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SUMMIT DE CORPORATION, AS TRUSTEE FOR ZENITH INVESTMENT GRANTOR TRUST, Plaintiff, v. KWEIDER BROTHERS INC., Kabob Grill, Inc., Omar Kweider, Luz Latorre, Tarek Kweider, Rula Quwaider, and Nabeel Quwaider, Defendants.
Defendant Luz Latorre (“Latorre”) appeals from an order enforcing a mediated memorandum of settlement (the “settlement agreement”) between herself and Plaintiff Summit DE Corporation (“Plaintiff”), trustee for Zenith Investment Grantor Trust. We dismiss this appeal.
I. Factual & Procedural History
On 5 September 2007, Defendant Kabob Grill, Inc. (“Kabob Grill”) entered into a lease agreement with Zenith Investment Grantor Trust to operate a restaurant at StoneCrest at Piper Glen Shopping Center in Charlotte, North Carolina. Latorre, along with Defendants Omar Kweider, Tarek Kweider, Rula Quwaider, and Nabeel Quwaider executed guarantees for the lease. The lease had a term of five years, with an option to renew the lease for an additional five years. Kabob Grill subsequently assigned its rights under the lease to Defendant Kweider Brothers, Inc. (“Kweider Brothers”) on 20 February 2008.
Kabob Grill and Kweider Brothers subsequently failed to make the lease payments, and after demand for payments went unanswered, Plaintiff filed a complaint on 2 November 2016 with the Mecklenburg County Superior Court, seeking to collect money owed under the lease agreement and guarantees. Plaintiff alleged Kweider Brothers failed to pay monthly installments of rent and related charges and fees under the lease, accelerating the remaining rent due under the lease term which was scheduled to end on 28 February 2018. Plaintiff filed an amended complaint on 20 December 2016 to correct the spelling of Latorre's name.
On 1 June 2017, Latorre filed an answer and crossclaim. Latorre's answer included the affirmative defenses of failure to state a claim, estoppel, failure of consideration, laches and statute of limitations, failure to mitigate, and waiver. Latorre's crossclaim was against Defendants Kweider Brothers, Kabob Grill, Omar Kweider, Tarek Kweider, Rula Quwaider, and Nabeel Quwaider for indemnification from any and all amounts Defendants were found obligated to pay Plaintiff.1
By order entered 25 September 2017, the trial court granted summary judgment for Plaintiff against Defendants Kweider Brothers, Kabob Grill, Omar Kweider, Tarek Kweider, Rula Quwaider, and Nabeel Quwaider. The court found these Defendants jointly and severally liable for damages to Plaintiff in the amount of $104,627.22, plus interest, and attorney's fees of $15,694.08.
Plaintiff then filed a separate motion for summary judgment against Latorre on 10 October 2017. Nothing in the record indicates a response by Latorre. Instead of granting the motion for summary judgment, the trial court ordered Plaintiff and Latorre to conduct a mediation settlement conference, which was held on 13 November 2017. Plaintiff and Latorre entered into a settlement agreement, which provided: (1) Latorre would pay Plaintiff $104,627.22, plus interest, and attorney's fees of $15,694.08; (2) the settlement amount would be secured by deeds of trust on three specifically identified parcels of real property owned by Latorre; (3) the amount owed would be payable in full on or before 13 December 2018; (4) Latorre would begin making payments on the settlement amount on 1 February 2018; (5) the settlement amount would also be secured by a confession of judgment executed by Latorre; (6) the settlement payments would be made on the first day of each month, and if not paid by the tenth day of the month, Plaintiff would be permitted to file the confession of judgment; and (7) there would be no penalty for prepayment of the settlement amount. Plaintiff's counsel prepared the confession of judgment and deed of trust and sent them to Latorre for execution, but Latorre did not execute the documents as required by the settlement agreement.
On 8 January 2018, Plaintiff filed a motion to enforce the settlement agreement. After a hearing on 18 January 2018, the trial court entered an order on 22 January 2018, granting Plaintiff's motion to enforce the settlement agreement. The court ordered Latorre to fully abide by the terms of the settlement agreement and deliver within five days of the court's order a signed confession of judgment and deed of trust. The trial court further decreed that violation of its order would be deemed contempt of court. On 31 January 2018, Latorre filed timely notice of appeal from the order enforcing the memorandum of settlement.
On appeal, Latorre contends the settlement agreement with Plaintiff was a “terrible deal” for her, and she thus declined to execute the deed of trust as required by the agreement. Latorre argues the question before this Court is whether the trial court can compel her to comply with the settlement agreement and execute the confession of judgment and deed of trust.
