Wilson v. SunTrust Bank , 257 N.C. App. 237 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-482
Filed: 19 December 2017
Cabarrus County, No. 16-CVS-1972
JENNIFER L. WILSON, Plaintiff,
v.
SUNTRUST BANK; SUNTRUST MORTGAGE INC.; DEUTSCHE BANK TRUST
COMPANY AMERICAS; THE LAW FIRM OF HUTCHENS, SENTER & BRITTON
P.A. n/k/a HUTCHENS, SENTER, KELLAM & PETTIT, P.A.; SUBSTITUTE
TRUSTEE SERVICES, INC.; and DOES/JANES 1-10 INCLUSIVE, Defendants.
Appeal by plaintiff from orders entered by Judge Gregory R. Hayes on 29
September 2016 in Cabarrus County Superior Court and 5 December 2016 in
Catawba County Superior Court. Heard in the Court of Appeals 5 October 2017.
Plaintiff-appellant Jennifer L. Wilson, pro se.
Nelson Mullins Riley & Scarborough LLP, by Ramona Farzad and Julia B.
Hartley, for defendant-appellees SunTrust Bank and SunTrust Mortgage, Inc.
Hutchens Law Firm LLP, by Lacey Moore Duskin, for defendant-appellees
Hutchens Law Firm LLP f/k/a Hutchens, Senter, Kellam & Pettit, P.A., f/k/a
Hutchens, Senter & Britton, P.A., and Substitute Trustee Services, Inc.
Troutman Sanders LLP, by D. Kyle Deak, for defendant-appellee Deutsche
Bank Trust Company Americas.
ZACHARY, Judge.
Jennifer L. Wilson (plaintiff) appeals from an order entered on 29 September
2016, that dismissed with prejudice plaintiff’s claims against SunTrust Bank,
WILSON V. SUNTRUST BANK
Opinion of the Court
SunTrust Mortgage, Inc., Hutchens Law Firm LLP,1 Substitute Trustee Services,
Inc., and Deutsche Bank Trust Company Americas (Deutsche Bank) (collectively,
defendants). This order quieted title to certain real property in favor of Deutsche
Bank, and denied plaintiff’s motion for a temporary restraining order and
preliminary injunction.2 Plaintiff also appeals from an order entered on 5 December
2016, that denied plaintiff’s motion for findings and conclusions to be added to the
order of 29 September, her motion to amend or alter the order, and her objection to
the trial court’s holding a hearing in Catawba County.
On appeal, plaintiff argues that the trial court lacked jurisdiction to conduct a
hearing on 15 August 2016, erred by entering an order out of county on 29 September
2016, and erred by dismissing her complaint and denying her motion for entry of a
temporary restraining order and a preliminary injunction. We conclude that the trial
court did not err by entering the 29 September 2016 order out of county, by dismissing
plaintiff’s complaint, or by denying plaintiff’s motion asking the trial court to “show
cause how this court . . . possessed jurisdiction.” Because we conclude that the trial
court did not err by dismissing plaintiff’s complaint, we dismiss as moot plaintiff’s
1 Hutchens Law Firm was formerly known as Hutchens, Senter, Kellam & Pettit, P.A., and as
Hutchens, Senter & Britton, P.A. In this opinion we refer to the firm as “Hutchens Law Firm.”
2 The order also included rulings on plaintiff’s challenges to allowing defendants’ counsel to
provide representation. Plaintiff has not presented arguments on these rulings and they are deemed
abandoned. N.C. R. App. P. 28(b)(6) (2016) (“Issues not presented in a party’s brief, or in support of
which no reason or argument is stated, will be taken as abandoned.”). Accordingly, we do not address
these rulings in this opinion.
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argument regarding the denial of her motion for a temporary restraining order and
preliminary injunction.
