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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
MUSLIMA SUBKHANGULOVA (DOWDY);
DIANA SUBKHANGULOVA, a Minor
Child, By and through her
Guardian Ad Litem, G. ELVIN
SMALL, Attorney at Law; and
No. 05 CVS 141
GARY JOSEPH DOWDY, SR.,
Appeal by Defendant from judgment entered 14 November 2005 by
Judge Gary E. Trawick in Dare County Superior Court. Heard in the
Court of Appeals 10 April 2007.
The Twiford Law Firm, P.C., by John S. Morrison, and Baker,
Jones, Daly & Carter, P.A., by Ronald G. Baker and Darlene G.
Chambers, for Plaintiffs.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Adrienne E. Allison, for Defendant.
On 24 April 2001, Muslima Subkhangulova (Muslima) and Gary
Joseph Dowdy, Sr. (Defendant) were married. Muslima had two
children before marrying Defendant, but no children were born of
her marriage to Defendant. On or about 20 July 2004, the couple
separated. On 15 September 2004, Muslima filed a complaint in Dare
County District Court seeking postseparation support, alimony,
divorce from bed and board, equitable distribution of the maritalproperty, and interim distribution of the marital assets. In the
complaint, Muslima alleged, inter alia, that the couple was married
outside the United States in the town of Yoshkar-Ola the Republic
of Mari El and that at the time of the wedding, Defendant
promised that upon bringing [Muslima] to the United States of
America that he would fully and faithfully provide support for her
and her two minor daughters, for at least ten years.
By a second complaint dated 18 February 2005 and filed in Dare
County Superior Court, Muslima and her daughters, Albina
Subkhangulova (Albina) and Diana Subkhangulova (Diana)
(collectively Plaintiffs), brought causes of action against
Defendant for assault, intentional infliction of emotional
distress, seduction and alienation of affections, and breach of
contract. Plaintiffs' complaint alleged, inter alia, that [f]rom
the summer 2002 to spring 2003, the Defendant approached [Albina]
out of the presence of her mother and sister, and on numerous
occasions made lewd and vulgar comments about . . . Albina's
body . . . and . . . did in fact place his hands on Albina's [body]
. . . in a rude and vulgar manner. The complaint alleged further
that [o]n numerous occasions, beginning in the Summer of 2002 and
continuing up until July 20, 2004, the Defendant maintained a
pattern of and practice of illicit sexual relations with the minor
child Diana[.] Additionally, the complaint stated that
[t]he Defendant on at least two occasions in
2004 struck [Muslima] in a violent, rude, and
offensive manner: Once by grabbing [her]
person by the throat and throwing her to the
floor, straddling her body, and pinning her
down as she cried for help from Diana[.]Secondly, by threatening to do her great
bodily harm unless she engaged in sexual
intercourse with the Defendant.
Finally, the complaint alleged that
[d]espite the obligations imposed on the
Defendant by his agreement . . . and the laws
of the United States of America, [through his
sponsorship of Plaintiffs during their
immigration into the United States,] the
Defendant has willfully failed and refused to
provide support to all Plaintiffs as
[required] by law . . . , despite his ability
to do so.
Plaintiffs sought compensatory and punitive damages and attorneys'
On 8 April 2005, Plaintiffs and Defendant purportedly entered
into a settlement agreement (the agreement). By the terms of the
agreement, Defendant agreed to pay $1,500,000.00 to Diana,
$1,250,000.00 to Muslima, and $250,000.00 to Albina by noon on 31
May 2005. In exchange, Plaintiffs agreed that upon receipt of the
payments from Defendant, they would file a voluntary dismissal with
prejudice of the claims pending in Dare County Superior Court.
Additionally, the parties acknowledged that the agreement was a
final and binding release and discharge from
any and all claims, demands, actions, or suits
at law or in equity, contract or tort, or of
any kind or nature, in any manner arising out
of the alleged personal injuries or alleged
breach of contract suffered by the Plaintiffs
as specified in the pleadings.
Furthermore, the agreement provided that
the pending litigation in both the District
and Superior Courts of Dare County shall be
stayed by Plaintiffs and all time periods are
tolled, until June 1, 2005; if as of that date
payment has not been made in full as provided
in this agreement, then Plaintiffs are free topursue all legal remedies in litigation to the
same extent as if this agreement had not been
executed and no tolling agreement existed.
