Jacokes v. APM Builders, Inc.

• Court: Court of Appeals of North Carolina
• Decided: July 29, 2014
• Docket: 13-1329
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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- -2- 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 -3- 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 -4- 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 -5- 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). -6- 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 -7- 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 -8- 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. -9- 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 -10- 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. -11- 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).