Goodwin v. Webb , 152 N.C. App. 650 ( 2002 )

GREENE, Judge,

dissenting.

Because I do not believe a genuine issue of fact exists with respect to plaintiff’s ratification of the agreement, I dissent.

Ratification

Defendant contends that because plaintiff accepted all the benefits under the agreement and was not under duress at the time she accepted those benefits, she ratified the agreement and cannot now challenge it. I agree.

Duress occurs when a party is induced to perform or forego some act under circumstances depriving her of the exercise of her free will. Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05 (1971). A separation agreement executed while a party is acting under duress is invalid and can be set aside. Cox v. Cox, 75 N.C. App. 354, 356, 330 S.E.2d 506, 508 (1985). An agreement, however, even if procured by duress, “may be ratified by the victim so as to preclude a subsequent suit to set [it] aside.” Link, 278 N.C. at 197, 179 S.E.2d at 706. A party ratifies an agreement by retroactively “authorizing] or otherwise approving] [it], . . . either expressly or by implication.” Black's Law Dictionary 1262 (6th ed. 1990). Thus, ratification can occur where a party accepts benefits and performs under an agreement. See Lowry v. Lowry, 99 N.C. App. 246, 254, 393 S.E.2d 141, 146 (1990) (wife ratified agreement by signing it, incorporating it into consent judgment, and receiving benefits for three years); see also Hill v. Hill, 94 N.C. App. 474, 479, 380 S.E.2d 540, 544 (1989) (wife ratified agreement by monthly accepting from the husband $1,000.00 and other benefits under an agreement even after she became aware of alleged wrongdoing); Ridings v. Ridings, 55 N.C. App. 630, 632-33, 286 S.E.2d 614, 616 (husband ratified agreement by paying alimony for four months and accepting title and possession of property transferred under an agreement), disc. review denied, 305 N.C. 586, 292 S.E.2d 571 (1982). The act only constitutes ratification if it is done with full knowledge that the acceptance of benefits or the performance arises pursuant to the agreement and is done so without any duress. See Link, 278 N.C. at 197, 179 S.E.2d at 706-07; see also Housing, Inc. v. Weaver, 37 N.C. App. 284, 300, 246 S.E.2d 219, 228 (1978) (there can be no ratification so long as the duress continues), aff'd, 296 N.C. 581, 251 S.E.2d 457 (1979).

A

Full Knowledge

In this case, viewing the evidence in the light most favorable to plaintiff, plaintiff was aware that the $160,000.00, the various tracts of land, and the truck, all of which she used, were benefits she received under the agreement. Immediately after receiving a check in the amount of $160,000.00 directly from defendant’s firm, plaintiff negotiated the check and invested it into mutual funds. With respect to the various tracts of land she has leased or otherwise encumbered, plaintiff testified in her deposition that she was aware she would be receiving those pursuant to the agreement. There is no evidence in the record that at the time plaintiff encumbered those tracts, she was unaware she possessed them by reason of the agreement. Plaintiff has failed to come forward with any evidence or specific facts showing she did not have full knowledge that the benefits she acquired were by virtue of the agreement. Indeed, the evidence shows plaintiff was using the $160,000.00 and the tracts of land with full knowledge they were benefits arising under the agreement. While the majority states plaintiff did not understand the agreement, plaintiff testified in her deposition that: she understood what Goodwin meant when he told her he would not pay her alimony; she understood she could have taken the agreement to an attorney for review prior to signing it; and she understood everything she would be receiving and forfeiting under the agreement. Accordingly, I do not believe that Dr. Sultan’s affidavit, in light of plaintiff’s deposition testimony, creates a genuine issue of fact as to whether plaintiff acted with full knowledge. See Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978) (a party cannot file an affidavit contradicting her prior sworn statement in order to create a genuine issue of fact for trial), aff'd, 297 N.C. 696, 256 S.E.2d 688 (1979).

B

Duress

Plaintiff next argues that even if she acted with full knowledge, she was under duress at the time she accepted the benefits under the agreement. I disagree.

In this case, there is no evidence plaintiff accepted the benefits of the agreement while acting under duress. Plaintiff willingly accepted and negotiated the check in the amount of $160,000.00 and encumbered some of the property acquired under the agreement by using it to secure loans. All of this occurred without any threat or coercion from Goodwin. Even more notable is the fact that after Goodwin’s death plaintiff began renting the 117-acre farm, continued to lease the Faulkner tract and the office building, and had the marital home and the 117-acre farm appraised to purchase a home for her daughter. Thus, even if I were to assume plaintiff may have acted under duress at the time she signed the agreement and up until Goodwin’s death, there is no evidence in the record to this Court supporting plaintiff’s duress after Goodwin’s death. Accordingly, I do not believe there is a genuine issue of fact as to whether plaintiff acted under duress while accepting the benefits and performing under the agreement.¹ Therefore, because plaintiff accepted the benefits under the agreement with full knowledge and without duress, she ratified the agreement and thus is precluded from challenging it. I would affirm the trial court’s order.

1 . I note the affidavits of plaintiff and Dr. Sultan state that plaintiff was afraid to contest the agreement up until Goodwin’s death. Plaintiff, in her own deposition, however, stated she told Goodwin she would contest the agreement, she met with a lawyer concerning contesting the agreement, and was in the process of filing a lawsuit to contest the agreement at the time Goodwin died; hence there is no evidence whatsoever that plaintiff was coerced into accepting and using the benefits of the agreement.