In re foreclosure of Harty

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. 13-1453
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
In the Matter of the Foreclosure
of The Deed of Trust from Edward
J. Harty and Margaret L. Harty,
Grantors, Union County
No. 12 SP 1003
Recorded in Book 1890, Page 170
Of the Union County Public
Registry, Trustee Services of
Carolina, LLC, Substitute Trustee.
Appeal by respondents from order entered 12 June 2013 by
Judge W. David Lee in Union County Superior Court. Heard in the
Court of Appeals 5 May 2014.
K&L Gates LLP, by John H. Capitano, for petitioner-
appellee.
Clark, Giffin & McCollum, by Joe P. McCollum, Jr., for
respondent-appellants.
STEELMAN, Judge.
The trial court’s finding that respondents had defaulted on
their loan was supported by competent evidence. The record
reflects the appointment of a substitute trustee, the trial
court’s order identifies the holder of the note, and respondents
failed to preserve for appellate review the court’s admission of
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evidence of a power of attorney held by New York Mellon. The
trial court did not err by allowing the foreclosure to proceed.
I. Factual and Procedural History
On 13 August 2002 Edward J. Harty and his wife, Margaret L.
Harty, (respondents) executed a note and deed of trust in favor
of GreenPoint Mortgage in the amount of $177,800.00. This is the
second appeal to this Court arising from respondents’ failure to
make payments due under the note and deed of trust. See Harty v.
Underhill, 211 N.C. App. 546, 547, 710 S.E.2d 327, 329 (2011)
(Harty I). Respondents became delinquent on their loan payments
in 2003, and on 1 December 2003 respondents and GreenPoint
entered into a forbearance agreement which provided in relevant
part that:
The above-referenced mortgage is in default
due to the non-payment of the required
monthly mortgage payments. The total
mortgage arrears, as calculated through
December 11, 2003, are $8,617.16.
GreenPoint is willing to extend to you the
opportunity to repay the mortgage arrears in
accordance with the terms and conditions set
forth herein. It is expressly understood
that in consideration of GreenPoint
extending any forbearance for a period of
time, it is necessary that you comply in all
respects with the following terms and
conditions:
. . .
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4. Completion of Agreement. Assuming all
payments required to be tendered herein are
made on time and no other charges are
incurred, subject to this agreement, the
mortgage loan will be brought current and
any foreclosure action commenced against you
will be discontinued.
5. Schedule of Payments. GreenPoint will
provide you with a Schedule of payments[.] .
. . It is your obligation to tender timely
and full payment in accordance with the
terms and conditions of this Agreement. . .
.
6. Manner of Payment. ALL PAYMENTS REQUIRED
TO BE TENDERED UNDER THE TERMS AND
CONDITIONS OF THIS AGREEMENT MUST BE IN THE
FORM OF CERTIFIED OR BANK CHECKS OR MONEY
ORDERS ONLY. PERSONAL CHECKS, CORPORATE
CHECKS AND CASH WILL NOT BE ACCEPTED.
7. Effect of Default under Agreement. IF YOU
DEFAULT UNDER THE TERMS OF THIS AGREEMENT,
THIS AGREEMENT WILL BE TERMINATED WITHOUT
NOTICE TO YOU AND ANY FORECLOSURE ACTION
THAT MAY HAVE BEEN COMMENCED AGAINST YOU
WILL RESUME. ANY PAYMENT MADE AFTER DEFAULT
WILL BE RETURNED TO YOU.
8. Due Dates for Monthly Payments. ALL
MONTHLY PAYMENTS REQUIRED UNDER THIS
AGREEMENT ARE DUE ON THE FIRST DAY OF EACH
MONTH. GREENPOINT RESERVES THE RIGHT TO
REJECT ANY PAYMENT AND DECLARE A DEFAULT
UNDER THIS AGREEMENT IF (1) PAYMENT IS NOT
RECEIVED BY GREENPOINT BY THE 16TH DAY OF
THE MONTH WHEN THE PAYMENT IS DUE OR (2) THE
PAYMENT IS LESS THAN THE FULL AMOUNT OF THE
PAYMENT REQUIRED UNDER THIS AGREEMENT.
. . .
