Short v. Bryant , 97 N.C. App. 327 ( 1990 )

388 S.E.2d 205 (1990) 97 N.C. App. 327

Mrs. John J. SHORT, and Harry G. Bryant, Plaintiffs,
v.
George A. BRYANT, Jr. as Executor of the Estate of George A. Bryant, Sr., et al., Defendants.

No. 8921SC549.

Court of Appeals of North Carolina.

February 6, 1990.

Joseph T. Carruthers, Bell, Davis & Pitt, Winston-Salem, for plaintiff-appellee.

George A. Bryant, Jr., defendant-appellant, pro se.

PHILLIPS, Judge.

Defendant's first assignment of error concerns the court's denial of his motion to cancel the Sheriff's Deed conveying defendant's property to the purchasers of it at auction. He contends that the price received was inadequate and that "other circumstances," when combined with the inadequate price, warrant cancellation of the deed. While theoretically correct, defendant has failed to show any other circumstances to justify his contention. Inadequacy of price alone is insufficient to declare a deed issued pursuant to an execution sale void. Weir v. Weir, 196 N.C. 268, 145 S.E. 281 (1928). To void such a deed a showing of some trick, oppression, artifice, fraud or undue advantage is required, Weir v. Weir, supra, and defendant has made no such showing.

His next assignment of error concerns the awarding of attorney's fees to plaintiffs under G.S. 6-21.5, which became effective on 1 October 1984, and contends that as the underlying action arose in 1983, he is exempt from the sanctions imposed by the statute. We disagree. G.S. 6-21.5 states in part that upon motion by the prevailing party the court may award attorney's fees if it finds there was a "complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading." The legislative purpose of this statute is to discourage frivolous legal action and that purpose may not be circumvented by limiting the statute's application to the initial pleadings. Frivolous action in a lawsuit can occur at any stage of the proceeding and whenever it occurs is subject to the legislative ban. The consent judgment, which defendant entered into, effectively brought the original case to a close; his motion to cancel the Sheriff's Deed raised new issues for which he is accountable, and the attorney fees assessed against him are only those incurred in combating those issues.

Affirmed.

HEDRICK, C.J., and ARNOLD, J., concur.