Provided, however, it is specifically
understood that Plaintiffs shall be entitled
to pursue enforcement of this agreement in law
and at equity in addition to such remedies as
are otherwise available to Plaintiffs under
the pending litigation.
With regard to potential criminal proceedings for various
felonious charges pending against Defendant in Dare County
Superior Court, the parties agreed that
[a]s a result of this settlement, the
Plaintiffs . . . will interpose no objection
to the Defendant negotiating any lesser plea,
on a single count or otherwise, and receiving
a suspended sentence for the service of any
active imprisonment, either in whole or in
part, provided any judgment imposed will
require counseling and treatment of the
Defendant as a sex offender, and further
provided, that any suspended sentence
completely prohibits the Defendant from any
contact whatsoever, direct or indirect,
physically or through communication of any
kind, personally or by a third party with the
Plaintiffs, or any one of the Plaintiffs,
except through their counsel. . . .
[Additionally,] nothing in this agreement is
to be construed in any way as making the
settlement contingent upon the outcome of the
criminal litigation. There are no
representations that the Plaintiffs have
complete control over the criminal litigation,
that they will not cooperate fully with the
District Attorney or other authorities, that
they will not testify truthfully if called
upon to do so, nor that they will not make
themselves fully available to the District
Attorney in this cause.
Finally, through the agreement, the parties consented that
[i]n the event that the terms of this
agreement have not been complied with, a copy
of this agreement shall be filed with the
court in each pending civil litigation action.
The parties further agree that this agreementshall form the basis of an appropriate
judgment to be entered by the court in this
action without further contest by either
party. And it is stipulated that this
document is in compliance with the North
Carolina Rules of Civil Procedure as to a
confession of judgment.
Upon a motion for approval, on 14 April 2005, the Honorable J.
Richard Parker approved the settlement agreement as it pertained to
Diana, after finding that the agreement was in the minor's best
interest[.] Additionally, Judge Parker ordered that the Motion
for Approval of this Settlement, the Order, and all exhibits in
support of the same, including the Settlement Agreement, now
approved, be sealed until further Orders of this Court[.]
Defendant failed to make any payments required by the
agreement and, on 21 July 2005, Plaintiffs moved the trial court to
unseal the court file and enter judgment against Defendant for the
sums set forth in the . . . Settlement Agreement[.] On 14
November 2005, the Honorable Gary E. Trawick held a hearing on this
motion, and that same day, Plaintiffs filed the agreement in Dare
County Superior Court. After the hearing, Judge Trawick entered
judgment against Defendant for the sums due Plaintiffs under the
terms of the agreement. In the judgment, Judge Trawick found,
inter alia, that
1. Plaintiffs and Defendant entered into a
Settlement Agreement in this matter . . . .
. . . .
3. The Defendant has failed to comply with
the terms of the Settlement Agreement and has
failed to pay the sums called for therein.
4. In the Settlement Agreement the parties
agreed that Plaintiffs shall be entitled topursue enforcement of the Settlement
5. The Settlement Agreement further provides
that it may be treated as a Confession of
Judgment and that the Court might enter
Judge Trawick then concluded that [t]he Settlement Agreement, by
its terms, is enforceable by this Court and that Plaintiffs are
entitled to judgment in the amounts called for by the Settlement
Agreement. Upon these findings and conclusions, the court ordered
Defendant to pay the sums due Plaintiffs pursuant to the agreement.
Defendant appeals from Judge Trawick's judgment.
(See footnote 1)
For the reasons
set forth herein, we affirm.
Defendant argues the trial court erred in entering judgment
based on the agreement because the agreement is not enforceable
under general contract principles.
(See footnote 2)
Specifically, Defendantcontends the agreement is not enforceable because it was not
properly executed by its express terms as contemplated by the
parties. Defendant also argues there is no evidence that all
parties executed the same instrument, and thus, the agreement is
not enforceable. We disagree.
Settlements negotiated by parties are encouraged by the
courts. PCI Energy Servs., Inc. v. Wachs Technical Servs., Inc.
122 N.C. App. 436, 440, 470 S.E.2d 565, 567 (1996) (citing
Nationwide Mut. Ins. Co. v. Aetna Cas. & Surety Co.
, 1 N.C. App. 9,
159 S.E.2d 268 (1968)). A compromise and settlement agreement
terminating or purporting to terminate a controversy is a contract,
to be interpreted and tested by established rules relating to
contracts. Harris v. Ray Johnson Constr. Co.
