Opinion
No. COA12–1519.
2013-07-16
Joann W. BRITT and husband H.L. Britt, and Estate of Mary W. Boughton, Plaintiffs, v. Dallas M. WEST and wife Patsy B. West, and Douglas H. West and wife Judy A. West, and Billy R. Godwin, Jr., Administrator C.T.A., Defendants.
Doster, Post, Silverman & Foushee, P.A., by Jonathan Silverman, for plaintiffs-appellants. Ryan McKaig Attorney at Law PLLC, by Ryan McKaig, for defendants-appellees.
Appeal by plaintiffs from order entered 17 September 2012 by Judge A. Robinson Hassell in Harnett County Superior Court. Heard in the Court of Appeals 6 May 2013. Doster, Post, Silverman & Foushee, P.A., by Jonathan Silverman, for plaintiffs-appellants. Ryan McKaig Attorney at Law PLLC, by Ryan McKaig, for defendants-appellees.
MARTIN, Chief Judge.
JoAnn W. Britt, Mary W. Boughton, Dallas M. West and Douglas H. West are the children and beneficiaries of the late Emmer Cinelli West. After Cinelli West's will was admitted to probate in 2005, plaintiffs JoAnn W. Britt and Mary W. Boughton, who are Cinelli West's daughters, brought an action alleging several claims for relief and seeking a declaratory judgment against defendants Dallas W. West and Douglas H. West, who are Cinelli West's sons, their wives, and Billy R. Godwin, Jr., Administrator C.T.A. of Cinelli West's estate (collectively “defendants”). JoAnn Britt's husband, H.L. Britt, was subsequently added as a party plaintiff and, upon Mary Boughton's death, her estate was substituted as a party plaintiff.
Cinelli West's will contained, inter alia, provisions disposing of several tracts of land. Item VI provided that a tract of land deemed the “Hayes Tract” was to be split between Dallas West and JoAnn Britt. Item VIII listed three other tracts of land (herein referred to as “tracts 1, 2, and 3”), all of which were to be “equally divided among [Cinelli West's] four children heretofore named” if possible, and if not, her executor was to “sell the same according to a judicial sale and divide the proceeds in equal proportions among [her] four children.”
On 14 October 2008, Judge Gregory Weeks in Harnett County Superior Court entered a consent order which appointed plaintiffs' counsel, Jonathan Silverman, and defendants' counsel, Gerald W. Hayes, Jr., as co-commissioners to sell tracts 1, 2, and 3 pursuant to the Judicial Sales Act, Chapter One, Article 29A of the North Carolina General Statutes. Specifically, the order provided that tracts 1 and 2 should be sold at such time as there was a final order of division of the Hayes Tract.
Although the Hayes Tract had not yet been divided, the co-commissioners filed a notice of sale at the Harnett County Courthouse on 6 January 2011; the sale was not actually conducted until 7 March 2011. A notice of upset bid in the amount of $183,750 .00 was filed by Andrew Ruhland for the purchase of tract 1 on 18 April 2011; one was filed for tract 2 by defendant Douglas West in the amount of $125,000.00 on 9 May 2011.
Defendants demanded that Ruhland close on tract 1 in May 2012 but, having decided that the judicial sale was invalid because it was conducted prior to the division of the Hayes Tract, plaintiffs' attorney refused to tender a deed to Ruhland even though the sale had been agreed upon by all parties. On 30 May 2012, defendants filed a motion asking the trial court to authorize the resale of tract 1 because Ruhland, the highest bidder, had not complied with his bid and closed on the property.
On 13 June 2011, plaintiffs' counsel informed defendants' counsel that a finalized survey of the Hayes Tract was required before defendant Douglas West would be permitted to close on tract 2. The deed was to be held in trust until the survey was completed. Finally, on 17 January 2012, Judge Weeks ordered the Hayes Tract to be divided between JoAnn Britt and Dallas West consistent with the co-commissioner's report and survey of the property.
On 27 August 2012, plaintiffs filed a motion to vacate and re-advertise the sale of tracts 1 and 2, arguing that the sale did not comply with the consent order and was therefore invalid. The trial court entered orders confirming the sale of tracts 1 and 2 on 17 September 2012. Plaintiffs filed a notice of appeal on 24 September 2012 from the orders of confirmation.
