Townsend v. Simmons

• Court: Court of Appeals of North Carolina
• Decided: August 5, 2014
• Docket: 13-1320
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA13-1320 NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

CHARLES E. TOWNSEND and wife, MARY J. TOWNSEND, Petitioners,

v. Guilford County No. 12 SP 555 CELESTINE L. SIMMONS, CITY OF GREENSBORO, and CITIMORTGAGE, INC., Respondents.

Appeal by Respondent from order entered 6 June 2013 by

Judge Susan E. Bray in Guilford County Superior Court. Heard in

the Court of Appeals 24 April 2014.

Celestine L. Simmons, Pro se.

No brief filed by Petitioners.

DILLON, Judge.

Celestine L. Simmons appeals from an order of the superior

court affirming the clerk of court’s order denying her petition

to revoke the clerk of court’s previous order confirming a sale,

in lieu of partition, of certain real estate. For the following

reasons, we affirm. -2- I. Factual & Procedural Background

Ms. Simmons and her brother Charles E. Townsend own a

single-family residence in a residential neighborhood in

Greensboro (the “Property”) as tenants in common. Ms. Simmons

lives in the Property. On 24 January 2012, Mr. Townsend and

his wife, both of whom live out of state, commenced this

proceeding seeking the judicial sale, in lieu of partition, of

the Property. Mr. Townsend also named the City of Greensboro

(“City”) and CitiMortgage, Inc. (“CitiMortgage”) as parties to

this proceeding since they held security interests (the “Liens”)

in the Property. In his petition, Mr. Townsend alleged that due

to the size and use of the Property, an actual partition of the

Property could not be made without injury to him and Ms. Simmons

and, therefore, requested an “order that the Property be sold”

and that any net proceeds be divided between him and Ms.

Simmons.

Ms. Simmons, CitiMortgage, and the City timely filed

answers, and the matter came on for hearing before the Clerk of

the Superior Court of Guilford County on 7 August 2012. On 15

August 2012, the clerk of court entered an order determining

that Mr. Townsend was entitled to the requested relief and

appointed a sales commissioner (the “Commissioner”) to sell the -3- Property at public auction, but did not direct that the Property

be sold subject to the Liens. Ms. Simmons appealed this order

to the superior court.

On 7 December 2012, the superior court entered an order

affirming the clerk of court’s order “in all respects” and

remanding the matter to the clerk of court for supervision of

the sale of the Property.

On 21 December 2013, the Commissioner gave notice that the

Property would be auctioned on 24 January 2013. In the notice,

the Commissioner stated that the Property would be sold subject

to the Liens.

On 24 January 2013, the Property was sold at public auction

to BMS Investment Properties, LLC (BMS), “the last and highest

bidder for the [Property] in the amount of [$2,500.00].” On 4

March 2013, the clerk of court entered an order confirming the

sale to BMS, indicating that the sale was made subject to the

Liens.

On 14 March 2013, Ms. Simmons filed a petition seeking

revocation of the clerk’s confirmation order. The clerk of

court entered an order denying Ms. Simmons’ petition on 9 April

2013. Ms. Simmons appealed to the superior court, which, by

order entered 6 June 2013, affirmed the clerk of court’s -4- decision to deny Ms. Simmons’ petition. From this order, Ms.

Simmons appeals.

II. Analysis

Appellate Rules Violations

Preliminarily, we note Ms. Simmons’ failure to comply with

several provisions our Rules of Appellate Procedure. The

“Statement of the Facts” section of Ms. Simmons’ appellant brief

is argumentative in violation of N.C.R. App. P. 28(b)(5)

(providing that the statement of facts should consist of a “non-

argumentative summary of all material facts”). Moreover, none

of Ms. Simmons’ arguments is preceded by the applicable standard

of review, in violation of N.C.R. App. P. 28(b)(6) (providing

that an appellant’s arguments “shall contain a concise statement

of the applicable standard(s) of review for each issue”), and,

as indicated below, Ms. Simmons has failed to present authority

and/or supportive reasoning for several of her arguments, see

id. (providing that “[t]he body of the argument . . . shall

contain citations of the authorities upon which the appellant

relies”). Notwithstanding these deficiencies, however, we

proceed to address the merits of Ms. Simmons’ appeal.

Merits of Ms. Simmons’ Appeal -5- Ms. Simmons argues that the superior court erred in

affirming the clerk of court’s order denying her petition to

revoke confirmation of the sale of the Property to BMS.

“[A] tenant in common is entitled, as a matter of right, to

the partition of the lands so that he may enjoy his share in

severalty.” Kayann Properties, Inc. v. Cox, 268 N.C. 14, 19,

149 S.E.2d 553, 556 (1966). “If, however, an actual partition

cannot be made without injury to some or all of the parties

interested, he is equally entitled to a partition by sale[.]”

Id. at 19, 149 S.E.2d at 557 (citing N.C. Gen. Stat. § 46-22).

In this proceeding, Mr. Townsend sought a “partition by

sale” in lieu of an actual partition. The procedure for

conducting a “partition by sale” – as set forth in N.C. Gen.

