Myers v. H. McBride Realty, Inc. , 93 N.C. App. 689 ( 1989 )

379 S.E.2d 70 (1989)

Gary W. MYERS
v.
H. McBRIDE REALTY, INC., Marlo Investments, Inc., d/b/a Realty World, a Landmark Company; C.W. Kidd, Sheriff, Mecklenburg County; Louise C. Liles; and Domer Reeves.

No. 8826SC682.

Court of Appeals of North Carolina.

May 16, 1989.

William D. McNaull, Jr., Charlotte, for plaintiff-appellant.

Sandra T. Bisanar, Associate County Atty., Kennedy, Covington, Lobdell & Hickman by Lisa D. Hyman, and Morrison & Peniston by Dale S. Morrison, Charlotte, for defendants-appellees.

WELLS, Judge.

Plaintiff argues on appeal that the trial court erred in failing to grant plaintiff's motion for a preliminary injunction.

A preliminary injunction, as a general rule, will be issued only "(1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff's rights during the course of litigation."

Robins & Weill v. Mason, 70 N.C.App. 537, 320 S.E.2d 693, disc. rev. denied, 312 N.C. 495, 322 S.E.2d 558-559 (1984) (quoting Investors, Inc. v. Berry, 293 N.C. 688, 239 S.E.2d 566 (1977)) (emphasis in original.) The burden is on the plaintiff to establish his right to a preliminary injunction. Pruitt v. Williams, 25 N.C.App. 376, 213 S.E.2d 369, appeal dismissed, 288 N.C. 368, 218 S.E.2d 348 (1975). The issuance of a preliminary injunction "is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities." A.E.P. Industries v. McClure, 308 N.C. 393, 302 S.E.2d 754 (1983) (quoting State v. School, 299 N.C. 351, 261 S.E.2d 908, appeal dismissed, 449 U.S. 807, 101 S. Ct. 55, 66 L. Ed. 2d 11 (1980)). "[O]n appeal from an order of superior court granting or denying a preliminary injunction, an appellate court is not bound by the findings, but may review and weigh the evidence and find facts for itself." Id. 308 N.C. at 402, 302 S.E.2d at 760.

Plaintiff's argument on appeal is that the statutory requirements for notice of an execution sale were not met in the present case. As a result plaintiff argues that the evidence tended to show a likelihood of success by plaintiff on the merits and that he would suffer irreparable loss if the court did not issue the injunction. We disagree.

In execution sales, notice of execution is governed by N.C.Gen.Stat. § 1-339.51 to G.S. § 1-339.54. See Henderson County v. Osteen, 292 N.C. 692, 235 S.E.2d 166 (1977). Plaintiff's argument on appeal is primarily concerned with the requirements of G.S. § 1-339.54 which deals with notice to a judgment debtor of sale of real property. G.S. § 1-339.54 (1983) reads as follows:

In addition to complying with G.S. 1-339.52, relating to posting and publishing the notice of sale, the sheriff shall, at least ten days before the sale of real property,

(1) If the judgment debtor is found in the county, serve a copy of the notice of sale on him personally, or

(2) If the judgment debtor is not found in the county,

a. Send a copy of the notice of sale by registered mail to the judgment debtor at his last address known to the sheriff, and

b. Serve a copy of the notice of sale on the judgment debtor's agent, if there is in the county a person known to the sheriff to be an agent who has custody or management of, or who exercises control over, any property in the county belonging to the judgment debtor.