Plaintiff also argues that the trial court erred by conducting a hearing in
Catawba County on 14 November 2016, by denying her motion to alter or amend the
29 September 2016 order, and by denying her motion for entry of findings of fact and
conclusions of law in the order. We conclude that the trial court did not err by denying
plaintiff’s motion for entry of findings and conclusions, plaintiff’s motion asking the
trial court to alter or amend its judgment, or plaintiff’s challenge to the trial court’s
authority to conduct a hearing in Catawba County.
Factual and Procedural Background
We first note that in her brief, plaintiff recites a number of factual
circumstances that are not necessary for the disposition of the issues raised on
appeal. We find the following facts, which are essentially undisputed, to be relevant
to our resolution of this appeal. On 18 January 2007, plaintiff borrowed $296,000
from SunTrust Mortgage, Inc. (hereafter “SunTrust Mortgage”), in order to finance
the purchase of real property located on Pinecroft Court, in Harrisburg, North
Carolina (hereafter, “the property”). Plaintiff signed a promissory note and a deed of
trust securing the loan. In 2009, plaintiff defaulted on the terms of the loan by failing
to make the required mortgage payments. In October 2009, Hutchens Law Firm filed
an appointment of substitute trustee, naming Substitute Trustee Services, Inc.
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(“STS”) as substitute trustee. On 3 November 2009, Hutchens Law Firm, as the
attorney for STS, wrote to plaintiff informing her that foreclosure proceedings were
being initiated.
Following a hearing, an order allowing foreclosure was entered by an Assistant
Clerk of Court for Cabarrus County on 25 January 2010. The order found that
SunTrust Bank was the holder of the note; that the note was in default; that plaintiff
had been served with notice of the hearing; and that plaintiff had shown no valid
reason why foreclosure could not proceed. The Order ruled that STS was authorized
to proceed with foreclosure. Plaintiff did not appeal this order. At the foreclosure sale
conducted on 15 November 2010, SunTrust Bank was the highest bidder. SunTrust
Bank assigned its bid to Deutsche Bank. A Final Report of Foreclosure was filed on
9 December 2010, and on 7 February 2011, a Trustee’s Deed was recorded naming
Deutsche Bank as the owner of the property.
On 22 June 2016, plaintiff was served with a notice directing her to vacate the
property. On 8 July 2016, plaintiff filed a verified complaint against defendants. In
her complaint, plaintiff alleged that in 2007 SunTrust Mortgage had sold the note
and deed of trust to another financial entity and that, in order to obtain an order
allowing foreclosure, defendants later executed fraudulent documents. Plaintiff
sought damages from defendants for “fraud upon the court,” including rescission of
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foreclosure-related documents, money damages, and a declaration quieting title to
the property in favor of plaintiff.
On 29 July and 1 August 2016, the defendants filed motions asking that
plaintiff’s complaint be dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6),
for failure to state a claim upon which relief can be granted. On 2 August 2016,
plaintiff filed an amended motion seeking a temporary restraining order (TRO) and
a preliminary injunction staying the entry of an order for possession of the property
or sale of the property. Plaintiff alleged that the foreclosure sale was “procured by
Fraud Upon the Court” and that there was a “serious controversy” as to “the title
ownership of the Subject Property[.]” On 15 August 2016, the trial court conducted a
hearing on defendants’ respective motions for dismissal of plaintiff’s claims, together
with plaintiff’s motion for entry of a TRO and a preliminary injunction.
On 29 September 2016, the trial court entered an order dismissing plaintiff’s
complaint with prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for failure
to state a claim upon which relief can be granted, denying plaintiff’s motions for
injunctive relief, and taxing plaintiff with the costs of the action. The order was
served on plaintiff on 7 October 2016. On 12 October 2016, plaintiff filed a motion
asking the trial court to enter findings of fact and conclusions of law for its order of
29 September 2016, as well as a “Motion for Order to Show Cause How this Court at
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the August 15, 2016 Hearing Possessed Jurisdiction.” On 13 October 2016, plaintiff
filed a motion asking the court to alter or amend its 29 September 2016 order.
