                              NO. COA14-577

                    NORTH CAROLINA COURT OF APPEALS

                         Filed: 6 January 2015


JEANNE A. CLARK,
     Plaintiff,

    v.                                  Wake County
                                        No. 13 CVD 10681
RICHARD J. BICHSEL,
     Defendant.


    Appeal by defendant from order entered 23 December 2013 by

Judge Lori G. Christian in Wake County District Court.         Heard in

the Court of Appeals 22 October 2014.


    No brief filed for plaintiff-appellee.

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


    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
                                          -2-
       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.
                                        -3-
    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., 362 N.C. 93,

100-01, 655 S.E.2d 362, 369 (2008)).

                                 B. Analysis
                              -4-
    Defendant contends that the trial court’s findings of fact

numbers 2, 8, 10, 12, and 14 are unsupported by and contrary to

the evidence presented at trial.    The trial court specifically

found that:

         2.   The parties had a verbal agreement that
         they would each pay half the rent on said
         apartment.

         . . .

         8.   Plaintiff relied on Defendant's verbal
         agreement that the parties would to pay half
         of the rent for the term of the lease. The
         lease expired on September 1, 2013.

         . . .

         10. Plaintiff could not pay the entire rent
         without Defendant's commitment to pay half
         the rent.

         . . .

         12. Plaintiff     relied    on     Defendant's
         commitment to pay half the rent.

         . . .

         14. Plaintiff     relied    on     Defendant's
         commitment to pay half the rent.

    At trial, plaintiff stated that:

         The defendant and I signed a lease to
         establish residency together and it was a
         12-month lease. And our agreement was to
         split the rent and expenses, which we did
         for four months, until he decided to
         establish residency elsewhere.
                                     -5-
       Defendant   later     testified,    when    discussing   how   he    and

plaintiff had planned to divide the rent:

            We were gonna split the rent and half the
            utilities while we were living together.

       Given that both plaintiff and defendant testified that they

agreed to divide the rent, we hold that there was evidence in

the record to support the trial court’s finding that the parties

made a verbal agreement to divide the rent.

       Plaintiff   further    testified    that,    after   defendant      moved

out:

            I said I wasn't going to move out because I
            was financially bankrupt at that point. I
            wasn't -- I didn't have any other option but
            to stay there. I wasn't --

            Q      You thought --

            A    I didn't have the money to establish a
            new residence.

            Q    Did you at that point talk to the
            leasing company, the landlord about trying
            to get out of the lease?

            A    No. He did mention that. I can't
            remember if he paid like three months rent
            that we could get out of it. But as I just
            stated, I did not have the cash to do that.
            And he didn't offer to do that.

       Plaintiff’s repeated statements that she lacked the funds

to move, and that she was financially bankrupt, tend to support

a finding that she lacked the funds to pay the remaining rent,
                                      -6-
and that she relied on defendant’s assurance that he would pay

half of the rent.     We hold that the trial court’s findings were

supported by competent evidence.

    Defendant     further       contends    that     the      trial     court’s

conclusions of law based upon these findings were in error,

because the findings were improper.           As we have held that these

findings were supported by competent evidence, we hold that the

conclusions of law based thereon were also proper.

    This argument is without merit.

                 III. Failure to Mitigate Damages

    In his second argument, defendant contends that the trial

court erred in failing to make findings concerning plaintiff’s

failure to mitigate damages.          Because defendant failed to raise

this affirmative defense at trial, this argument is dismissed.

                         A. Standard of Review

    “[A]    party’s   failure    to   properly     preserve    an     issue   for

appellate   review    ordinarily      justifies    the   appellate      court’s

refusal to consider the issue on appeal.” Dogwood Dev. & Mgmt.

Co. v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d

361, 364 (2008); see also N.C. R. App. P. 28(b)(6).

                                B. Analysis
                                                -7-
       Defendant contends that plaintiff should have attempted to

renegotiate         her     lease        after        defendant’s         departure,        that

plaintiff’s failure to do so constitutes a failure to mitigate

damages,      and    that       the    trial    court       erred   in    failing    to     make

findings with respect to mitigation.

       Failure to mitigate damages is an affirmative defense.                                See

e.g. Elm St. Gallery, Inc. v. Williams, 191 N.C. App. 760, 762,

663 S.E.2d 874, 875 (2008).                    “The [breaching] defendants [bear]

the burden of proof on [their] affirmative defense that [the

nonbreaching         party]      failed    to     mitigate      its      damages.”        Kotis

Props.,    Inc.      v.    Casey's,       Inc.,       183    N.C.   App.    617,     623,    645

S.E.2d 138, 142 (2007).                 In the instant case, defendant made no

argument at trial concerning plaintiff’s failure to mitigate.

“A contention not raised in the trial court may not be raised

for the first time on appeal.”                    Creasman v. Creasman, 152 N.C.

App.   119,    123,       566    S.E.2d    725,       728    (2002)      (quoting     Town    of

Chapel Hill v. Burchette, 100 N.C. App. 157, 159-60, 394 S.E.2d

698, 700 (1990)); see also N.C. R. App. P. 10(a)(1).

       We hold that defendant’s failure to raise the issue of

mitigation      at    trial       waives       that    issue    for      appellate    review.

This argument is dismissed.

                                      IV. Money Judgment
                                         -8-
         In his third argument, defendant contends that the trial

court erred in ordering defendant to pay a money judgment within

60 days.      We agree.

                            A. Standard of Review

         “Issues   of   statutory    construction    are     questions   of    law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

                                    B. Analysis

         Plaintiff brought this action against defendant seeking a

money judgment.          Money judgments are generally controlled by

N.C. Gen. Stat. § 1-302, which provides that:

             Where a judgment requires the payment of
             money or the delivery of real or personal
             property it may be enforced in those
             respects by execution, as provided in this
             Article. Where it requires the performance
             of any other act a certified copy of the
             judgment may be served upon the party
             against whom it is given, or upon the person
             or officer who is required thereby or by law
             to obey the same, and his obedience thereto
             enforced. If he refuses, he may be punished
             by the court as for contempt.

N.C. Gen. Stat. § 1-302 (2013).                We have previously held that,

as   a    general   rule,    once    a   judgment    fixes    the   amount     due,

execution, not contempt, is the appropriate proceeding.                       Brown

v. Brown, 171 N.C. App. 358, 361, 615 S.E.2d 39, 41 (2005).                      In

the instant case, the trial court                 ordered payment within 60
                                     -9-
days, which was not authorized by N.C. Gen. Stat. § 1-302, and

was in error.

     We   vacate   the     portion   of     the   trial   court’s   judgment

requiring defendant to pay the judgment within 60 days.                    Upon

remand,   plaintiff      may   attempt     to   enforce   the   judgment    in

accordance with the provisions of Article 28 of Chapter 1 of the

General Statutes.1

     AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART.

     Judges CALABRIA and McCULLOUGH concur.




1
  We further note that pursuant to N.C. Gen. Stat. § 1-305(b),
the Clerk of Superior Court is not authorized to issue execution
until the provisions of that statute have been complied with.