10. Changes to Monthly Mortgage Payment.
Your monthly mortgage payment may change
during the term of this Agreement based on a
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number of factors[.] . . . You hereby agree
to make such adjustments in the payments
when notified . . . or be deemed in default
hereof, even if such notification of an
adjustment occurs after the last payment . .
. under this Agreement. You must contact
GreenPoint prior to the last payment under
this Agreement to inquire if any additional
amounts must be tendered for yearly
adjustment of the mortgage payments.
. . .
12. Effect of Forbearance on existing
Foreclosure Action. THIS AGREEMENT DOES NOT
DISCONTINUE ANY EXISTING FORECLOSURE
PROCEEDING THAT HAS BEEN COMMENCED WITH
RESPECT TO THIS MORTGAGE. THIS AGREEMENT
MERELY SUSPENDS SUCH PROCEEDING AND YOUR
FAILURE TO COMPLY WITH THIS AGREEMENT WILL
RESULT IN THE FORECLOSURE PROCEEDING BEING
RESUMED FROM THE APPROPRIATE STAGE. . . .
13. Waiver of Notice of Default. YOU HEREBY
WAIVE ANY FURTHER NOTICE OF DEFAULT UNDER
THE MORTGAGE OR THIS AGREEMENT THEREBY
PERMITTING GREENPOINT TO RESUME ANY
FORECLOSURE PROCEEDING UPON THE OCCURRENCE
OF A DEFAULT WITHOUT NOTICE.
. . .
16. Time of the Essence. TIME IS OF THE
ESSENCE WITH RESPECT TO ALL DATES SET FORTH
HEREIN.
(all caps and underlining in original). “Plaintiffs1 executed the
Forbearance Agreement, and Greenpoint conditionally suspended
foreclosure proceedings based upon plaintiffs’ regular monthly
1
Because Harty I arose in the context of a lawsuit seeking to
enjoin foreclosure, rather than a foreclosure proceeding,
respondents and petitioner are referred to in Harty I as
plaintiffs and defendant respectively.
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payments and payments toward the arrears. . . . Approximately
four months after plaintiffs executed the Forbearance Agreement
with Greenpoint, plaintiffs’ deed of trust was transferred from
Greenpoint to Countrywide, subject to the Forbearance Agreement.
. . . Plaintiffs were still required to make their monthly
payments by the sixteenth day of each month to comply with the
time-is-of-the-essence clause.” Harty I, 211 N.C. App. at 547,
710 S.E.2d at 329.
It is undisputed that respondents’ December 2004 payment
was not made until February 2005, placing respondents in default
under the terms of the Forbearance Agreement. In January 2005,
Countrywide notified respondents that the mortgage was in
default. “Since the Forbearance Agreement permitted defendants
to resume foreclosure proceedings without notice, defendants
initiated foreclosure proceedings by reporting plaintiffs’
default to the trustees. The trustees initiated foreclosure
proceedings against plaintiffs in June 2005.” Harty I at 548,
710 S.E.2d at 329. “On 5 July 2007, the Clerk of Court of Union
County” entered an order “finding that the substitute trustee
could proceed to foreclosure under the terms of plaintiffs’ deed
of trust.” Id.Respondents appealed the Clerk’s order to Superior Court;
the record contains no indication that this appeal was pursued.
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Countrywide Home Loans became part of Bank of America pursuant
to a merger in July 2007. “[O]n 23 July 2007, plaintiffs filed a
complaint against defendants in Union County Superior Court.
Plaintiffs alleged defendants’ actions constituted unfair and
deceptive practices (‘UDP’) and tortious interference with
contract, and asserted equitable challenges to the foreclosure
under N.C. Gen. Stat. § 45-21.34.” “On 10 July 2009, defendants
filed a motion for summary judgment, alleging, inter alia, that
plaintiffs failed to forecast evidence necessary to establish
claims for UDP, tortious interference with contract, and N.C.
Gen. Stat. § 45-21.34. . . . [T]he trial court granted
defendants’ motion for summary judgment and dismissed all claims
against defendants with prejudice on 26 October 2009.” Harty I
at 548, 710 S.E.2d at 330.