Stat. § 46-22 et seq. – places the burden on the owner seeking a

sale in lieu of partition to show “by the preponderance of the

evidence” that “an actual partition of the [property] cannot be

made without substantial injury to any of the interested

parties[.]” N.C. Gen. Stat. § 46-22(a); Kayann, 268 N.C. at 19,

149 S.E.2d at 557 (providing that “the burden is on him who

seeks a sale in lieu of actual partition to allege and prove the

facts upon which the order of sale must rest”). Here, the clerk

of court determined that Mr. Townsend met his burden, stating in -6- a 2012 order that “[t]he nature and size of the Property is such

that an actual partition thereof cannot be made without

substantial injury to the parties [and that the] best interests

of the parties would be promoted by a sale of the Property[.]”

Further, Ms. Simmons has not appealed this 2012 order to this

Court and has conceded in her brief that “an actual partition of

the [] Property would have caused substantial injury to the

[parties].”

Ms. Simmons does argue, however, that the clerk of court

should have granted her petition to revoke the confirmation of

the sale conducted by the Commissioner to BMS pursuant to N.C.

Gen. Stat. § 46.28.1(a)(2)c. Specifically, our General Statutes

provide that once the auction has taken place, the Commissioner

may not deed the property to the successful buyer until the sale

has been confirmed by the court. N.C. Gen. Stat. § 46-28. Our

General Statutes further provide that even after a sale has been

confirmed by the court, a party may still challenge the sale by

petitioning the court to revoke confirmation of the sale within

fifteen days of the confirmation order. N.C. Gen. Stat. § 46-

28.1. However, a petition to revoke the confirmation of the

sale must be based on one of the three grounds delineated in -7- N.C. Gen. Stat. § 46-28.1(a)(2).1 Moreover, the petitioning

party bears the burden of demonstrating that the asserted ground

for challenging the sale exists by a preponderance of the

evidence. N.C. Gen. Stat. § 46-28.1(d). Accordingly, in the

present case the burden was on Ms. Simmons to prove that the

amount bid by BMS was inadequate and inequitable and would

result in irreparable damage to her and Mr. Townsend. See

Kayann, 268 N.C. at 19, 149 S.E.2d at 557.

Ms. Simmons asserts that the bid of $2,500.00 for the

Property was “inadequate and inequitable and will result in

irreparable damage to [her and Mr. Townsend,]” since they remain

liable for the mortgages on the Property and since “[n]o

arrangements appear to have been made to pay off [the Liens] by

the Purchaser [BMI].” Ms. Simmons also asserts that Mr.

Townsend’s purpose in requesting a sale – rather than a

partition – of the Property was to unencumber the Property and

that, therefore, the “Property should have had a minimum

starting bid of the amounts of liens, attorney fees, and any

assessments.”

1 N.C. Gen. Stat. § 46-28.1(a)(1) provides an additional ground where the petition is filed by the successful bidder at the Commissioner’s sale. -8- We are unpersuaded and conclude that the findings made by

the clerk of court (and adopted by the superior court)

concerning the Property adequately support the court’s

determination that the $2,500.00 sale price was fair and

reasonable under the circumstances. The findings indicate that

the Property had been listed for sale for approximately one year

without attracting any offers from prospective buyers; that the

Property’s tax value of $160,000.00 was believed to exceed its

market value and to be “substantially higher than other houses

in the immediate neighborhood”; that the Property was in need of

“substantial repairs” due in part to a mold contamination

problem; that the Property was encumbered by two mortgages, a

first deed of trust in favor of CitiMortgage in the amount of

$58,000.00 and a second deed of trust in favor of City in the

amount of $10,000.00; and that the parties had not presented any

alternative that would have had the effect of increasing the bid

amount at the public sale. We hold that these findings, none of

which is contested by Ms. Simmons on appeal, see In re Schiphof,

192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008)

(“Unchallenged findings of fact are presumed correct and are

binding on appeal.”), support the confirmed sale price of

$2,500.00. -9- We further note that the record is devoid of evidence to

indicate that the Property – subject to the Liens – is worth

substantially more than $2,500.00 in its current condition and

that it was Ms. Simmons’ burden to prove otherwise. It does not

appear from the record that Ms. Simmons introduced any evidence

concerning the value of the Property or that she requested the

court to order an independent appraisal of the Property pursuant

to the procedures set forth in N.C. Gen. Stat. § 46-28.1(d1)

(permitting a party to request the court to “order an

independent appraisal” where such an appraisal has not yet been

introduced into evidence). Accordingly, this argument is

overruled.

Ms. Simmons also argues that the procedure which allows the

Liens to remain in place would cause “irreparable damage” to her

and her brother. She argues that the Commissioner erred in

selling the Property subject to the Liens; that she and her

brother will remain liable for the debts which are secured by

the Liens; and that BMI has no obligation to pay these debts.

We agree with Simmons that the Commissioner erred in selling the

Property subject to the Liens, where the lienholders were made

parties to the proceeding and where the clerk did not direct the

sale to be made subject to the Liens. However, we do not -10- believe that Ms. Simmons has met her burden of demonstrating

precisely how this error caused her “irreparable damage.”