, 139 N.C. App. 827,
829, 534 S.E.2d 653, 654 (2000) (citing Fid. & Cas. Co. of N.Y. v.
Nello L. Teer Co.
, 250 N.C. 547, 109 S.E.2d 171 (1959)). It is a
well-settled principle of contract law that a valid contract exists
only where there has been a meeting of the minds as to all
essential terms of the agreement. Northington v. Michelotti
N.C. App. 180, 184, 464 S.E.2d 711, 714 (1995) (citing O'Grady v.
First Union Nat'l Bank of N.C.
, 296 N.C. 212, 250 S.E.2d 587
(1978)). If the plain language of a contract is clear, the
intention of the parties is inferred from the words of thecontract. Walton v. City of Raleigh
, 342 N.C. 879, 881, 467
S.E.2d 410, 411 (1996) (citation omitted).
Although [t]he object of a signature to a contract is to show
assent, . . . the signing of a written contract is not necessarily
essential to its validity. Assent may be shown in other ways, such
as acts or conduct or silence. Burden Pallet Co. v. Ryder Truck
, 49 N.C. App. 286, 289, 271 S.E.2d 96, 97 (1980)
(citations omitted), disc. review denied
, 301 N.C. 722, 276 S.E.2d
282 (1981). Moreover, even when the terms of the contract itself
require showing assent by completing certain procedures, the
circumstances may, however, either amount to a waiver of this
requirement or work an equitable estoppel against the party
seeking to avoid enforcement of the contract. Id.
at 289, 271
S.E.2d at 98.
The agreement at issue here provides that it shall be
executed in counterpart via facsimile to thereafter be
supplemented, in counterpart, by original written signatures of the
parties to be bound. The copy of the agreement included in the
Record on Appeal contains the signatures of Muslima and Albina,
although the notary paragraphs immediately following their
signatures were not completed. The signature of the guardian ad
for Diana is not contained on the copy of the agreement in
(See footnote 3)
Plaintiffs' lawyer signed the agreement, butDefendant's lawyer
(See footnote 4)
did not. Defendant's signature, however,
appears on a facsimile document, this signature was notarized on 8
April 2005, and Defendant concedes in his brief to this Court that
he executed the Agreement via facsimile. Although the Record
does not contain a copy of Defendant's official written
signature and thus, the agreement was not executed as
contemplated by its express terms, from the transcript and record
evidence before us, it is clear that before filing his appeal,
Defendant never contested the validity of his assent to the
parties' agreement. For example, the trial court's order approving
the settlement as it pertained to Diana contains no indication that
Defendant disputed anything other than the substantive allegations
of Plaintiffs' complaint. Furthermore, when the trial court
entered judgment in favor of Plaintiffs based on the agreement,
nothing in the record or transcript indicates that Defendant
objected or argued to the trial court that the agreement was not
valid because the parties had failed to execute the document in
accordance with its terms.
Additionally, because of the parties' agreement, Plaintiffs
delayed pursuit of their tort action against Defendant in Dare
County. Based on the prior acts of Defendant and his trial counsel
throughout the proceedings in the trial court, we hold that
Defendant may not now contest the validity of the settlementagreement. See id.
at 289-90, 271 S.E.2d at 98 (holding that where
the defendant failed to notify [the] plaintiff that the agreement
was rejected and . . . [the] [p]laintiff relied on defendant's
promises contained in the agreement, the acts and conduct by the
defendant [were] substantial evidence that [the] defendant waived
its contract right to have the contract signed pursuant to its
express terms and should be equitably estopped from asserting that
right). To hold otherwise would allow [Defendant] to accept the
benefits of the contract and to avoid its obligations
thereunder[,] which would be unconscionable[.] Id.
at 290, 271
S.E.2d at 98.
Here, as noted above, Defendant never contested the validity
of the parties' agreement before the trial court, and the record
does not show that Plaintiffs were aware of any objection that
Defendant may have had to the agreement. Furthermore, Defendant
was able to reap the benefits of the agreement when Plaintiffs,
relying on Defendant's promise to pay them a fixed amount of money,
delayed pursuing their tort causes of action against him.
Defendant's actions and Plaintiffs' reliance on them support our
holding that Defendant is equitably estopped from asserting any
right to have the contract executed by its express terms.
Accordingly, we overrule this argument.
