Okafor v. Okafor

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1441
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
BONAVENTURE OKAFOR and
UZOMAKA OKAFOR,
Plaintiffs,
v. Guilford County
No. 12 CVS 10235
DONATUS OKAFOR, NORDICA L.
JEFFERS, RUDOLPH P. JEFFERS,
JR., EMBRACE HOME LOANS, INC.,
and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.
Appeal by plaintiffs from judgment entered 30 September
2013 by Judge Lindsay R. Davis, Jr. in Guilford County Superior
Court. Heard in the Court of Appeals 24 April 2014.
Law Office of Timothy Gray, by Timothy W. Gray, for
plaintiffs-appellants.
Pendergrass Law Firm, PLLC, by James K. Pendergrass, Jr.,
for Nordica L. Jeffers, Rudolph P. Jeffers, Jr., Embrace
Home Loans, Inc. and Mortgage Electronic Registration
Systems, Inc., defendants-appellees.
Benson, Brown & Faucher, PLLC, by Grant Sigmon, for Donatus
Okafor, defendant-appellee.
HUNTER, JR., Robert N., Judge.
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Uzomaka Okafor and Bonaventure Okafor (collectively,
“Plaintiffs”) appeal from an order granting summary judgment in
favor of Donatus Okafor (“Defendant Donatus”), Nordica L.
Jeffers, Rudolph P. Jeffers, Jr., Embrace Homes, Inc., and
Mortgage Electronic Registration System, Inc. (collectively,
“the Jeffers Defendants”). Plaintiffs argue: (1) that they did
not intend for a prior settlement agreement to apply to the
current action; (2) that an attached affidavit within the
Jeffers Defendants’ summary judgment motion was inadmissible
because it violated N.C. R. Civ. P. 56(e); (3) that Defendant
Donatus did not raise the election of remedies doctrine as an
affirmative defense in his pleadings; and (4) that Defendant
Donatus’s summary judgment motion was not properly supported
because it contains only unverified assertions. After careful
review, we affirm.
I. Factual and Procedural History
On 28 October 2008, property located in Browns Summit,
Guilford County (“the Subject Property”) was transferred from
Wade Jurney Homes, Inc. to Plaintiff Bonaventure Okafor.1 On 21
January 2011, a deed was recorded that transferred the Subject
Property from Plaintiffs to Defendant Donatus for no taxable
1
Plaintiff Uzomaka Okafor is the wife of Bonaventure Okafor.
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consideration. On 1 April 2011, another deed was recorded
transferring the Subject Property from Defendant Donatus to
Defendants Nordica L. Jeffers and Rudolph P. Jeffers, Jr. At
the same time, Defendants Nordica L. Jeffers and Rudolph P.
Jeffers, Jr. executed a deed of trust in favor of Embrace Home
Loans, Inc., that identified Mortgage Electronic Registration
Systems, Inc. as a beneficiary of the deed of trust.
Plaintiffs filed a civil action designated 11 CVS 8772 on
21 September 2011 (“the First Action”) against Defendant Donatus
and the Jeffers Defendants, seeking to have the 21 January 2011
deed set aside on the basis of forgery and to have all
subsequent deeds and deeds of trust in the chain of title
declared null and void, including the ones involving the Jeffers
Defendants. The same day, Plaintiff Bonaventure Okafor filed a
separate civil action designated 11 CVS 10024 (“the Second
Action”) against only Defendant Donatus alleging breach of
fiduciary duty, breach of constructive trust, and fraud.
Defendant Donatus counterclaimed against Plaintiffs for money
owed.
In May 2012, Plaintiffs and Defendant Donatus settled the
First Action and the Second Action, entering into a settlement
agreement (“the Settlement Agreement”). The Settlement
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Agreement provided that Plaintiffs would file a voluntary
dismissal as to both the First Action and the Second Action. In
return, Defendant Donatus agreed to pay $126,000 to Plaintiffs
and to execute a Confession of Judgment against himself so as to
secure his performance under the Settlement Agreement. The
Confession of Judgment was to be held in trust and not filed
unless Defendant Donatus defaulted on his payments. The Jeffers
Defendants were not parties to the Settlement Agreement.
On 25 May 2012, Plaintiffs issued a voluntary dismissal of
the First Action. On 14 June 2012, Defendant Donatus paid
Plaintiffs $30,000 in partial payment of the settlement, which
Plaintiffs accepted and retained. Thereafter, Defendant Donatus
defaulted on the agreement. On 24 October 2012, the Confession
of Judgment was docketed against Defendant Donatus in the amount
of $96,000 as a separate civil action designated 12 CVS 9926
(“the Third Action”). Plaintiffs concurrently filed the present
action designated 12 CVS 10235 (“the Fourth Action”), against
both Defendant Donatus and the Jeffers Defendants, seeking quiet
title relief over the Subject Property. Defendant Donatus filed
an answer on 25 January 2013, but did not mention the
affirmative defense of election of remedies.