Respondents appealed to this Court, which affirmed the
trial court’s orders in Harty I, filed 3 May 2011. On 25
November 2011, Bank of America sent respondents a Notice of
Intent to Accelerate, informing them that their loan was in
serious default for failure to make payments, that a payment of
$88,787.23 was required to bring the loan current, and that if
the default were not cured by 25 December 2011, “the mortgage
payments will be accelerated with the full amount . . . due and
payable in full, and foreclosure proceedings will be initiated
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at that time.” Respondents had made no payments since February
2005, and they failed to make any payments after receiving the
Notice of Intent to Accelerate.
On 30 November 2011 Bank of America assigned the note and
deed of trust to Bank of New York Mellon as trustee. Bank of
America held a power of attorney authorizing it to act on behalf
of Bank of New York Mellon. On 9 January 2012 Bank of America
sent respondents a notice of the updated payoff amount, and
provided respondents with information about means by which they
might avoid foreclosure, including loan modification or the
involvement of an agency approved by the U.S. Department of
Housing and Urban Development. The record contains no evidence
that respondents sought to avail themselves of any of these
mechanisms to avoid foreclosure. On 29 June 2012 Trustee
Services of Carolina, LLC, (petitioner) was appointed as
substitute trustee. On 10 July 2012 the trustee filed a notice
of foreclosure hearing. After conducting a hearing, the Union
County Clerk of Court entered an order on 25 March 2013
dismissing the petition for foreclosure. Petitioner appealed to
Superior Court and the trial court conducted a hearing on 20 May
2013. On 12 June 2013 the trial judge entered an order
authorizing petitioner to proceed with the foreclosure sale.
Respondents appeal.
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II. Standard of Review
“Under N.C.G.S. § 45-21.16(d), four elements must be
established before the clerk of superior court authorizes a
mortgagee or trustee to proceed with foreclosure by power of
sale: ‘(i) [a] valid debt of which the party seeking to
foreclose is the holder, (ii) default, (iii) right to foreclose
under the instrument, [and] (iv) notice to those entitled to
such[.]’ N.C.G.S. § 45-21.16(d) (2011).” In re Foreclosure of
Bass, 366 N.C. 464, 467, 738 S.E.2d 173, 175 (2013).
The clerk’s findings are appealable to the
superior court for a hearing de novo;
however, the superior court’s authority is
similarly limited to determining whether the
criteria enumerated in N.C. Gen. Stat. § 45—
21.16(d) have been satisfied. The superior
court “has no equitable jurisdiction and
cannot enjoin foreclosure upon any ground
other than the ones stated in [N.C. Gen.
Stat. § ] 45—21.16.”
In re Foreclosure of a [Deed of] Trust by Raynor, __ N.C. App.
__, __, 748 S.E.2d 579, 583 (2013) (citing Mosler v. Druid Hills
Land Co., 199 N.C. App. 293, 295—96, 681 S.E.2d 456, 458 (2009),
and quoting In re Foreclosure of a Deed of Trust, 55 N.C. App.
68, 71—72, 284 S.E.2d 553, 555 (1981)).
“‘The applicable standard of review on appeal where, as
here, the trial court sits without a jury, is whether competent
evidence exists to support the trial court’s findings of fact
and whether the conclusions reached were proper in light of the
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findings. Competent evidence is evidence that a reasonable mind
might accept as adequate to support the finding.’ ‘Conclusions
of law drawn by the trial court from its findings of fact are
reviewable de novo on appeal.’” In re Manning, __ N.C. App. __,
__, 747 S.E.2d 286, 289 (2013) (quoting In re Foreclosure of
Adams, 204 N.C. App. 318, 320-21, 693 S.E.2d 705, 708 (2010)
(internal quotation omitted), and Bass, 366 N.C. at 467, 738
S.E.2d at 175 (internal citation omitted). In addition:
A trial judge “passes upon the credibility
of the witnesses and the weight to be given
their testimony and the reasonable
inferences to be drawn therefrom.” . . .
“The trial court must itself determine what
pertinent facts are actually established by
the evidence before it, and it is not for an
appellate court to determine de novo the
weight and credibility to be given to
evidence disclosed by the record on appeal.”
Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994)
(quoting Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29,
33 (1968), and Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d
185, 189 (1980)).
