Jacokes v. APM Builders, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1329
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
PAUL D. JACOKES,
Petitioner
v. Pender County
No. 11 CVS 1081
APM BUILDERS, INC.,
Respondent
Appeal by petitioner from orders entered 22 July 2013 and
12 August 2013 by Judge Paul L. Jones in Pender County Superior
Court. Heard in the Court of Appeals 7 April 2014.
Paul D. Jacokes, pro se, for petitioner-appellant.
Kenneth G. Ording, for respondent-appellee.
CALABRIA, Judge.
Paul D. Jacokes (“Jacokes”) appeals from an order granting
APM Builders, Inc.’s (“APM”) motion to allow set off from
judgment and an order denying the motion to reconsider the order
granting set off from judgment. We affirm.
In 2007, Jacokes and APM entered into a contract for the
construction of a house in Surf City, North Carolina (“the
residence”). Mid-Atlantic Roofing & Sheet Metal, LLC (“Mid-
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Atlantic”), APM’s roofing subcontractor, installed a standing-
seam metal roof on the residence. The roof leaked, causing
damage to the interior and structural components of the
residence. Since Jacokes was not compensated for the damages,
which exceeded $80,000, he sought arbitration of the dispute
according to a provision in the contract requiring arbitration
when parties are unable to resolve their disputes.
In January 2012, Jacokes filed a motion to compel
arbitration of the dispute with APM arising from the rainwater
intrusions into the residence. In June 2012, the arbitrator
awarded Jacokes $40,006.64 plus interest (“the arbitration
award” or “the award”). The award was based upon a finding
regarding the defective installation of the roof, which reduced
the useful life of the roof by 66%. The trial court
subsequently confirmed and entered judgment in favor of Jacokes
and against APM for $41,399.90 (“the judgment”).
In August 2012, Jacokes filed a complaint against Mid-
Atlantic, alleging negligence and unfair trade practices, and
sought reimbursement for damages in excess of $10,000. The
parties, in that case, entered into a settlement agreement in
May 2013 in which Mid-Atlantic’s insurance company agreed to
reimburse Jacokes $33,000 on behalf of Mid-Atlantic. Jacokes
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subsequently filed a voluntary dismissal with prejudice against
Mid-Atlantic.
APM filed articles of dissolution in February 2013 without
satisfying the judgment. In April 2013, a portion of the
judgment was satisfied pursuant to a writ of execution from the
proceeds of the sale of a truck and trailer titled in APM’s
name.
In June 2013, APM filed a motion to allow set off against
the judgment for the amount of Mid-Atlantic’s settlement
payment. After a hearing, the trial court granted APM’s motion
and ordered a set off in the amount of $33,000. As a result,
APM’s outstanding balance on the judgment was satisfied.
Jacokes also filed a motion to reconsider the order granting the
set off from judgment, with a supporting affidavit stating his
total loss from the roof exceeded $80,000 but that he had only
received a total of $48,672.50. The trial court denied Jacokes’
motion to reconsider the order granting set off from judgment.
Jacokes filed notice of appeal for both orders. However,
Jacokes only presents arguments regarding the order granting
APM’s motion for set off and makes no argument before this Court
regarding the motion to reconsider the order granting set off
from judgment. Therefore, any argument concerning that order
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has been abandoned. See N.C. R. App. P. 28(b)(6) (2013)
(“Issues not presented in a party’s brief, or in support of
which no reason or argument is stated, will be taken as
abandoned.”).
Jacokes’ sole argument is that the trial court erred by
granting APM’s motion to allow set off for the amount of Mid-
Atlantic’s settlement payment because it was improperly credited
towards the judgment. We disagree.
A trial court may “relieve a party or his legal
representative from a final judgment, order, or proceeding” if
the judgment has been “satisfied, released, or discharged, . . .
or it is no longer equitable that the judgment should have
prospective application[.]” N.C. Gen. Stat. § 1A-1, Rule
60(b)(5) (2013). “[A] motion for relief under Rule 60(b) is
addressed to the sound discretion of the trial court and
appellate review is limited to determining whether the court
abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217
S.E.2d 532, 541 (1975).