On 31 October 2016, counsel for defendant Deutsche Bank filed a notice that a
hearing would be conducted on plaintiff’s motions in Catawba County on 14
November 2016. Plaintiff filed an objection to the location of the hearing on 7
November 2016. Following a hearing conducted on 14 November 2016, the trial court
entered an order on 5 December 2016, in which it denied plaintiff’s motion for entry
of findings and conclusions, plaintiff’s motion to alter or amend judgment, plaintiff’s
motion challenging the court’s jurisdiction, and plaintiff’s objection to the hearing
being conducted in Catawba County. Plaintiff noted an appeal to this Court from the
orders entered on 29 September and 5 December 2016.
Trial Court’s Jurisdiction over the 15 August 2016 Hearing
Plaintiff contends that the trial court lacked jurisdiction to conduct the hearing
on 15 August 2016, on the grounds that the court failed to produce evidence of a
commission properly assigning Judge Gregory R. Hayes to preside in Cabarrus
County on that date. The premise of plaintiff’s argument is that her filing of a motion
demanding that the trial court “show cause” demonstrating the source of its
jurisdiction to preside over the hearing on 15 August 2016, unaccompanied by any
evidence showing affirmatively that the court lacked jurisdiction, shifted to the court
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the burden of establishing the existence of jurisdiction. Plaintiff has misapprehended
the law in this regard.
Plaintiff appears to contend that her allegation that the trial court lacked
jurisdiction is sufficient to impose upon the court the duty and burden of proving that
it had jurisdiction. However, it is long-established that there is a presumption of
regularity in the proceedings of our courts:
Where a judgment rendered by a domestic court of general
or superior jurisdiction is attacked in a collateral
proceeding, there is a presumption, which can only be
overcome by positive proof, that it had jurisdiction both of
the persons and the subject-matter, and proceeded in the
due exercise of its jurisdiction. . . . Presumptions against
the validity of the proceedings will not be indulged in,
where the record does not affirmatively show any error or
irregularity. . . . As jurisdiction is presumed, at least prima
facie, any acts or omissions affecting the validity of the
proceedings and judgment must be affirmatively shown[.]
Starnes v. Thompson, 173 N.C. 466, 467-68, 92 S.E. 259, 259-60 (1917) (emphasis
added). Moreover, the party challenging the court’s jurisdiction has the burden of
producing evidence that the court lacked jurisdiction:
If a court finds at any stage of the proceedings that it is
without jurisdiction, it is its duty to take proper notice of
the defect, and stay, quash or dismiss the suit. The
Superior Court is a court of general state-wide jurisdiction.
N.C. Constitution, Article IV § 2[.] Plaintiffs are entitled
to call to their aid the . . . prima facie presumption of
rightful jurisdiction which arises from the fact that a court
of general jurisdiction has acted in the matter. . . . “The
burden is on the party asserting want of jurisdiction to
show such want.”
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Jackson v. Bobbitt, 253 N.C. 670, 673, 117 S.E.2d 806, 807 (1961) (quoting Dellinger
v. Clark, 234 N.C. 419, 424, 67 S.E.2d 448, 452 (1951)) (emphasis added). This
principle was recently applied by our Supreme Court. In In re N.T., 240 N.C. App.
33, 769 S.E.2d 658 (2015), this Court held that the trial court lacked jurisdiction over
a juvenile case, stating that “[g]iven the absence of any competent evidence in the
record to show that the petition was properly verified, the trial court never obtained
jurisdiction over the subject matter of the juvenile case.” N.T., 240 N.C. App. at 35,
36-7, 769 S.E.2d at 661. Our Supreme Court reversed:
“. . . [W]here the trial court has acted in a matter, every
presumption not inconsistent with the record will be
indulged in favor of jurisdiction. . . .” Nothing else
appearing, we apply “the prima facie presumption of
rightful jurisdiction which arises from the fact that a court
of general jurisdiction has acted in the matter.” As a result,
“[t]he burden is on the party asserting want of jurisdiction
to show such want.” . . . [Given] the presumption of
regularity that attaches to the trial court’s decision to
exercise jurisdiction, the Court of Appeals had no basis to
conclude that the petition was not properly verified.