III. Finding of Default
Respondents argue first that the trial court erred in
finding that “the deed of trust was in default at the time of
the notice of foreclosure” on the grounds that this finding “is
unsupported by the evidence.” Respondents contend that there was
“insufficient evidence to support” the trial court’s finding
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that they had failed to make payments in accordance with the
terms of the note. We disagree.
Respondents assert that in its January 2005 notice of
default, petitioner failed to properly credit them for certain
payments made in the fall of 2004. However, respondents do not
challenge the undisputed evidence establishing that:
1. On 13 August 2002 respondents obtained a
loan from GreenPoint Mortgage Funding, Inc.,
in the amount of $177,800.00. The terms of
this loan required respondents to make
monthly mortgage payments.
2. Respondents defaulted on their loan
payments, and on 1 December 2003 GreenPoint
and respondents executed a forebearance
agreement stating terms under which
respondents might bring their loan current.
3. The forbearance agreement stated that it
was “expressly understood” that, in order to
remedy the default, respondents were
required to “comply in all respects” with
the terms and conditions of the forbearance
agreement. These terms included in relevant
part requirements that:
(a) payments were due no later than the 16th
of each month;
(b) time was of the essence regarding the
payment dates;
(c) payments would only be accepted in the
form of certified or bank checks or money
orders; cash and personal checks would not
be accepted;
(d) petitioner reserved “the right to
reject” any payments that were late or
incomplete, and;
(e) respondents’ failure to comply with the
terms of the forbearance agreement would
result in termination of the agreement
without notice to respondents.
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4. During the time period covered by the
forbearance agreement respondents (a) made
payments by personal check; (b) made at
least one payment that was not for the full
amount due; and (c) failed to make a payment
for December 2004 until February 2005.
This undisputed evidence establishes as a matter of law
that by January 2005 respondents were in default under the terms
of the forbearance agreement. Moreover, it is equally undisputed
that respondents have made no payments on their mortgage loan
since February 2005, despite being notified repeatedly that
their loan was in default. In addition, respondents admit that
they failed to make any payments in response to the November
2011 Notice of Intent to Accelerate or the January 2012 notice
from petitioner. Respondents do not dispute the validity of the
original loan, or the fact that at the time the trial court
entered its order allowing foreclosure to proceed, respondents
had made no payments towards their mortgage loan for more than
eight years. We hold that this evidence amply supported the
trial court’s finding on the issue of default.
In urging us to reach a contrary conclusion, respondents
first contend that the trial court should have made findings
concerning the forbearance agreement. Appellants assert that the
“forbearance agreement provided that if the payments were made,
then the mortgage loan would be brought current.” Respondents
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fail to acknowledge that the forbearance agreement expressly
provides that (1) time is of the essence with regard to dates
set out in the agreement; (2) payments are due on the first of
each month and no later than the 16th of the month; (3) default
will result in the termination of the agreement, and; (4)
respondents waive any further notice of default. It is
undisputed that the payment due on 1 December 2004 was not made
until February 2005, resulting in default under the express
terms of the agreement.
Respondents also argue that the fact that petitioner did
not return the payment submitted in February 2005 “would seem to
indicate that the bank at that time did not consider them to be
in default,” an argument rejected by this Court in Harty I:
According to defendants’ evidence,
plaintiffs were put on notice at the time of
the execution of the contract that failure
to comply with the dates could lead to an
automatic initiation of foreclosure
proceedings. There is no dispute that
plaintiffs’ payments were repeatedly
received after the sixteenth day of the
month in which they were due, at least one
of the monthly payments was for less than
the amount due, and the payment due in
December 2004 was not made until 25 February
2005. Plaintiffs argue that defendants
waived the time-is-of-the-essence clause and
any irregularities in plaintiffs’ payments
by accepting payments after the sixteenth
day of the month in which the payments were
due. . . . However, the contract in the
instant case provided a waiver of notice of
default and provided that foreclosure
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proceedings could resume upon the occurrence
of default without any additional notice.
Harty I at 553, 710 S.E.2d at 332-33.