Since we hold that the agreement was valid based on applicable
principles of contract law, we need not address Defendant's
argument that the settlement agreement is not a valid confession
of judgment under N.C. Gen. Stat. § 1A-1, Rule 68.1. Rather,because we conclude that the settlement agreement is enforceable,
we next address the propriety of the trial court's order requiring
Defendant to comply with the terms of the agreement and pay
$1,250,000.00 to Muslima, $1,500,000.00 to Diana, and $250,000.00
to Albina, plus interest at the legal rate from 31 May 2005 until
paid. We hold that the trial court did not err in enforcing the
Although our courts have not laid down a
precise method for the enforcement of such
agreements, the general rule in other
jurisdictions is that a party may enforce a
settlement agreement by filing a voluntary
dismissal of its original claim and then
instituting another action on the contract, or
it may simply seek to enforce the settlement
agreement by petition or motion in the
State ex rel. Howes v. Ormond Oil & Gas Co.
, 128 N.C. App. 130,
136, 493 S.E.2d 793, 796-97 (1997) (quoting Beirne v. Fitch
, 167 F. Supp. 652, 654 (S.D.N.Y.1958)).
Instead of instituting an action to enforce a
compromise agreement, a [party] who has
already commenced an action on an antecedent
claim may seek to enforce a [compromise] which
was entered into subsequently to the
commencement of the action, and he may have
the compromise enforced simply by moving for
judgment in accordance with the terms of the
compromise. Even where a [party] is seeking
to obtain some form of equitable relief,
rather than a payment of money, he may obtain
a judgment in accordance with the terms of a
compromise agreement and may thereby obtain
whatever performance the [other party] agreed
to in the compromise agreement.
at 136-137, 493 S.E.2d at 797 (quotation marks and citation
omitted). Here, Plaintiffs first filed their suit against
Defendant alleging causes of action for assault, intentionalinfliction of emotional distress, seduction and alienation of
affections, and breach of contract. Thereafter, on 8 April 2005,
the parties reached their settlement agreement by which Defendant
agreed to pay each Plaintiff a fixed amount of money in exchange
for their agreement to forego their civil actions against him.
Defendant then failed to pay Plaintiffs the sums they were entitled
to receive under the terms of the agreement. Once Defendant failed
to make the required contractual payments, Plaintiffs had two
options by which they could seek enforcement of the agreement.
Plaintiffs could (1) take a voluntary dismissal in their original
action against Defendant and then institute a new cause of action
to enforce the settlement agreement, or (2) seek to enforce the
settlement agreement by petition or motion in the original action.
Plaintiffs chose to enforce the agreement by filing a motion
in the cause, and under Howes
, the trial court had the
authority to enforce the agreement. Accordingly, Defendant's
argument that the trial court erred in enforcing the agreement is
For all the reasons stated, the judgment of the trial court is
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
After entry of judgment, pursuant to Rule 60(b) of the North
Carolina Rules of Civil Procedure, Defendant moved the trial court
for relief from judgment. Following a hearing, by order entered 6
February 2006, the Honorable Cy A. Grant denied Defendant's motion.
Defendant appealed from Judge Grant's order denying his Rule 60(b)
motion. In a companion case to the case decided in this opinion,
we affirmed Judge Grant's order. Subkhangulova v. Dowdy
, ___ N.C.
App. ___, ___ S.E.2d ___ (Sept. 4, 2007) (COA06-1112)
In his reply brief, Defendant alleges that the sole basis for
the trial court's decision to enforce the agreement was that the
agreement provides it can be treated as a confession of judgment.
Based on this allegation, Defendant asserts that because the trial
court did not rely on any other legal principles to enforce the
agreement and because Plaintiffs have not cross-assigned as error
the trial court's failure to address other applicable principles of
contract law, we should consider only the application of
confessions of judgment under N.C. Gen. Stat. § 1A-1, Rule 68.1.
However, as discussed above, our interpretation of the trial
court's judgment establishes that Judge Trawick ruled the agreement
was enforceable under its specific terms and general principles ofcontract law. He only noted that the terms of the agreement
provide it may
be treated as a Confession of Judgment[.]
Therefore, we first address the application of general contract
principles to the enforceability of the agreement.
However, we note that by order entered 14 April 2005, Judge
Parker approved the agreement as it pertained to the minor Diana.
Defendant has not appealed from this order.
After the trial court entered judgment in favor of
Plaintiffs, Defendant engaged different counsel to prosecute his
Rule 60(b) motion before the trial court. After the trial court
denied Defendant's Rule 60(b) motion, Defendant again engaged
different counsel to represent him before this Court.
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