In re N.T., 368 N.C. 705, 707-08, 782 S.E.2d 502, 503-04 (2016) (quoting Cheape v.
Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987) (internal
quotation omitted); Williamson v. Spivey, 224 N.C. 311, 313, 30 S.E.2d 46, 47 (1944);
and Dellinger, 234 N.C. at 424, 67 S.E.2d at 452).
In the present case, plaintiff has not produced any evidence tending to show
that the trial judge was not duly commissioned to preside over the 15 August 2016
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session of Cabarrus County Superior Court. We hold that plaintiff’s bare assertion
that the trial court lacked jurisdiction is insufficient to overcome the presumption of
regularity, and that the trial court did not err by denying plaintiff’s motion
demanding that the trial court “show cause” that it had jurisdiction to preside over
the hearing on 15 August 2016.
Dismissal of Plaintiff’s Complaint
The primary substantive argument of plaintiff’s appeal is that the trial court
erred by dismissing with prejudice her complaint against defendants, pursuant to
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2016), for failure to state a claim upon which
relief can be granted. We conclude that the trial court did not err by dismissing
plaintiff’s complaint.
The standard “of review of an order granting a 12(b)(6) motion is whether the
complaint states a claim for which relief can be granted under some legal theory when
the complaint is liberally construed and all the allegations included therein are taken
as true.” Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007) (citation
omitted). “When the complaint fails to allege the substantive elements of some legally
cognizable claim, or where it alleges facts which defeat any claim, the complaint must
be dismissed.” Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d 840,
844 (2001) (citation omitted). Accordingly:
“Dismissal under Rule 12(b)(6) is proper when one of the
following three conditions is satisfied: (1) the complaint on
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its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts
sufficient to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats the plaintiff’s
claim.” “On appeal, we review the pleadings de novo to
determine their legal sufficiency and to determine whether
the trial court’s ruling on the motion to dismiss was
correct.”
Freedman v. Payne, __ N.C. App. __, __, 784 S.E.2d 644, 647 (2016) (quoting Wood v.
Guilford Cnty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002); and Gilmore v.
Gilmore, 229 N.C. App. 347, 350, 748 S.E.2d 42, 45 (2013)). In addition:
“When documents are attached to and incorporated into a
complaint, they become part of the complaint and may be
considered in connection with a Rule 12(b)(6) motion
without converting it into a motion for summary
judgment.” Moreover . . . “the trial court can reject
allegations that are contradicted by the documents
attached, specifically referred to, or incorporated by
reference in the complaint. Furthermore, the trial court is
not required . . . to accept as true allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” “When reviewing pleadings
with documentary attachments on a Rule 12(b)(6) motion,
the actual content of the documents controls, not the
allegations contained in the pleadings[.]”
Moch v. A.M. Pappas & Assocs., LLC, __ N.C. App. __, __, 794 S.E.2d 898, 903 (2016)
(quoting Schlieper v. Johnson, 195 N.C. App. 257, 261, 672 S.E.2d 548, 551 (2009);
Laster v. Francis, 199 N.C. App. 572, 577, 681 S.E.2d 858, 862 (2009); and Schlieper
at 265, 672 S.E.2d at 552). We will next apply this standard to our review of the
allegations of plaintiff’s complaint.