Respondents also assert that a statement by petitioner’s
counsel during the hearing, indicating that petitioner was
foreclosing on the principal amount of the loan and did not
consider respondents to be in default with regards to interest
payments, establishes that they were not in default at the time
petitioner first initiated foreclosure proceedings. It is
axiomatic that “[s]tatements by an attorney are not considered
evidence.” In re D.L., A. L., 166 N.C. App. 574, 582, 603 S.E.2d
376, 382 (2004) (citing State v. Haislip, 79 N.C. App. 656, 658,
339 S.E.2d 832, 834 (1986)).
Respondents also place emphasis on their contention that
they had a dispute with petitioner in 2005 concerning the basis
and amount of fees imposed by petitioner in addition to the
payments made under the Forbearance Agreement. Respondents cite
no authority for the proposition that a 2005 dispute over late
fees or other charges excused them from making any payments for
the following 8 years. Moreover, regardless of the status of
respondents’ loan in early 2005, it is undisputed that they have
made no payments since then and failed to cure the default when
notified in November 2011. We hold that the trial court did not
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err by finding that respondents defaulted on their mortgage
obligation.
IV. Appointment of Substitute Trustee
Respondents argue next that the trial court erred by
finding that the substitute trustee had been “duly designated
and empowered by the terms of the deed of trust to foreclose.”
Respondents contend that “[n]owhere in the record is there any
record or indication that the holder has appointed Trustee
Services of Carolina, LLC as substitute Trustee in this matter.”
We disagree.
Respondents’ argument, that there is no evidence in the
record establishing the appointment of the substitute trustee,
differs from the argument that they presented to the trial court
during the hearing on this matter:
[RESPONDENTS’ COUNSEL]: Judge, the first
question I have is whether or not the
Substitute Trustee in this matter has been
duly appointed. And I have a certified copy
of the appointment of Substitute Trustee. .
. . And the question I raise is on the
notarization line, Bank of New York Mellon
through their attorney-in-fact, Bank of
America. It has the name of Joshua Temple,
Assistant Vice President apparently out of
Dallas, Texas. But there is nothing to show
– there’s no document that I have seen that
has been - where we have been furnished a
Statement of Attorney-in-Fact of where this
is recorded in any way to make this a valid
appointment. We don’t have an Attorney-in-
Fact document. (emphasis added).
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. . .
THE COURT: Mr. McCollum, I’m not sure I’m
following what your concern is.
[RESPONDENTS’ COUNSEL]: My concern is that
nothing is in the record to show at this
point that there is an Attorney-in-Fact
relationship; he signs as Attorney-in-Fact.
But we don’t have either the Power of
Attorney or anything - normally what I have
observed is, it’s recorded in somewhere in
the book and page records. But we have no
evidence that they are in fact, uh,
Attorney-in-Fact or this person was --
. . .
THE COURT: You’re not questioning the
authority of Joshua Temple to act on behalf
of Bank of America. You’re questioning the –
[RESPONDENTS’ COUNSEL]: Well, there’s
nothing to show that he can.
THE COURT: Okay. The underlying instrument
that would authorize him to act?
[RESPONDENTS’ COUNSEL]: That’s correct.
. . .
THE COURT: I’m not sure – I think if I
understand your argument, Mr. McCollum, the
declaration of someone that they are an
agent for someone else doesn’t make them the
agent.
[RESPONDENTS’ COUNSEL]: No, sir.
The transcript makes it clear that, at the trial level,
respondents challenged only the documentation establishing that
the person purporting to act on behalf of the holder of the note
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had been properly appointed. Respondents did not dispute that
the substitute trustee had been appointed and, in fact, provided
the trial court with the document setting out the appointment of
a substitute trustee. “‘[Respondent] may not swap horses after
trial in order to obtain a thoroughbred upon appeal.’” State v.
Bell, 359 N.C. 1, 31, 603 S.E.2d 93, 114 (2004) (quoting State
v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)).
Respondents have not preserved this issue for review. Bell, 359
N.C. at 31, 603 S.E.2d at 114 (“Defendant did not object to the
sufficiency of the evidence to support the pecuniary gain
aggravating circumstance at trial and has not preserved this
issue for appellate review. N.C. R. App. P. 10(b)(1).”).
Moreover, contrary to respondents’ contention, the record
does contain the recorded appointment of substitute trustee
(Book 5766 at page 400 of the Union County Public Registry),
which was submitted to this Court under Rule 9(b)(5) of the
Rules of Appellate Procedure. This argument lacks merit.