Our Supreme Court has explained that while in other states

the purchaser at a partition sale takes free of liens and

encumbrances, our statutory regime provides that the purchaser

takes only “such title and estate in the property as the tenants

in common, or joint tenants, and all other parties to the

proceeding had therein.” Washburn v. Washburn, 234 N.C. 370,

373, 67 S.E.2d 264, 266 (1951) (quoting N.C. Gen. Stat. § 46-30)

(emphasis added and parentheses omitted). In other words, when

a lienholder is made a party to the proceeding, N.C. Gen. Stat.

§ 46-30 provides that the purchaser takes the interests in the

property that the lienholder had such that the lienholder loses

its lien on the property. Accordingly, where lienholders are

not made parties to the sale in lieu of partition proceeding,

their lien rights are unaffected by the partition sale; but, in

such a case, the lienholders have no right in the proceeds from

the sale since they retain their lien rights in the property.

Our Supreme Court has explained that while lienholders are

not necessary parties to a proceeding where a tenant in common

seeks a sale in lieu of partition, Holley v. White, 172 N.C. 77,

78, 89 S.E. 1061, 1062 (1916), “the better practice undoubtedly -11- is to make all mortgagees and lienors parties” so that

“[i]ntending purchasers will likely bid more for property when

they know they are getting a perfect title freed from all

incumbrances the amount of which they probably do not know.”

Id.; see also Rostin v. Huggins, 216 N.C. 386, 390, 5 S.E.2d

162, 165-66 (1939).

In the present case, the holders of the Liens, CitiMortgage

and the City, were named parties to this proceeding. The clerk

of court ordered the Commissioner to sell the Property, but did

not order that the Property be sold subject to the Liens. The

Commissioner, though, erred by indicating in its notice of sale

that the Property was being sold subject to the Liens. However,

the fact that the court-appointed sales commissioner errs in the

course of carrying out the sale is not, in and of itself,

grounds for revocation of the confirmation of the sale under

N.C. Gen. Stat. § 46-28.1; a petition must instead be predicated

on one of the statutorily enumerated grounds. In this case, it

was Ms. Simmons’ burden to show how the Commissioner’s error

would “result in irreparable damage” to her under N.C. Gen.

Stat. § 46-28.1(a)(2)c. We do not believe that the court erred

in concluding that Ms. Simmons had not met her burden in this

regard. Specifically, we note that the clerk considered that -12- the Property was still subject to the Liens and that BMI would

have to resolve the Liens or face foreclosure2; that the record

reveals Ms. Simmons is or at some point during this proceeding

had declared personal bankruptcy; that Mr. Townsend, who did not

appeal this matter, has indicated that he will not make any

additional payments towards the debts secured by the Liens; and

that there is no evidence or argument made by Ms. Simmons that

potential bidders for the Property declined to bid at the action

due to the fact that the Commissioner’s notice of the sale

indicated that the Property was being sold subject to the Liens.

See Holley, 172 N.C. at 78, 89 S.E.2d at 1062 (providing

generally that bid amounts may be suppressed where property is

subject to liens of unknown amounts). Rather, the record

reveals that the Commissioner’s notice of sale indicated the

approximate purchase price necessary to satisfy the Liens, such

2 In its order denying Ms. Simmons’ petition to revoke confirmation of the sale, the clerk of court concluded that “[t]he Court has no authority in a partition proceeding to disallow or otherwise ignore secured liens on the subject property.” We note that a court generally does have certain authority pursuant to N.C. Gen. Stat. § 46-30 to order a property sold unencumbered by liens of those lienholders who are made parties to the proceeding. The clerk of court’s statement is correct in the narrow context of the present case, however, in that the court had no authority to order the Commissioner to deed the Property to BMI unencumbered by the Liens for $2500.00, where the Commissioner had advertised to the public that the Property was being sold subject to the Liens. -13- that potential bidders would know the amount of money needed in

order to own the Property unencumbered.

We have carefully reviewed Ms. Simmons’ remaining

contentions and are either unable to discern their substance,

see Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615

S.E.2d 350, 358 (2005) (“It is not the duty of this Court to

supplement an appellant’s brief with legal authority or

arguments not contained therein.”), or deem them abandoned for

failure to supply relevant legal authority and/or reasoning in

support thereof, see N.C.R. App. P. 28(b)(6).

III. Conclusion

In light of the foregoing, we affirm the order of the

superior court upholding the clerk of court’s decision to deny

Ms. Simmons’ petition to revoke confirmation of sale of the

Property to BMI for $2,500.00 subject to the Liens.3

AFFIRMED.

Judges STROUD and HUNTER, JR. concur.

Report per Rule 30(e).

3 There is nothing in the order from which Ms. Simmons’ appeals which specifies how the $2,500.00 in proceeds is to be disbursed. Further, she does not make any argument concerning the disbursement of the proceeds. We point out that under our Supreme Court’s reasoning in Washburn, supra, since the sale to BMI will not affect the Liens, CitiMortgage and the City should not receive any portion of the proceeds from the sale to BMI. -14-