McArdle Corp. v. Patterson

445 S.E.2d 604, 115 N.C. App. 528, 1994 N.C. App. LEXIS 713
CourtCourt of Appeals of North Carolina
DecidedJuly 19, 1994
Docket9310SC1068
StatusPublished
Cited by8 cases

This text of 445 S.E.2d 604 (McArdle Corp. v. Patterson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McArdle Corp. v. Patterson, 445 S.E.2d 604, 115 N.C. App. 528, 1994 N.C. App. LEXIS 713 (N.C. Ct. App. 1994).

Opinions

LEWIS, Judge.

Plaintiff commenced this action to recover a deficiency judgment against defendants resulting from the foreclosure sale of property, which had been security for a promissory note guaranteed by defendants. After a bench trial, judgment was for the plaintiff, and defendants appeal.

The action was originally begun by plaintiffs predecessor in interest, First Federal Savings and Loan Association of Raleigh (hereinafter “First Federal”), in September 1990 before Judge George Greene. The action arose from defendants’ guaranty of payment of a promissory note given by G.A.D. Development Company, Inc. (hereinafter “G.A.D.”) to First Federal. The principal amount of the note was $161,000.00, and the note was secured by a deed of trust on property owned by G.A.D. in Wake County (hereinafter “the property”). G.A.D. defaulted on the note, leaving a balance owed of $161,444.61. At the foreclosure sale the property brought $110,400.00, with $108,995.00 being applied to G.A.D.’s obligation. As of 11 September 1990, the amount owing on the note after application of the proceeds of the foreclosure sale was $62,889.22. v_

Defendants answered the complaint and alleged as a defense that they did not receive proper notice of the foreclosure hearing, as required under N.C.G.S. § 45-21.16 (Cum. Supp. 1993), and that therefore, pursuant to section 45-21.16(b)(2), they were not liable for the deficiency. Thereafter, defendants moved for summary judgment. On 4 February 1991, Judge Greene denied defendants’ motion for summary judgment. In the order denying summary judgment, Judge Greene made “findings of fact” and “conclusions of law.” Among the findings of fact were findings that there were no genuine issues of material fact; that plaintiff attempted to mail legal notice of the foreclosure hearing to defendants by certified mail, return receipt requested, at their then-known address; that defendants did not receive the attempted mailing; that plaintiff’s attempt to serve defendants by certified mail was a reasonable and diligent effort to serve defendants; and that plaintiff achieved proper service of notice by posting a notice on the property. Judge Greene concluded that defendants were properly notified of the foreclosure hearing as [530]*530required by section 45-21.16(b)(2) and that plaintiff was entitled to proceed against defendants for the deficiency.

Defendants appealed Judge Greene’s order, and this Court dismissed the appeal as interlocutory in an unpublished opinion, reported as First Federal Savings & Loan Ass’n v. Patterson, 104 N.C. App. 138, 408 S.E.2d 764 (1991). The case was then scheduled for trial before Judge Donald Stephens. Before trial, Judge Stephens determined, as a matter of law, that by virtue of Judge Greene’s order, he was precluded from considering the issue of whether defendants received adequate notice of the foreclosure hearing. Judge Stephens then proceeded to trial without a jury on plaintiff’s claim, and judgment was subsequently entered against defendants. Defendants gave notice of appeal from the judgment entered by Judge Stephens.

On appeal, defendants contend that (1) Judge Greene erred in denying defendants’ motion for summary judgment and in granting partial summary judgment in favor of plaintiff, (2) Judge Greene erred in making findings of fact and conclusions of law in addressing a motion for summary judgment, and (3) Judge Stephens erred in determining that he was precluded from considering the issue decided by Judge Greene in the order denying defendants’ motion for summary judgment.

I.

The order of Judge Greene purports to be nothing more than a denial of defendants’ motion for summary judgment. However, in light of Judge Greene’s conclusion that defendants received adequate notice and that plaintiff was therefore entitled to proceed against defendants for the deficiency, the order became, in effect, a grant of partial summary judgment in favor of plaintiff on the issue of defendants’ defense of inadequate notice.

Plaintiff contends that defendants have not properly appealed Judge Greene’s order, as defendants only gave notice of appeal from the judgment of Judge Stephens. However, Judge Greene’s order stated that it was a denial of defendants’ motion for summary judgment, and the general rule is that where there has been a trial on the merits, it is not proper to appeal the denial of a motion for summary judgment. Munie v. Tangle Oaks Corp., 109 N.C. App. 336, 340, 427 S.E.2d 149, 151 (1993). Thus, it is understandable that defendants did not give notice of appeal from the order of Judge Greene. However, because we conclude that Judge Greene’s order was in actuality both [531]*531a denial of defendants’ motion and a grant of partial summary judgment for plaintiff, in our discretion we will review Judge Greene’s order.

II.

Defendants’ first contention is that Judge Greene erred in making findings of fact and conclusions of law in his order denying their motion for summary judgment. Defendants are correct that it is not the function of the trial court to make findings of fact and conclusions of law on a motion for summary judgment. Capps v. City of Raleigh, 35 N.C. App. 290, 292, 241 S.E.2d 527, 528 (1978). However, in some instances, it can be helpful for the trial court to set out the undisputed facts which form the basis of its judgment. Id. at 292, 241 S.E.2d at 529. When that appears helpful or necessary, the court should state that the facts set out are the undisputed facts. Id. In the case at hand, Judge Greene merely listed the undisputed facts, stating that there were no genuine issues of material fact. We do note that the label “findings of fact,” as used by Judge Greene, could be misleading in that it tends to imply that the facts were disputed. See A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 275, 247 S.E.2d 800, 803 (1978), rev’d on other grounds, 298 N.C. 207, 258 S.E.2d 244 (1979). However, the facts were not in dispute, and we conclude that Judge Greene’s recitation of the facts was not error.

III.

Defendants next argue that Judge Greene’s order was not binding on Judge Stephens. As stated above, Judge Greene’s order was, in effect, both a denial of defendants’ motion for summary judgment and a grant of partial summary judgment in favor of plaintiff. We note that summary judgment can be entered in favor of the non-movant in appropriate cases. N.C.G.S. § 1A-1, Rule 56(c); Federal Land Bank v. Lackey, 94 N.C. App. 553, 554, 380 S.E.2d 538, 539 (1989), aff’d per curiam, 326 N.C. 478, 390 S.E.2d 138 (1990).

As to the effect of one judge’s order on another judge, our Supreme Court has stated:

The well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another’s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.
[532]*532Whitley’s Elec. Serv., Inc. v. Walston, 105 N.C. App.

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McArdle Corp. v. Patterson
445 S.E.2d 604 (Court of Appeals of North Carolina, 1994)

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Bluebook (online)
445 S.E.2d 604, 115 N.C. App. 528, 1994 N.C. App. LEXIS 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcardle-corp-v-patterson-ncctapp-1994.