Latorre's appeal from the order enforcing the settlement agreement is incomplete because she did not follow the Rules of Appellate Procedure. Latorre argues on appeal that the settlement agreement was a “terrible deal” for her, but she has not shown she presented her argument to the trial court at the 13 November 2017 hearing on Plaintiff's motion to enforce the settlement agreement. “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[.]” N.C. R. App. P. 10(a)(1) (2019). “Issues ․ in support of which no reason or argument is stated [ ] will be taken as abandoned.” N.C.R. App. P. 28(b)(6) (2019). Latorre also failed to meet the Rules of Appellate Procedure by not providing a transcript of the hearing or a narration of the evidence presented at the hearing with her record on appeal. The record on appeal in civil actions must contain “so much of the litigation ․ as is necessary for an understanding of all issues on appeal, or a statement specifying that the verbatim transcript of proceedings is being filed with the record.” N.C. R. App. P. 9(a)(1)(e) (2019). By failing to establish she presented her argument to the trial court, by failing to support her argument beyond bare assertions, and by failing to provide a transcript, Latorre waived appellate review of this argument.
Even if we reach the merits, Latorre's claims fail. She specifically argues there is no evidence that: (1) the renewal provision for the lease was followed; (2) she signed a guaranty for the lease renewal; (3) she was participating in the business when the renewal occurred; (4) she knowingly and intelligently agreed to the settlement terms; and (5) the equities favored the remedy of specific performance. Latorre, however, did not include with her record on appeal a verbatim transcript of the hearing or a narration of the evidence presented at the hearing. Lacking any record evidence to the contrary, our appellate courts presume the trial court's findings of fact are supported by competent evidence. McKyer v. McKyer, 182 N.C. App. 456, 463, 642 S.E.2d 527, 532, disc. review denied, 361 N.C. 356, 646 S.E.2d 115 (2007).
The trial court's uncontested findings establish that Latorre, along with her counsel, attended a mediated settlement conference with Plaintiff on 13 November 2017. From that mediation, Plaintiff and Latorre entered into a settlement agreement signed by both parties and the mediator. The settlement agreement provided that Latorre owed Plaintiff $104,627.22 in principal and $15,694.08 in attorney's fees, with interest at the legal rate from the date of settlement until paid in full on or before 31 December 2018. To secure payment of the settlement amount, Latorre agreed to execute a deed of trust granting Plaintiff a security interest in three parcels of real property in Mecklenburg County. Latorre also agreed to execute a confession of judgment in the full amount set forth in the settlement agreement. Plaintiff prepared the confession of judgment and deed of trust for Latorre to execute, but she refused to do so. Based on these findings, the trial court concluded the settlement agreement is binding and enforceable on all parties and ordered Latorre to comply with its terms. Latorre was specifically ordered to deliver to Plaintiff a signed confession of judgment and a signed deed of trust.
Latorre also argues the trial court did not balance the equities between the parties before applying the remedy of specific performance. This Court has held:
The sole function of the equitable remedy of specific performance is to compel a party to do that which in good conscience he ought to do without court compulsion. The remedy rests in the sound discretion of the trial court, and is conclusive on appeal absent a showing of a palpable abuse of discretion.
Munchak Corp. v. Caldwell, 46 N.C. App. 414, 418, 265 S.E.2d 654, 657 (1980) (citations omitted), modified on other grounds, 301 N.C. 689, 273 S.E.2d 281 (1981). “[W]here a defendant makes the claim that the specific performance would be inequitable as respects [her], it is incumbent on [her] to establish that fact.” Harborgate Prop. Owners Ass'n v. Mt. Lake Shores Dev. Corp., 145 N.C. App. 290, 295, 551 S.E.2d 207, 211 (2001) (citation and quotation marks omitted), appeal dismissed, 356 N.C. 301, 570 S.E.2d 506, disc. review denied, 356 N.C. 301, 570 S.E.2d 506, and disc. review denied, 356 N.C. 301, 570 S.E.2d 507 (2002). Latorre has not done so.
Latorre's arguments are manifestly unsupported by record facts and therefore frivolous. See N.C. R. App. P. 34(a)(1) (2019).
Because Latorre did not comply with the Rules of Appellate Procedure, and her substantive arguments are frivolous, ex mero motu, we dismiss this appeal.2
Report per Rule 30(e).
1. On 22 January 2018, the trial court entered judgment in favor of Latorre on her cross-claim against Defendants Kweider Brothers, Kabob Grill, Omar Kweider, Tarek Kweider, Rula Quwaider, and Nabeel Quwaider to indemnify her for $120,321.30.
2. In its appellee brief, Plaintiff also asked this Court to “consider imposing a sanction against Latorre for filing and pursuing a frivolous appeal.” Examining this request we note that Latorre appears pro se, and dismissal of her claim is a sanction in itself. Furthermore, Plaintiff did not file a proper motion for sanctions asking for a monetary amount with this Court, and we have no methodology to independently determine what amount, if any, would be appropriate; thus we decline to impose any additional monetary sanctions. See Howerton v. Grace Hosp., 124 N.C. App. 199, 202-03, 476 S.E.2d 440, 443 (1996).
HUNTER, JR., Robert N., Judge.
Judges McGee and Hampson concur.
Response sent, thank you
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Docket No: No. COA18-353
Decided: February 05, 2019
Court: Court of Appeals of North Carolina.
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