Opinion
No. COA03-413
Filed 3 February 2004 This case not for publication
Appeal by defendant from judgment entered 10 June 2002 by Judge Wade Barber in Orange County Superior Court. Heard in the Court of Appeals 15 January 2004.
Levine Stewart, by Michael D. Levine, for plaintiff-appellee. Stark Law Group, PLLC, by Gregory S. Connor and Thomas H. Stark, for defendant-appellant.
Orange County No. 00 CVS 766.
Muawyha Samara ("defendant") appeals from a judgment granting Zaidoun Bazzari ("plaintiff") specific performance of a contract of sale between the parties. After defendant filed this appeal, plaintiff moved to dismiss the appeal as moot. Both parties fully complied with the trial court's judgment prior to appeal, and the issues in controversy have been settled. We grant plaintiff's motion to dismiss this appeal as moot.
I. Background
Plaintiff filed an unverified complaint against defendant alleging that the parties entered into a contract for sale of the Pittsboro Subway and requested the trial court to order defendantto specifically perform his obligations under the contract and transfer the franchise. Defendant denied plaintiff's allegations in his answer and asserted defenses.
Following a bench trial, the trial court entered judgment on 10 June 2002, granting plaintiff specific performance and ordering plaintiff to remit the remainder of the balance owed on the promissory note to defendant. Defendant was ordered to go to the Subway franchiser and sign all franchise transfer agreements within seven (7) days of the entry of judgment. The judgment also required defendant to pay all costs incurred as a result of this action.
Both parties complied with the judgment. Defendant executed a limited power of attorney allowing transfer of the Pittsboro Subway franchise to plaintiff. Defendant accepted a check on 24 June 2002, from the Orange County Clerk of Court in the amount of $16,303.53, the amount due under the judgment after costs had been paid, and subsequently negotiated the instrument. Defendant filed a notice of appeal on 10 July 2002, thirty days after entry of the judgment.
II. Motion to Dismiss
Plaintiff filed a motion to dismiss the appeal and for sanctions pursuant to N.C.R. App. P. 34. Plaintiff argues the matters in controversy have been settled and that this appeal is moot. "As a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist." Kendrick v. Cain, 272 N.C. 719,722, 159 S.E.2d 33, 35 (1968). Although the issues in Kendrick are not identical, its relevancy and application here is appropriate because the Court dismissed the appeal as moot after the appellant had accepted the full amount of the judgment. Our Supreme Court noted:
[a] party who accepts an award or legal advantage under an order, judgment, or decree ordinarily waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted. This is so even though the judgment, decree, or order may have been generally unfavorable to the appellant.
Id. (citation omitted). In dismissing the appeal, the Court gave insight into what factors we should consider in determining whether the appeal is moot: "the subject of the litigation has been disposed of by entry of judgment and satisfaction has been obtained by plaintiff by acceptance of the amount awarded by the judgment. Upon acceptance of the `fruits of the judgment' plaintiff's action against defendant Cain was extinguished." Id.
Here, defendant accepted the benefit of the judgment by receiving and negotiating the check from the Clerk of Court. He subsequently signed a limited power of attorney, which led to the franchise transfer according to the terms of the judgment. He did not seek or move to stay execution of judgment pending appeal pursuant to N.C.R. Civ. P. 62. Defendant argues his financial difficulties prevented him from filing such a motion. However, he had the option of applying to the trial court for a reduced bond. Defendant did not make notice of appeal until the last day allowed under our Rules of Appellate Procedure. N.C.R. App. P. 3 (2003). Considering these actions collectively, defendant clearly accepted the "fruits of the judgment" and extinguished the matter in controversy. Kendrick, 272 N.C. at 722, 159 S.E.2d at 35. Plaintiff's motion to dismiss is granted.
III. Conclusion
Both plaintiff and defendant fully performed their obligations under the court's judgment. The issues raised on appeal are moot. We grant plaintiff's motion to dismiss and deny his motion for sanctions.
Dismissed.
Judges Hudson and Steelman concur.