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The factual allegations of plaintiff’s complaint comprise 136 numbered
paragraphs. Preliminarily, we note that plaintiff makes a number of allegations that
certain evidence is inconsistent with a document to which plaintiff refers as the
“Delehey Declaration.” Plaintiff initiated an action in New York State, and the
Delehey Declaration was filed by Ms. Delehey, an attorney who had represented one
of the parties. It contains the results of Ms. Delehey’s review of documents pertaining
to the foreclosure of the property. Plaintiff cites no authority, and we know of none,
that suggests that this document has any legal bearing on whether plaintiff’s
complaint stated a claim for relief. Accordingly, we do not consider whether the
documents discussed in plaintiff’s complaint are consistent with the “Delehey
Declaration.”
Assuming, as we must during our review, that the remaining allegations of
plaintiff’s complaint are true, they generally tend to show the following: In 2007,
SunTrust Mortgage sold plaintiff’s loan to another entity. Notwithstanding this sale,
in 2009, SunTrust Mortgage purported to execute an assignment of the loan, which
it had not owned for two years, to SunTrust Bank, with the assignment retroactively
effective as of 1 March 2007. Thereafter, defendants knowingly “perpetrated fraud
upon the Clerk of the Court” by filing fraudulent and false documents whose veracity
was in some way associated with the purported assignment of plaintiff’s loan to
SunTrust Bank. Plaintiff alleges that these fraudulent documents were submitted so
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that defendants could obtain the 25 January 2010 order of the clerk allowing the
foreclosure to proceed. Plaintiff also alleges that the documents filed in connection
with the foreclosure sale, including the Trustee’s Deed recorded in February 2011,
were false and fraudulent.
Plaintiff brought claims against defendants for “fraud upon the court” based
upon allegations that the foreclosure on the note was obtained by means of
defendants’ submission of false documents. “However, the ability of a party to
maintain an independent action based upon a judgment in a prior judicial proceeding
that allegedly was tainted by fraud, depends upon whether the fraud at issue is
extrinsic or intrinsic.” Hooks v. Eckman, 159 N.C. App. 681, 684, 587 S.E.2d 352, 354
(2003) (citing Stokley v. Stokley, 30 N.C. App. 351, 354, 227 S.E.2d 131, 134 (1976);
and Fabricators, Inc. v. Industries, Inc., 43 N.C. App. 530, 532, 259 S.E.2d 570, 572
(1979)). In Hooks, this Court stated the following:
In Stokley, this Court asserted that fraud should be
considered extrinsic “when it deprives the unsuccessful
party of an opportunity to present his case to the court. If
an unsuccessful party to an action has been prevented from
fully participating therein there has been no true
adversary proceeding, and the judgment is open to attack
at any time.” The Stokley Court determined that intrinsic
fraud occurs when a party (1) has proper notice of an
action, (2) has not been prevented from full participation in
the action, and (3) has had an opportunity to present his
case to the court and to protect himself from any fraud
attempted by his adversary. Id. Specifically, intrinsic
fraud describes matters that are involved in the
determination of a cause on its merits. In contrast,
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extrinsic fraud prevents a court from making a judgment
on the merits of a case.
Hooks, 159 N.C. App. at 684-85, 587 S.E.2d at 354 (quoting Stokley, 30 N.C. App. at
354-55, 227 S.E.2d at 134). Thus, “[i]t is settled beyond controversy that a decree will
not be vacated merely because it was obtained by forged documents or perjured
testimony. The reason of this rule is that there must be an end of litigation[.]” Horne
v. Edwards, 215 N.C. 622, 627, 3 S.E.2d 1, 4 (1939).
The proper procedure in such a situation is to file a motion pursuant to Rule
60(b) of the North Carolina Rules of Civil Procedure. “When the alleged fraud
complained of is intrinsic then it can only be the subject of a motion under Rule
60(b)(3).” Hooks, 159 N.C. App. at 685, 587 S.E.2d at 354. N.C. Gen. Stat. § 1A-1,
Rule 60(b) (2016) provides in relevant part that:
(b) On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons: .
