendant’s departure, that
plaintiff’s failure to do so constitutes a failure to mitigate
damages, and that the trial court erred in failing to make
findings with respect to mitigation.
Failure to mitigate damages is an affirmative defense. See
e.g. Elm St. Gallery, Inc. v. Williams, 191 N.C. App. 760, 762,
663 S.E.2d 874, 875 (2008). “The [breaching] defendants [bear]
the burden of proof on [their] affirmative defense that [the
nonbreaching party] failed to mitigate its damages.” Kotis
Props., Inc. v. Casey's, Inc., 183 N.C. App. 617, 623, 645
S.E.2d 138, 142 (2007). In the instant case, defendant made no
argument at trial concerning plaintiff’s failure to mitigate.
“A contention not raised in the trial court may not be raised
for the first time on appeal.” Creasman v. Creasman, 152 N.C.
App. 119, 123, 566 S.E.2d 725, 728 (2002) (quoting Town of
Chapel Hill v. Burchette, 100 N.C. App. 157, 159-60, 394 S.E.2d
698, 700 (1990)); see also N.C. R. App. P. 10(a)(1).
We hold that defendant’s failure to raise the issue of
mitigation at trial waives that issue for appellate review.
This argument is dismissed.
IV. Money Judgment
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In his third argument, defendant contends that the trial
court erred in ordering defendant to pay a money judgment within
60 days. We agree.
A. Standard of Review
“Issues of statutory construction are questions of law,
reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,
511, 689 S.E.2d 590, 592 (2010).
B. Analysis
Plaintiff brought this action against defendant seeking a
money judgment. Money judgments are generally controlled by
N.C. Gen. Stat. § 1-302, which provides that:
Where a judgment requires the payment of
money or the delivery of real or personal
property it may be enforced in those
respects by execution, as provided in this
Article. Where it requires the performance
of any other act a certified copy of the
judgment may be served upon the party
against whom it is given, or upon the person
or officer who is required thereby or by law
to obey the same, and his obedience thereto
enforced. If he refuses, he may be punished
by the court as for contempt.
N.C. Gen. Stat. § 1-302 (2013). We have previously held that,
as a general rule, once a judgment fixes the amount due,
execution, not contempt, is the appropriate proceeding. Brown
v. Brown, 171 N.C. App. 358, 361, 615 S.E.2d 39, 41 (2005). In
the instant case, the trial court ordered payment within 60
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days, which was not authorized by N.C. Gen. Stat. § 1-302, and
was in error.
We vacate the portion of the trial court’s judgment
requiring defendant to pay the judgment within 60 days. Upon
remand, plaintiff may attempt to enforce the judgment in
accordance with the provisions of Article 28 of Chapter 1 of the
General Statutes.1
AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART.
Judges CALABRIA and McCULLOUGH concur.
1
We further note that pursuant to N.C. Gen. Stat. § 1-305(b),
the Clerk of Superior Court is not authorized to issue execution
until the provisions of that statute have been complied with.