Townsend v. Simmons ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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-