. . (3) Fraud (whether heretofore denominated intrinsic or
extrinsic)[.] . . . The motion shall be made within a
reasonable time, and for reasons (1), (2) and (3) not more
than one year after the judgment, order, or proceeding was
entered or taken.
“The effect of the Stokley decision is that whenever the alleged fraud is intrinsic
it can only be the subject of a motion under Rule 60(b)(3), and then, of course, it is
barred after one year following the judgment.” Textile Fabricators, Inc. v. C.R.C.
Industries, Inc., 43 N.C. App. 530, 532, 259 S.E.2d 570, 572 (1979). In the present
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case, the factual allegations of plaintiff’s complaint allege intrinsic fraud, which is
not a claim or cause of action that may be the basis of an independent action, such as
that filed by plaintiff. In addition, it is undisputed that plaintiff did not file a motion
pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 seeking relief on the grounds of intrinsic
fraud. We conclude that the court did not err by ruling that plaintiff’s complaint based
on “fraud upon the court” failed to state a claim upon which relief can be granted.
We have also considered whether the allegations of plaintiff’s complaint state
a claim for relief under a theory other than intrinsic fraud. Assuming, arguendo, that
plaintiff’s complaint could be construed to adequately state a claim for fraud, we
conclude that plaintiff’s claim would be barred by the applicable statute of
limitations. N.C. Gen. Stat. § 1-52(b)(9) (2016) establishes a three year statute of
limitations for “relief on the ground of fraud or mistake” and specifies that “the cause
of action shall not be deemed to have accrued until the discovery by the aggrieved
party of the facts constituting the fraud or mistake.” “For purposes of N.C.G.S. § 1-
52(9), ‘discovery’ means either actual discovery or when the fraud should have been
discovered in the exercise of reasonable diligence under the circumstances.” Forbis
v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 386 (2007) (internal quotation omitted).
In the present case, there is no dispute that plaintiff discovered or should have
discovered the alleged fraud by, at the latest, October 2010. Plaintiff has attached to
her complaint documents establishing, inter alia, that on 18 October 2010, she
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executed a verified statement alleging fraudulent actions on the part of defendants
similar to the allegations of her complaint, and that on 27 October 2010, she filed a
complaint with the North Carolina Commissioner of Banks alleging that SunTrust
Bank had filed fraudulent documents in connection with the foreclosure. Moreover,
at the hearing on 15 August 2016, plaintiff informed the court that there “has been
ongoing litigation regarding this foreclosure and subject property in the federal courts
since November 10th of 2010, before the trustee sales took place on November 15th
2010, and before the trustee’s deed was recorded on the public record in February of
2011.” Plaintiff’s complaint was not filed until 8 July 2016, which is well outside the
applicable statute of limitations. As a result, plaintiff’s complaint does not state a
valid claim for fraud.
We further conclude that plaintiff’s complaint cannot be construed as stating
a valid claim for equitable relief pursuant to N.C. Gen. Stat. § 45-21.34 (2016), which
allows a party to seek equitable relief enjoining a foreclosure sale “prior to the time
that the rights of the parties to the sale or resale becom[e] fixed pursuant to G.S. 45-
21.29A[.]” N.C. Gen. Stat. § 45-21.29A (2016) in turn provides that if “an upset bid is
not filed following a sale, resale, or prior upset bid within the period specified in this
Article, the rights of the parties to the sale or resale become fixed.” N.C. Gen. Stat. §
45-21.27(a) (2016) states that the deposit required in order to file an upset bid “shall
be filed with the clerk of the superior court, with whom the report of the sale or the
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last notice of upset bid was filed by the close of normal business hours on the tenth
day after the filing of the report of the sale or the last notice of upset bid” and that
“[w]hen an upset bid is not filed following a sale, resale, or prior upset bid within the
time specified, the rights of the parties to the sale or resale become fixed.”