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On 6 August 2013, the Jeffers Defendants filed a summary
judgment motion for the Fourth Action claiming the doctrine of
election of remedies barred recovery. This motion was supported
by Defendant Donatus’s Confession of Judgment and $30,000
partial settlement payment; an affidavit by Julia Pendleton
(“the Pendleton Affidavit”), the attorney for Defendant Donatus;
and affidavits by the Jeffers Defendants. On 13 August 2013,
Defendant Donatus also filed a motion for summary judgment on
the basis of settlement and release
On 3 September 2013, a hearing was held on Defendant
Donatus and the Jeffers Defendants’ summary judgment motions.
On 30 September 2013, the trial court granted both motions,
finding there was no genuine issue of material fact, and that
the doctrine of election of remedies barred Plaintiffs from any
additional recovery as a matter of law. The trial court also
treated Defendant Donatus’s summary judgment motion as a motion
to amend his answer to the complaint, thereby incorporating the
doctrine of election of remedies affirmative defense into his
answer. On 2 October 2013, Plaintiffs gave timely written
notice of appeal.
II. Jurisdiction and Standard of Review
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As Plaintiffs appeal from the final judgment of a superior
court, their appeal lies of right to this Court pursuant to N.C.
Gen. Stat. § 7A-27(b) (2013). “Our standard of review of an
appeal from summary judgment is de novo; such judgment is
appropriate only when the record shows that ‘there is no genuine
issue as to any material fact and that any party is entitled to
a judgment as a matter of law.’” In re Will of Jones, 362 N.C.
569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal,
361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). “Under a de
novo review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.”
State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294
(2008) (citation and quotation marks omitted).
III. Analysis
Plaintiffs argue: (1) that they did not intend for the
Settlement Agreement to apply to the current action; (2) that an
attached affidavit within the Jeffers Defendants’ summary
judgment motion was inadmissible because it violated Rule 56(e)
of the North Carolina Rules of Civil Procedure; (3) that
Defendant Donatus did not raise the election of remedies
doctrine as an affirmative defense in his pleadings; and (4)
that Defendant Donatus’s summary judgment motion was not
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properly supported because it contained only unverified
assertions.
A. Election of Remedies
Plaintiffs argue they did not intend for the Settlement
Agreement to release their claim to the Subject Property once
Defendant Donatus defaulted on his payments. Defendants argue
the Settlement Agreement shows Plaintiffs elected a monetary
remedy in full resolution of the First Action and the Second
Action and thus cannot further pursue recovery of the Subject
Property. “The purpose of the doctrine of election of remedies
is to prevent more than one redress for a single wrong.” McCabe
v. Dawkins, 97 N.C. App. 447, 448, 388 S.E.2d 571, 572 (1990).
A plaintiff accepting settlement of an action, or having
judgment rendered on his demand of an action, is a final redress
of that action, regardless of whether the amount of relief is
what plaintiff requested. Id. at 449, 388 S.E.2d at 572. When
a plaintiff has two remedies, he may choose between them, but he
must abide by the result of his choice. Baker v. Edwards & Son,
176 N.C. 229, 233, 97 S.E.2d 16, 17–18 (1918).
The Settlement Agreement between Plaintiffs and Defendant
Donatus states in part:
Whereas Plaintiffs and [Defendant Donatus]
desire to compromise and settle any and all
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disputes arising out of or in any way
connected with the matters described [in the
First Action and the Second Action] and the
issues involved in the [therein . . . ]
Accordingly, it is evident the Settlement Agreement was intended
as a full resolution for the First Action and the Second Action.
Furthermore, both parties agreed that Defendant Donatus paid
$30,000 in partial payment of the settlement of the First Action
and the Second Action; that Plaintiffs accepted and retained
this payment; that Defendant Donatus has confessed judgment in
favor of Plaintiffs according to the Settlement Agreement; and
that Plaintiffs accepted and executed this Confession of
Judgment. Additionally, Plaintiffs acknowledge that the current
action is essentially a refiling of the First Action and stems
from the same wrong of an alleged forged deed.
By accepting and retaining Defendant Donatus’s obligation
under the terms of the Settlement Agreement, Plaintiffs elected
to accept monetary damages as their remedy for the First Action
and the Second Action and are thereby barred from pursuing a
second remedy of acquiring quiet title over the Subject
Property.
When Defendant Donatus failed to make any other payments
under the Settlement Agreement, Plaintiffs executed the
Confession of Judgment for the remaining $96,000 owed, which
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affirmed the terms of the Settlement Agreement as their elected
remedy for the First Action and the Second Action. Plaintiffs’
inability to collect the remaining $96,000 they are owed by
Defendant Donatus does not entitle them to a second remedy for a
wrong they have already resolved.2 See Smith v. Gulf Oil Corp.,
239 N.C. 360, 368, 79 S.E.2d 880, 885 (1954) (holding that a
plaintiff may not have a double redress for a single wrong). If
Plaintiffs recover quiet title over the Subject Property after
(i) negotiating and entering into the Settlement Agreement, (ii)
accepting the Confession of Judgment, and (iii) retaining the
$30,000 partial payment, Plaintiffs would enjoy a double
recovery for a single wrong.
