Mull v. Eubanks ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-204
Filed: 15 September 2015
Transylvania County, No. 13 CVS 314
DEANNA RAMEY MULL et vir GUY ANDREW MULL, JR., Plaintiffs,
v.
LLOYD V. EUBANKS, Individually, JENNIFER HERZOG, as Trustee for
CITIFINANCIAL SERVICES, INC. by and through its Registered Agent for Service
of Process, CT Corporation System Services, Inc., Defendants.
Appeal by plaintiffs from judgment entered 24 September 2014 by Judge Mark
E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 25
August 2015.
Donald H. Barton, P.C., by Donald H. Barton, for plaintiff-appellants.
Nelson Mullins Riley & Scarborough, LLP, by Donald R. Pocock, for defendant-
appellee, CFNA Receivables (DE), Inc. a/k/a CitiFinancial.
TYSON, Judge.
Plaintiffs, Deanna Ramey Mull and Guy Andrew Mull, Jr. (“the Mulls”), appeal
from the trial court’s grant of summary judgment in favor of Defendant, CitiFinancial
Services, Inc. (“CitiFinancial”). We dismiss the appeal as moot.
I. Background
MULL V. EUBANKS
Opinion of the Court
On 3 November 1997, Virgil and Myrtle Ramey (“the Rameys”) conveyed a one-
acre parcel of land, together with an access easement, to their daughter, Sandra, and
her husband, Lloyd Eubanks (“the Eubankses”). The property was conveyed subject
to a “right of first refusal” set forth in the deed as follows:
SUBJECT TO the right of first refusal of Grantor, and
Grantor’s heirs and assigns, (consideration for said right
being included in, and being part of the consideration of
said conveyance to Grantee), to purchase said 1.00 acre
tract for ONE HUNDRED AND TWENTY-FIVE ($125.00)
DOLLARS, should Grantee wish to convey said property to
a non-heir of Grantor.
On 20 March 2007, the Eubankses borrowed $92,941.79 from CitiFinancial.
They pledged the property, along with the existing mobile home on the property, as
collateral security for a promissory note and deed of trust executed to the trustee and
CitiFinancial as beneficiary. The Eubankses applied the proceeds from the
CitiFinancial loan to pay off a prior unrelated mortgage and to acquire a replacement
mobile home for them to live on the property.
Sandra Eubanks died in 2008, after the execution of the promissory note and
deed of trust. The tract became the sole property of her husband, Lloyd Eubanks
(“Eubanks”). Eubanks moved from the premises in January, 2013. He has failed to
make any payment on the CitiFinancial loan since that time.
The original grantors of the property, the Rameys, are deceased. Plaintiff
Deanna Ramey Mull is another daughter of the Rameys. In anticipation of
-2-
MULL V. EUBANKS
Opinion of the Court
foreclosure on the property, Mull and her husband attempted to purchase the
property for $125.00 pursuant to the terms of the right of first refusal contained in
the deed executed by the Rameys to the Eubankses.
On 29 July 2013, the Mulls filed a complaint for breach of contract against
Eubanks and Citifinancial, through CitiFinacial’s trustee, Jennifer Herzog. The
Mulls alleged title of the property was in danger of being vested in a non-heir of the
Rameys, and they had acquired the right of first refusal as heirs of the Rameys. The
complaint further alleged Defendants had not executed a sales agreement or agreed
to sell them the property for $125.00.
CitiFinancial filed a motion for summary judgment on 15 August 2014. On 2
September 2014, the superior court heard the motion and granted summary
judgment in favor of CitiFinancial. The attorney for CitiFinancial explained at the
summary judgment hearing that the property was not currently in active foreclosure,
but there were no hindrances to foreclosure such as an injunction or temporary
restraining order. He stated foreclosure “just hasn’t happened yet.”
The Mulls appeal from the order granting summary judgment. Defendant
Eubanks did not participate in the motion for summary judgment. This appeal
pertains only to CitiFinancial.