In the present case, the parties’ rights were fixed by, at the latest, 11 February
2011, when the Trustee’s Deed was filed. It is undisputed that plaintiff did not file a
motion seeking to enjoin the foreclosure within ten days of the parties’ rights
becoming fixed. Moreover, at the 15 August 2016 hearing, plaintiff complained to the
trial court that “[t]he attorneys here are misrepresenting that I’m trying to get some
type of preliminary relief under Chapter 45. That is totally and patently false.” We
conclude that plaintiff’s complaint cannot be construed as stating a valid claim for
relief pursuant to N.C. Gen. Stat. § 45-21.34.
For the reasons discussed above, we conclude that plaintiff’s complaint fails to
state a recognized claim for relief. Therefore, we hold that the trial court did not err
by dismissing plaintiff’s complaint with prejudice, pursuant to N.C. Gen. Stat. § 1A-
1, Rule 12(b)(6).
Entry of Order out of County
We next consider plaintiff’s argument that the order entered by the trial court
on 29 September 2016 was void, on the grounds that the order was signed “outside
the geographical boundaries of Cabarrus County[.]” Plaintiff contends that in order
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to be valid, the 29 September 2016 order had to “be signed in the County wherein the
August 15, 2016 hearing took place.” This argument lacks merit.
In support of her position, plaintiff cites Capital Outdoor Advertising v. City of
Raleigh, 337 N.C. 150, 446 S.E.2d 289 (1994). However, Capital Outdoor held that:
We believe the correct rule to be . . . [that] Rule 6(c) permits
a judge to sign an order out of term [which we interpret to
mean both out of the session and out of the trial judge’s
assigned term] and out of district without the consent of
the parties so long as the hearing to which the order relates
was held in term and in district.
Capital Outdoor, 337 N.C. at 158, 446 S.E.2d at 294-95 (internal quotation omitted).
Furthermore, N.C. Gen. Stat. § 1A-1, Rule 58 (2016) provides in relevant part
that “consent for the signing and entry of a judgment out of term, session, county,
and district shall be deemed to have been given unless an express objection to such
action was made on the record prior to the end of the term or session at which the
matter was heard.” Plaintiff does not contend that she lodged such an objection
during the 15 August 2016 hearing, and our review of the transcript does not reveal
an objection. We conclude that this argument lacks merit.
Denial of Plaintiff’s Motion for Injunctive Relief
Plaintiff argues that in its order of 29 September 2016, the trial court erred by
denying her motion for entry of a temporary restraining order and a preliminary
injunction. We conclude that our holding that the trial court did not err by dismissing
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plaintiff’s complaint has rendered moot the propriety of the trial court’s ruling on
plaintiff’s motion for temporary injunctive relief.
“The purpose of a preliminary injunction is ordinarily to preserve the status
quo pending trial on the merits. . . . Its impact is temporary and lasts no longer than
the pendency of the action.” State v. School, 299 N.C. 351, 357-58, 261 S.E.2d 908,
913 (1980). Similarly, “[a] temporary restraining order ‘is only an ancillary remedy
for the purpose of preserving the status quo or restoring a status wrongfully disturbed
pending the final determination of the action.’ ” Beau Rivage Homeowners Ass’n v.
Billy Earl, L.L.C., 163 N.C. App. 325, 329, 593 S.E.2d 120, 123 (2004) (quoting
Hutchins v. Stanton, 23 N.C. App. 467, 469, 209 S.E.2d 348, 349 (1974)).
An issue is moot “when a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing controversy. Black’s Law
Dictionary 1008 (6th ed. 1990). Courts will not entertain or proceed with a cause
merely to determine abstract propositions of law.” Roberts v. Madison Cty. Realtors
Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (internal quotation omitted).
We have upheld the trial court’s dismissal of plaintiff’s complaint and, as a result, a
determination of whether the trial court should have granted interim relief prior to
dismissing the complaint would have no effect on the outcome of the case. We
conclude that plaintiff’s challenge to the trial court’s denial of her motion for entry of
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a temporary restraining order and a preliminary injunction is mooted by the ultimate
dismissal of her complaint and, accordingly, we do not address this issue.