Plaintiffs argue they had two separate causes of action: a
monetary judgment in the Second Action, and a title judgment in
the First Action. However, the Settlement Agreement
incorporated and fully resolved both of these causes of action
by stating its desire to settle any and all disputes concerning
the matters and issues involved in the First and Second Actions.
When Plaintiffs affirmed the terms of the Settlement Agreement,
they forfeited their right to refile the First Action and
collect any different remedy other than the monetary one they
2
The remaining $96,000 owed by Defendant Donatus is the subject
of the Third Action, which is not at issue here.
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already agreed would serve as full compensation for both causes
of action. See Davis v. Hargett, 244 N.C. 157, 163, 92 S.E.2d
782, 786 (1956) (stating that a plaintiff may not keep the
benefit of a negotiated settlement and still recover in a suit
on the same action); Douglas v. Parks, 68 N.C. App. 496, 498–99,
315 S.E.2d 84, 86 (1984) (affirming that the terms of a
settlement bar a plaintiff from suing over the same action). We
affirm the trial court’s judgment.
B. The Pendleton Affidavit
Plaintiffs argue that the Pendleton Affidavit attached to
the Jeffers Defendants’ motion for summary judgment was
inadmissible as evidence because it was not based on Ms.
Pendleton’s personal knowledge, but instead on her beliefs
regarding the intentions and mindset of Defendant Donatus.3
However, Plaintiffs made no objection at the hearing regarding
the admissibility of the Pendleton Affidavit. “In order to
preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not
3
N.C. R. Civ. P. 56(e) states that “affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
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apparent from the context.” N.C. R. App. P. 10(a)(1) (2013).
This Court will only consider pleadings and other filings that
were before the trial court, and appellants are not permitted on
appeal to raise new issues for the first time. See Westminster
Homes, Inc. v. Town of Cary Zoning Bd. Of Adjustment, 354 N.C.
298, 309, 554 S.E.2d 634, 641 (2001); Hoisington v. ZT-Winston-
Salem Assocs., 133 N.C. App. 485, 490, 516 S.E.2d 176, 180
(1999). Therefore, we do not review this issue.
C. Defendant Donatus’s Summary Judgment Motion
1. Affirmative Defense Not in the Pleadings
Plaintiffs allege that Defendant Donatus did not plead the
doctrine of election of remedies as an affirmative defense in
his answer to the original complaint and therefore cannot claim
the doctrine as an affirmative defense during summary judgment.
However, it is settled law that a defendant may raise a defense
for the first time at the summary judgment stage. See N.C.
Nat’l Bank v. Gillespie, 291 N.C. 303, 306, 230 S.E.2d 375, 377
(1976) (“[U]npleaded defenses, when raised by the evidence,
should be considered in resolving a motion for summary
judgment.”).
The trial court may consider evidence of an unpleaded
affirmative defense by either deeming the answer amended to
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conform to the evidence, or by allowing formal amendment of the
answer prior to considering the proof. Gillespie, 291 N.C. at
306, 230 S.E.2d at 377. Here, the trial court chose to do the
former when it treated the summary judgment motion itself as a
motion to amend the answer. Therefore, we hold the trial court
properly considered Defendant Donatus’s affirmative defense of
the election of remedies doctrine during the summary judgment
hearing.
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2. Verification
Plaintiffs also argue that Defendant Donatus’s motion for
summary judgment contains only unverified assertions that
Plaintiffs deny as being true, and therefore the unverified
assertions cannot be enough to support the summary judgment
motion. Summary judgment is appropriate when the record shows
that “there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.” In re
Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)
(quoting Forbis v. Neal, 361 N.C. 519, 523–24, 649 S.E.2d 382,
385 (2007)). A party moving for summary judgment has the burden
of clearly establishing the lack of any triable issue of
material fact by the record properly before the court. Caldwell
v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).
“A contract that is plain and unambiguous on its face will
be interpreted by the court as a matter of law.” Cleland v.
Children’s Home, Inc., 64 N.C. App. 153, 156, 306 S.E.2d 587,
589 (1983). Here, the Settlement Agreement states in part:
Whereas Plaintiffs and [Defendant Donatus]
desire to compromise and settle any and all
disputes arising out of or in any way
connected with the matters described [in the
First Action and the Second Action] and the
issues involved in the [therein . . . ]
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The Settlement Agreement is, on its face, unambiguous and clear
that it was intended to settle and remedy any and all disputes
connected with the First Action and the Second Action. No
additional extrinsic evidence was needed for the trial court to
find, as a matter of law, that Plaintiffs elected their remedy
for the First Action and the Second Action through the
Settlement Agreement.4 Therefore, we hold Defendant Donatus’s
motion for summary judgment was properly supported.
IV. Conclusion
The trial court properly determined that, as a matter of
law, the doctrine of election of remedies bars Plaintiffs from
recovery in the current action and that no genuine issue of
material fact exists in this matter. For the foregoing reasons,
the judgment of the trial court is
AFFIRMED.
Judges STROUD and DILLON concur.
Report per Rule 30(e).
4
Similarly, the Pendleton Affidavit was not required to show
that the Settlement Agreement fully resolved the First Action
and the Second Action.