County of Cumberland, et al v Barton, et al
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-631 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 COUNTY OF CUMBERLAND and THE CITY OF FAYETTEVILLE[,] political Subdivisions of the State of North Carolina, Plaintiffs v. Cumberland County No. 10 CVD 4694 PHILIP WAYNE BARTON and C. LEON LEE, II aka CLIFFORD LEON LEE, II, Owners; WILLIAM T. RAY, Lienholder; MARY P. RAY, Lienholder; STEVE BUNCE, TRUSTEE; DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Judgment Lienholder; Defendants Appeal by defendants from judgment entered 16 December 2010 by Judge Kimbrell K. Tucker in the Cumberland County District Court. Heard in the Court of Appeals 7 November 2011. Harvey W. Raynor, III, Attorney for County of Cumberland, for Plaintiff-Appellees. Philip Wayne Barton, Defendant-Appellant, pro se. C. Leon Lee, II, Defendant-Appellant, pro se. ERVIN, Judge. Defendants Philip Wayne Barton and C. Leon Lee, II, appeal from a judgment authorizing the sale of a tract of real property -2owned by Defendants as a result of Defendants failure to pay county taxes and a city assessment applicable to the property for 2008, 2009, and 2010. the trial court erred On appeal, Defendants contend that by entering judgment in favor of Plaintiffs Cumberland County and the City of Fayetteville on the grounds that the record did not adequately support the unpaid tax amount found appropriate by the trial court. However, given that trial the judgment foreclosure has sale already authorized occurred, we by the conclude that court s Defendants appeal should be dismissed on mootness grounds. I. Factual Background On 25 May 2010, Plaintiffs filed a complaint seeking to reduce unpaid assessments 2008, 2009, associated with and a 2010 tract property of taxes property and owned by Defendants to judgment and requiring the sale of the property in question for the purpose assessment obligations. Defendants filed an entry of default satisfying the unpaid tax and On 10 July 2010 and 18 October 2010, answers Plaintiffs complaint. of denying the material allegations of On 21 October 2010, Plaintiffs obtained against two individuals who held liens against Defendants property and the trustee under a deed of trust applicable to that property. On the same date, Plaintiffs filed a certificate indicating that Defendants owed $8,282.49 in -3taxes and assessments relating to 2008, 2009, and 2010 associated with the real property in question as authorized by N.C. Gen. Stat. § 105-374(e). On 29 October 2010, Plaintiffs filed an amended complaint adding the Internal Revenue Service of the United States Treasury Department as a party defendant as a result of the fact that the Internal property. filed an Revenue Service held a lien against the On 22 November 2010, the Internal Revenue Service answer Plaintiffs to Plaintiffs request that amended Defendant s complaint property joining in sold and be requesting that the proceeds of the resulting sale be used to satisfy its lien. On 6 December 2010, Plaintiffs filed a motion seeking an award of legal fees pursuant to N.C. Gen. Stat. § 105-349. The case came on for trial before the trial court, sitting without a jury, at the 8 December 2010 session of Cumberland County District Court. entered [o]wners an of order the On 16 December 2010, the trial court finding real that property Defendants which is the are the subject lawful of this action; that a total of $8,354.65 in taxes remain[ed] unpaid for said property for the years 2008, 2009 and 2010; that David B. Craig, attorney for the Plaintiff(s), is appointed Commissioner to sell the property at public auction for cash to -4the highest bidder; and that, after delivery of the deed and collection of the purchase price, the Commissioner shall apply the proceeds as provided by law. court entered an order On the same date, the trial awarding Plaintiffs $2,500.00 attorney s fees, with the Final Report in this matter reflect the payment. in [to] On 20 December 2010 and 12 January 2011, Defendants noted appeals to this Court from the trial court s judgment and from the order requiring them to pay Plaintiffs attorney s fees. On 21 indicating December that the 2010, the Commissioner foreclosure sale filed required notice the by a trial court s judgment had been scheduled for 12:00 noon on 13 January 2011 at the Cumberland County Courthouse. On 12 January 2011, Defendants filed motions seeking the entry of an order staying the foreclosure sale. conducted a hearing Although the record On 13 January 2011, the trial court concerning Defendants stay motions. does contain order denying not an Defendants request that the foreclosure sale be stayed, it does reflect that the Commissioner conducted the sale ordered by the trial court s judgment as scheduled. order of regularly confirmation, and lawfully the real conducted According to the Clerk s property sale was that sold followed at a due -5advertisement in accordance with law on 13 January 2011 for $95,000.00. On 26 January 2011, the Commissioner sought confirmation of the sale on the grounds that more than ten days have elapsed since the sale of the real property described in the judgment in this action and since the report of the sale to the court and since no advanced or upset bid has been offered for the real property. On the same date, the Clerk confirmed the sale, authorized the Commissioner to deliver to the purchaser a deed to the real property in fee simple, and ordered the Commissioner to file his final report showing the disbursement of the proceeds of the sale in accordance with the judgment heretofore rendered in this action. On 15 February 2011, the Clerk approved the Commissioner s final report, which reflected the delivery various of a deed disbursements to in the purchaser accordance with and the making the trial of court s judgment. II. Legal Analysis According to well-established North Carolina law, a case is moot when a determination is sought on a matter which, when rendered, cannot controversy. have any practical effect on the existing Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003) (citation and quotation marks omitted). Put -6another way, [w]hen the questions originally at issue in a case are no longer at issue when the case is on appeal, the appeal is moot and should be dismissed. __, 713 S.E.2d 119, 121 In re Hackley, __ N.C. App. __, (2011), disc. review denied and dismissed as moot, __ N.C. __, __ S.E.2d __ (2011) (citing N.C. Press Assoc., S.E.2d 138, Inc. 139 v. Spangler, (1987)). As a 87 N.C. App. 169, result, this 171, Court held 360 in Hackley that, when a court-ordered sale of real property has been completed, the sale has not been stayed, no upset bid was submitted in a timely fashion, no temporary restraining order or preliminary injunction has been entered, and a trustee s deed to the purchase has been executed, delivered, and recorded, any appeal from the order of sale was moot because parties rights become fixed. Hackley, 713 S.E.2d at 121. See also Austin v. Dare County, 240 N.C. 662, 663, 83 S.E.2d 702, 702-03 (1954) (stating that, because the real property at issue had already been sold, any appeal from the denial of a temporary restraining order sought property for raised the purpose merely an of preventing academic the question sale given of the that a court cannot restrain the doing of that which has been already consummated ); Surety Corp. v. Sharpe, 233 N.C. 644, 645, 65 S.E.2d 137, 138 (1951) (dismissing a plaintiff s appeal where the property at issue had been sold, effectively rendering the -7question before the Supreme Court academic ). In this case, as in Hackley, the record clearly establishes that the foreclosure sale required by the trial court s judgment has been completed, that the proceeds of the sale have been applied to eliminate Defendants tax and assessment liabilities, and that Defendants real property has been conveyed to the purchaser. As a result, since any decision that we might issue in this case based upon Defendants challenges to the trial court s order would have no practical effect, Defendants appeal has been rendered moot and must be dismissed. APPEAL DISMISSED. Chief Judge MARTIN and Judge STROUD concur. Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
