An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
                                             -2-
       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.
                                           -3-
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
                                        -4-
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.
                                           -5-
     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
                                        -6-
       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
                                    -7-
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
                                         -8-
            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
                                       -9-
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.
                                              -10-
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.”
                                        -11-
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
                              -12-
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.
                                          -13-
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 . . . ]
                                    -14-
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.