As an initial matter, Jacokes cites several federal cases
to support both an alternative standard of review and his
substantive arguments. However, in matters of North Carolina
law, our Courts “are not bound by federal court rulings, so long
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as our decision comports with the United States Constitution.”
Libertarian Party of North Carolina v. State, 365 N.C. 41, 47,
707 S.E.2d 199, 203 (2011) (citation omitted). Because there is
relevant North Carolina authority available, we find Jacokes’
reliance on federal cases unpersuasive.
In North Carolina, the “one satisfaction” rule is set forth
in Holland v. S. Pub. Utils., 208 N.C. 289, 292, 180 S.E. 592,
593-94 (1935) (“[A]ny amount paid by anybody, whether they be
joint tort-feasors or otherwise, for and on account of any
injury or damage should be held for a credit on the total
recovery in any action for the same injury or damage.”). “Where
‘[t]here is one injury, [there is] still only one recovery.’”
Schenk v. HNA Holdings, Inc., 170 N.C. App. 555, 563, 613 S.E.2d
503, 509 (2005) (quoting Radzisz v. Harley Davidson of
Metrolina, 346 N.C. 84, 89, 484 S.E.2d 566, 569 (1997)).
Although Jacokes cites the one satisfaction rule in his
brief, he appears to misunderstand the meaning of one recovery.
According to Jacokes, one recovery is only synonymous with “full
recovery,” when the plaintiff “at the end of the day” is made
whole. To support his position, Jacokes cites Kogut v.
Rosenfeld, 157 N.C. App. 487, 579 S.E.2d 400 (2003).
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In Kogut, the plaintiff signed personal guaranties securing
bank loans made to a corporation formed by his wife. Id. at
488, 579 S.E.2d at 401. The defendant, Rosenfeld, was a
certified public accountant who provided professional services
for both the plaintiff and the corporation. Id. After the
plaintiff and his wife divorced, the corporation filed for
bankruptcy, and the plaintiff was held partially liable for the
corporation’s debt. Id. at 488-89, 579 S.E.2d at 401. The
plaintiff filed a complaint against his wife seeking to recover
his investments in the corporation and a reimbursement on the
guaranty. Id. at 489, 579 S.E.2d at 401. The claims were
settled in conjunction with a claim for equitable distribution.
Id. The plaintiff subsequently filed a complaint against the
defendant, alleging that she led him to believe the corporation
was profitable and unfairly induced him to sign the guaranty.
Id. at 490, 579 S.E.2d at 402. The trial court granted summary
judgment in favor of the defendant. Id. This Court held that
there was a genuine issue of material fact as to the intended
scope and effect of the settlement and release agreement between
the plaintiff and his wife. Id. at 491, 579 S.E.2d at 403. In
addition, the plaintiff was not prevented from recovering the
remainder of his losses from the defendant because there was no
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satisfaction and the settlement agreement specifically stated
that the defendant was not released from the plaintiff’s claims.
Id. at 492, 579 S.E.2d at 403.
Jacokes also believes the material facts in the instant
case are indistinguishable from Knight Publ’g Co. v. Chase
Manhattan Bank, 137 N.C. App. 27, 527 S.E.2d 80 (2000). In
Knight, two part-owners of a graphic design business sent
fraudulent invoices to the plaintiff for supplies they never
received. Id. at 28, 527 S.E.2d at 81. Plaintiff paid the
invoices by checks that were deposited. Id. After the
plaintiff learned of the fraudulent invoice scheme, it filed a
complaint against the two banks that had honored the checks,
demanding reimbursement for its losses in the graphic design
business’ embezzlement operation. Id. at 29, 527 S.E.2d at 82.