V. Finding Concerning Holder of Note
Respondents argue next that the trial court “did not find
as a fact that the Bank of New York Mellon is the holder of the
note and deed of trust.” Respondents do not dispute that the
bank is the holder, but argue only that the court failed to make
a finding to this effect. We do not agree.
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In its order, the trial court found that respondents had
“executed to the order of GreenPoint Mortgage Funding, Inc. that
certain promissory note dated August 13, 2002 in the original
principal amount of $177,800.00, evidencing a valid debt of
which the party seeking to foreclose is the current holder.”
(emphasis added). It is undisputed that “the party seeking to
foreclose” is The Bank of New York Mellon. We hold that the
trial court adequately identified the holder of the note:
Respondents’ final argument is that the
order of the trial court “does not comply
with the requirements of the foreclosure
statute.” Respondents argue that there was
not a proper finding that Robert Carpenter
and Edith Carpenter were holders of a valid
debt. In his order, the judge referred to
Robert Carpenter and Edith Carpenter as
holders when he stated that “the holders of
the Note” presented evidence of ownership. .
. . In any event, the intent of the trial
court is plain, and we will not reverse the
trial court for harmless error.
In re Cooke, 37 N.C. App. 575, 580, 246 S.E.2d 801, 805 (1978).
This argument lacks merit.
VI. Conclusion of Law Regarding Default
Respondents argue next that the trial court erred in its
conclusion that there was a default under the promissory note.
No new argument is advanced. Instead, respondents simply adopt
their argument regarding the court’s finding of a default. For
the reasons discussed in regards to that argument, in Section
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III of this opinion, we hold that this argument is without
merit.
VII. Admission of Evidence of Power of Attorney
Respondents argue next that the trial court “erred in
considering over objection the power of attorney of New York
Mellon” that “purported to allow [Bank of America] to sign
papers concerning foreclosures and related matters.” This
argument lacks merit.
The appointment of Trustee Services of Carolina, LLC, as
substitute trustee was executed by The Bank of New York Mellon
through its attorney in fact, the Bank of America. At trial,
respondents challenged the documentation establishing that Bank
of America had been designated as attorney in fact for Bank of
New York Mellon. The trial court agreed to allow petitioner to
submit the pertinent document after the hearing, a procedure to
which respondents did not object.
On appeal, respondents do not challenge the authority of
Bank of America to appoint a substitute trustee on behalf of
Bank of New York Mellon. Instead, their argument is narrowly
focused on the trial court’s “consideration” of the document
setting out the attorney in fact relationship between the two
banks, which we interpret this as a challenge to the admission
of the power of attorney document. Respondents contend that this
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document was “over objection,” an assertion based on an email in
which respondents’ counsel wrote that he “would like to express
[his] objection to the document[.]” We conclude that respondents
have not preserved this issue for our review.
Rule 10(a)(1) or our Rules of Appellate Procedure provides
that “to preserve an issue for appellate review, a party must
have presented to the trial court a timely request, objection,
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not
apparent from the context. It is also necessary for the
complaining party to obtain a ruling upon the party's request,
objection, or motion.”
Assuming, arguendo, that counsel’s statement in an email
constituted a valid objection, respondents did not obtain a
ruling on the objection. Moreover, on appeal respondents fail to
advance any legal basis for the objection or any argument as to
why the document was not admissible. This argument is dismissed.
VIII. Order Allowing Foreclosure to Proceed
Finally, respondents argue that the trial court “erred in
entering the order allowing the foreclosure to proceed.”
Respondents rely upon their other arguments, and assert that
they “have shown through testimony and law that there was not
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competent evidence to support the judgment and order in this
case.” For the reasons discussed above, we disagree.
Respondents also suggest that the trial court erred by
failing to determine the amount owed, and argue that respondents
“cannot make payment if it cannot be determined how much that
payment should be.” However, “determination of the amount owed
on a debt is beyond the scope of the hearing under G.S. 45-
21.16[.]” In re Foreclosure of Burgess, 47 N.C. App. 599, 604,
267 S.E.2d 915, 918 (1980).
For the reasons discussed above, we conclude that the trial
court’s order should be
AFFIRMED.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).