Plaintiff’s Motion for Findings and Conclusions
On 12 October 2016, plaintiff filed a motion pursuant to N.C. Gen. Stat. § 1A-
1, Rule 52 (2016) asking the trial court to enter findings and conclusions in its 29
September 2016 order. On appeal, plaintiff argues that the court erred by denying
this motion in its order of 5 December 2016. We conclude that the trial court did not
err by denying plaintiff’s motion.
It is long-established that “a trial court cannot make ‘findings of fact’
conclusive on appeal on a motion to dismiss for failure to state a claim under Rule
12(b)(6).” White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979). Moreover,
N.C. Gen. Stat. § 1A-1, Rule 52(b) provides in relevant part that “[u]pon motion of a
party made not later than 10 days after entry of judgment the court may amend its
findings or make additional findings and may amend the judgment accordingly.” In
this case, the order was entered on 29 September 2016, and plaintiff did not file her
motion until 12 October 2016, thirteen days after entry of judgment. Accordingly, the
trial court did not err by denying her motion as untimely.
Remaining Issues
We next address the two remaining issues raised in plaintiff’s appeal. Plaintiff
argues that the trial court “was absent authority” to conduct a hearing in Catawba
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WILSON V. SUNTRUST BANK
Opinion of the Court
County on 14 November 2016, on the grounds that this hearing was not held during
the session of court and in the county where the hearing of 15 August 2016 was
conducted. Plaintiff has failed to articulate a legal argument or to cite authority for
the proposition that the trial judge was required to wait until he was once again
assigned to Cabarrus County in order to rule on the issues raised by plaintiff’s
motions. See Andrews v. Peters, 89 N.C. App. 315, 317-18, 365 S.E.2d 709, 711 (1988)
(where this Court directed the entry of additional findings on remand, trial court did
not have to wait until reassigned to the county in which the original order was entered
before complying with this Court’s mandate).
Plaintiff also argues that the trial court erred by denying her motion to alter
or amend its order of 29 September 2016. Plaintiff’s motion argued that the trial
court lacked jurisdiction to conduct the hearing on 15 August 2016, and that the court
erred by failing to enter findings and conclusions in its 29 September 2016 order and
in the substantive rulings made in that order. These issues have been adequately
addressed elsewhere in this opinion. Accordingly, we dismiss this argument.
Motion to Dismiss Plaintiff’s Appeal in Part
On 21 July 2017, defendants SunTrust Mortgage and SunTrust Bank filed a
motion asking this Court to dismiss plaintiff’s complaint in part. We have elected to
address, as appropriate, the issues raised by plaintiff on appeal. Accordingly,
defendants’ motion is dismissed as moot.
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WILSON V. SUNTRUST BANK
Opinion of the Court
Conclusion
For the reasons discussed above, we conclude that the trial court did not err by
entering the 29 September 2016 order out of county, by dismissing plaintiff’s
complaint, or by denying plaintiff’s motion asking the trial court to “show cause” why
the court had jurisdiction. Because we conclude that the trial court did not err by
dismissing plaintiff’s complaint, we dismiss as moot plaintiff’s argument regarding
the denial of her motion for a temporary restraining order and preliminary injunction.
We further conclude that the trial court did not err by denying plaintiff’s motion for
entry of findings and conclusions, plaintiff’s motion asking the trial court to alter or
amend its judgment, or plaintiff’s challenge to the trial court’s authority to conduct a
hearing in Catawba County. In that we have addressed the issues raised in plaintiff’s
appeal, we dismiss as moot the motion filed by defendants SunTrust Bank and
SunTrust Mortgage for dismissal in part of plaintiff’s appeal.
AFFIRMED IN PART, DISMISSED AS MOOT IN PART.
Judges DAVIS and BERGER concur.
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