The trial court entered an order awarding the plaintiff damages
for its non-time barred losses. Id. After filing the
complaint, the plaintiff settled claims regarding older checks
that were already time barred with the graphic design business
and the individuals responsible for the fraud. Id. at 30, 527
S.E.2d at 82. The banks argued that they were entitled to
credits on the judgment corresponding to the settlement
agreement. Id. The trial court denied the banks’ motion for
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credit. Id., 537 S.E.2d at 82-83. This Court noted that the
record did not support a conclusion that the plaintiff would be
receiving payments in excess of those to which it was equitably
entitled, and held that the trial court did not abuse its
discretion in denying the banks’ motion for credit. Id. at 30-
31, 527 S.E.2d at 83.
Jacokes argues that both Kogut and Knight are
indistinguishable from the instant case. However, we find that
Baity v. Brewer, 122 N.C. App. 645, 470 S.E.2d 836 (1996), more
closely resembles the facts of the instant case.
In Baity, the plaintiff filed a complaint against two
defendants alleging negligence for injuries she suffered in an
automobile collision. Id. at 646, 470 S.E.2d at 837. Prior to
trial, the plaintiff settled with one of the defendants for an
amount equal to the limits of his insurance policy, and signed a
release with that defendant releasing him from liability. Id.At trial, the remaining defendant was found negligent. Id. The
trial court denied the remaining defendant’s motion to credit
the amount of the settlement towards the judgment against her.
Id. This Court cited Holland in reversing the trial court’s
decision to deny the motion for credit. Id. at 647, 470 S.E.2d
at 838.
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In the instant case, Jacokes is correct that he “may obtain
separate judgments against each of several wrongdoers” in order
to receive full compensation for his injury. Kogut, 157 N.C.
App. at 492, 579 S.E.2d at 403. However, Jacokes is mistaken
that the judgment does not represent the full amount of his
injury. The arbitrator specifically found that the major water
damage to the interior of the home was caused by windblown rain
under and over the exterior doors of the residence. The
arbitrator also found that Jacokes had filed a complaint against
and entered into a settlement agreement with the door
manufacturer, which concerned, inter alia, a claim for the cost
of repair or replacement of the residence’s hardwood floors.
The arbitrator awarded Jacokes $40,006.64 plus interest
based on Jacokes’ claims regarding the replacement of the roof
and the repair and painting of the siding and trim damaged in
the roof replacement. The arbitration award did not include
damages for the water damage to the floors and interior of the
residence because the arbitrator found Jacokes had already
settled those claims in his action against the door
manufacturer. Since the settlement agreement with the door
manufacturer included the allegations specifically regarding
Jackokes’ hardwood floors, his claims for the interior water
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damage were barred. Jacokes did not appeal the arbitration
award, but confirmed it in a judgment against APM.
Jacokes argues that because he incurred damages in excess
of $80,000 as a result of the defective roof, he will not
realize a full recovery even if he is able to recover the
remaining balance of the settlement from APM. He claims that
despite the judgment, he is entitled to seek the remaining
portion of his out-of-pocket costs from other parties, including
Mid-Atlantic. He also contends that the settlement agreement
with Mid-Atlantic constituted compensation for interior repair
costs, not for the roof replacement costs. However, Jacokes is
entitled to only one satisfaction for the damages he sustained.
Holland, 208 N.C. at 292, 180 S.E. at 593-94. The arbitrator
had previously determined that Jacokes had been compensated for
the interior repairs in his settlement with the door
manufacturer. While the settlement agreement between Jacokes
and Mid-Atlantic indicates that the agreement does not prevent
Jacokes “from pursuing recovery on a judgment or any other claim
relating to the Work against APM[,]” the damages to the
residence were confirmed in the unchallenged arbitration award.
Jacokes’ recovery from Mid-Atlantic satisfies his judgment
against APM. Jacokes’ argument is without merit.
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Because we hold that the trial court did not abuse its
discretion in granting APM’s motion for set off, we need not
discuss Jacokes’ remaining arguments. However, it is important
that we briefly include a note on the lack of professionalism in
both parties’ briefs. Specifically, while counsel for APM
claims that Jacokes was “disrespectful” in presenting an
argument regarding the trial court’s conduct during the hearing,
counsel’s emotional response to both of Jacokes’ remaining
claims is an instance of the pot calling the kettle black.
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).