On 15 October 2012, a hearing was held on defendants' 30 May 2012 motion for resale of tract 1 and plaintiffs' 27 August 2012 motion to vacate the sale of both tracts. In an order entered 24 October 2012, the trial court granted defendants' motion to resell tract 1 and denied plaintiffs' motion to vacate the sale of tracts 1 and 2. Plaintiffs then filed an “amended notice of appeal” on 5 November 2012 purporting to appeal from both the orders of confirmation and the court's order on plaintiffs' and defendants' motions.
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On appeal, plaintiffs contend the trial court erred in confirming the sale of tracts 1 and 2 which were conducted before the division of the Hayes Tract as required by the 14 October 2008 order and confirming the sale of tract 1 to Andrew Ruhland since he had not been tendered a deed. Plaintiffs also contend the trial court erred by concluding in its 24 October 2012 order granting defendants' motion to resell that the plaintiffs are estopped to assert any noncompliance with the order of the court on 14 October 2008 and the Judicial Sales Act.
Because plaintiffs filed a notice of appeal from the orders of confirmation before the trial court had ruled on their motion to vacate the sale of tracts 1 and 2 and defendants' motion to resell tract 1, the trial court was divested of jurisdiction to rule on those motions. See Dalenko v. Peden Gen. Contr'rs, Inc., 197 N.C.App. 115, 121–22, 676 S.E.2d 625, 630 (2009) (“When a party gives notice of appeal from an appealable order, the trial court is divested of jurisdiction and the related proceedings are stayed in the lower court. In such instances, the trial court has no authority to proceed with the trial of the matter.” (citations omitted)), appeal dismissed,363 N.C. 801, 690 S.E.2d 534,cert. denied,363 N.C. 854, 694 S.E.2d 202 (2010). Since the trial court had no jurisdiction to enter the 24 October 2012 order, it must be vacated.
With respect to plaintiffs' appeal from the orders of confirmation, under N.C.G.S. § 1–339.28(a), “[i]f a public sale is ordered by a judge of the Superior Court Division, it may thereafter be confirmed by a resident superior court judge of the district or a superior court judge regularly holding the courts of the district.” N.C. Gen.Stat. § 1–339.28(a)(1) (2011). “Confirmation of a judicial sale is a matter within the discretion of the court.” In re Thomas, 290 N.C. 410, 429, 226 S.E.2d 371, 383 (1976). Of course, “the discretion must be exercised reasonably and not arbitrarily” and thus, the sale should be “free from deception and unfair advantage.” Con–EsTee Chem. Co., Inc. v. Long, 184 N.C. 398, 399, 114 S.E. 465, 465 (1922).
Here, the 14 October 2008 consent order, agreed to by all parties and entered by the trial court, appointed Gerald W. Hayes, Jr., defendants' counsel, and Jonathan Silverman, plaintiffs' counsel, as co-commissioners empowered to sell tracts 1 and 2. Hayes and Silverman jointly filed a “Notice of Sale” on 6 January 2011 in which they agreed that tracts 1 and 2 would be offered for sale to the highest bidder on 31 January 2011 at 10:00 a.m. at the courthouse door in Lillington, North Carolina. Hayes and Silverman filed another “Notice of Sale” in February in which they agreed that the sale would take place on 7 March 2011 instead. The sale was actually conducted that day with the knowledge of all parties and the participation of both attorneys. Nine upset bids were filed in the time allowed by law with regard to tract one; seven upset bids were filed with regard to tract 2. The final upset bid for tract 1 was filed by Andrew Ruhland for $183,750.00. The final upset bid for tract 2 was filed by Douglas H. West for $125,0000.00.
In confirming the sale of both tracts, the trial court found that each “appear [ed] to the [c]ourt from [the co-commissioner's] report and from said proof offered that said price is fair and adequate and that it is for the best interest of said estate that said sale be confirmed.” Plaintiffs have not challenged any of the trial court's findings or its conclusion in the orders of confirmation. Plaintiffs merely argue that the confirmation orders were improper because the judicial sale, although actively participated in by both attorneys, was conducted prior to the division of the Hayes Tract, as was specified in the 2008 consent order. Plaintiffs cite no authority suggesting how this would make the sale of tracts 1 and 2 invalid. Thus, for the above reasons, we find no error with the trial court's orders of confirmation.
Affirmed in part, vacated in part. Judges BRYANT and DAVIS concur.
Report per Rule 30(e).