Subsequent to the entry of the order appealed from and the Mulls’ entry of
notice of appeal, Eubanks and the Mulls entered into a settlement agreement (“the
-3-
MULL V. EUBANKS
Opinion of the Court
agreement”). Pursuant to the agreement, Eubanks conveyed his interest in the
property to the Mulls by quitclaim deed dated 26 November 2014, subject to
CitiFinancial’s deed of trust. The agreement further states the parties “shall enter
into a stipulation for dismissal of the . . . civil action with the [trial] Court retaining
jurisdiction for purposes of enforcing the terms of this Settlement Agreement.”
II. Issues
The Mulls argue the trial court erred in granting summary judgment in favor
of CitiFinancial where genuine issues of material fact exist, asserting: (1)
Citifinancial committed breach of contract by violating the covenant in the deed that
prohibits conveyance of the property to a non-heir of the Rameys; (2) the Mulls
suffered damages from CitiFinancial’s breach of contract; (3) the Mulls were entitled
to specific performance of the provision in the deed requiring the property to be
conveyed to them upon their payment of $125.00; (4) the deed should be set aside for
failure of consideration; and, (5) the doctrine of estoppel applies where CitiFinancial
was aware of the right of first refusal.
III. Mootness
The Mulls argue the right of first refusal is a binding contract between the
Mulls and Defendants, Defendants materially breached the covenant by failing to
execute a deed to the Mulls upon payment of $125.00, and the Mulls are entitled to
-4-
MULL V. EUBANKS
Opinion of the Court
specific performance of the terms and conditions of the right of first refusal contained
in the deed.
The Mulls also allege they have suffered damages of not less than $10,000.00
as a direct and proximate result of Defendants’ failure to perform under the terms of
the right of first refusal. The Mulls sought an injunction for specific performance of
the right of first refusal, and an award of actual damages, interest and costs,
including reasonable attorney’s fees.
CitiFinancial argues the claims alleged in the Mulls’ complaint are now moot
because Eubanks has conveyed the property by quitclaim deed to the Mulls since the
entry of summary judgment. We agree.
The trial court entered summary judgment in favor of CitiFinancial on 24
September 2014. Eubanks, the sole owner of the property, deeded the property to the
Mulls by quitclaim deed on 26 November 2014. The Mulls have received Eubanks’s
interest in the property and no contract exists to enforce through specific
performance.
The Mulls have provided no forecast of evidence of any claim for damages or
attorney’s fees owed from CitiFinancial. When asked during depositions of any
amount of money the Mulls sought to recover in this action, they failed to identify
anything other than their attorney’s fees.
IV. Attorney’s Fees
-5-
MULL V. EUBANKS
Opinion of the Court
Absent an express statutory provision, a successful litigant cannot recover
attorney’s fees as costs. Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App.
1, 11-12, 545 S.E.2d 745, 752, aff’d, 354 N.C. 565, 556 S.E.2d 293 (2001). No express
statutory authority permits an award of attorney’s fees in this breach of contract case.
Id. at 12-13, 545 S.E.2d at 752. The Mulls present no authority and make no
argument to the contrary.
V. Conclusion
Our Supreme Court has held:
Whenever, during the course of litigation it develops that
the relief sought has been granted or that the questions
originally in controversy between the parties are no longer
at issue, the case should be dismissed, for courts will not
entertain or proceed with a cause merely to determine
abstract propositions of law.
In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S.
929, 61 L. Ed. 2d 297 (1999). The breach of contract claim raised by the Mulls in their
complaint became moot when Eubanks deeded his interest in the property to them.
Presuming this Court was to hold the right of first refusal is enforceable by the Mulls,
they have obtained all relief that they would be entitled to under the terms of the
deed and precedents. No attorney’s fees are recoverable from this action. The appeal
is dismissed as moot.
DISMISSED.
Judges BRYANT and GEER concur.
-6-
MULL V. EUBANKS
Opinion of the Court
Report per Rule 30(e).
-7-