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Clark v. Bichsel

Court of Appeals of North Carolina

January 6, 2015

JEANNE A. CLARK, Plaintiff,
v.
RICHARD J. BICHSEL, Defendant

Heard in the Court of Appeals: October 22, 2014.

Appeal by defendant from order entered 23 December 2013 by Judge Lori G. Christian in Wake County District Court, No. 13 CVD 10681.

No brief filed for plaintiff-appellee.

Heidgerd Law Office, LLP, by Eric D. Edwards and Jason E. Spain, for defendant-appellant.

STEELMAN, Judge. Judges CALABRIA and McCULLOUGH concur.

OPINION

Page 146

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

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.

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.,

Page 147

362 N.C. 93, 100-01, 655 S.E.2d 362, ...


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