In the present case plaintiff excepts to the trial court's finding that the requirements of G.S. § 1-339.54 were complied with by the issuance of a certified letter sent to plaintiff's last known address. While we are not bound by the findings of a trial court in the granting or denial of a preliminary injunction on appeal, we find that the evidence in the present case supports the finding made by the trial court concerning satisfaction of the requirements of G.S. § 1-339.54. As noted above, when the judgment debtor is not found in the county the sheriff may serve the notice of sale upon the judgment debtor by sending a copy of the notice of sale by registered mail to the judgment debtor at his last address known to the sheriff. The evidence tended to show that the deputy sheriff attempted to locate the plaintiff by running his name through the Department of Motor Vehicles' (DMV) computer. The DMV printout showed a person with plaintiff's name at a Blueberry Lane address. The deputy checked the city cross-reference directory which showed a concrete service business at that address. The phone book was checked and no one with plaintiff's name was listed. The deputy went to the address listed on the execution notice and to an address where plaintiff owned real property. The deputy could not locate plaintiff. At this point the decision was made by the Sheriff's Department to serve plaintiff by certified mail at his last known address. The Sheriff's Department did not know which of the two addresses was plaintiff's last address so the notice was sent to both addresses. We hold that the Sheriff's Department complied with the requirements of G.S. § 1-339.54. As plaintiff failed to show a likelihood of success on the merits of his request for a preliminary injunction, the trial court did not err in denying plaintiff's request for a preliminary injunction. The assignment of error is overruled.

Plaintiff also contends that the trial court erred in hearing defendants' motions to dismiss on the grounds that this action amounted to an appeal from one superior court judge to another superior court judge. "The general rule in this jurisdiction is that ordinarily a trial judge may not review the orders, judgments, or actions of another judge of coordinate jurisdiction." State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983). "To permit one superior court judge to overrule the final order or judgment of another would result in the disruption of the orderly process of a trial and the usurpation of the reviewing function of appellate courts." Id. at 642, 304 S.E.2d at 189. "This rule does not apply, however, to interlocutory orders given during the progress of an action which affect the procedure and conduct of the trial." Id. (emphasis in original.) "An interlocutory order or judgment does not determine the issues in the cause but directs further proceedings preliminary to the final decree." Id., at 642, 304 S.E.2d at 190.

In the present case, defendants Sheriff and Reeves originally made motions to dismiss before Judge Burroughs at the preliminary injunction hearing on 15 December 1987. Judge Burroughs made no ruling on defendants' motions, but left that question for later resolution. All of the defendants made motions to dismiss before Judge Snepp on 15 March 1988. Judge Snepp granted defendants' motions to dismiss on 25 March 1988.

Judge Burroughs' order of 15 December 1987 dealt solely with issues concerning the propriety of plaintiff's request for a preliminary injunction and was clearly contemplative of further proceedings on the merits. As such, Judge Burroughs' order, though denying plaintiff's request, was interlocutory in nature. Judge Burroughs did not address or render any decision on defendants' motions to dismiss. It was proper for Judge Snepp to conduct further proceedings in this matter and to entertain defendants' motions to dismiss which dealt with issues different from those ruled upon by Judge Burroughs. Plaintiff's assignment of error is overruled.

Plaintiff next assigns error to Judge Snepp's order granting defendants' motions to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. We note that at the hearing on defendants' motions to dismiss, Judge Snepp reviewed the pleadings, the case file of the present case and a full transcript of the 15 December hearing. "Where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion shall be treated as one for summary judgment under Rule 56." DeArmon v. B. Mears Corp., 312 N.C. 749, 325 S.E.2d 223 (1985). Therefore, we will examine this assignment of error in light of the rules concerning the granting of summary judgment. "A party moving for summary judgment is entitled to such judgment if he can show, through pleadings and affidavits, that there is no genuine issue of material fact requiring a trial and that he is entitled to judgment as a matter of law." Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987). "Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper." Colonial Building Co. v. Justice, 83 N.C.App. 643, 351 S.E.2d 140 (1986), disc. rev. denied, 319 N.C. 402, 354 S.E.2d 711 (1987). Plaintiff has failed to establish a claim upon which he may obtain relief. The evidence tends to show that several defendants were recipients of a money judgment in their favor at a prior proceeding. Proper notice was given to plaintiff concerning his rights to exemptions and the execution sales and that a valid execution sale was carried out. There appears to be no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law. The trial court order dismissing the present action is

Affirmed.

BECTON and JOHNSON, JJ., concur.