In re the Foreclosure of the Deed of Trust or Mortgage of Burgess

MARTIN (Robert M.), Judge. Respondents have brought forward four assignments of error on appeal. We find it necessary to consider only assignment of error no. 3. Therein the respondents argue that the trial court committed prejudicial error by making findings of fact and conclusions of law that there was no objection to the confirmation of the foreclosure sale. They argue that at the time the 16 April 1981 order was entered, three related cases, wherein respondents raised issues as to the title to the Burgess property and the terms of and balance owing on the promissory note to the Association, were pending in this Court. They further argue that the Clerk was aware of these pending appeals and should have stayed confirmation of the 6 February 1981 foreclosure sale. Since these appeals were still pending at the time Cline moved for ratification of the resale, Judge Cornelius should have continued the hearing on this motion. We disagree with respondents’ argument, and affirm the order of Judge Cornelius ratifying the Clerk’s confirmation of the resale and dismissing respondents’ appeal from said confirmation. [272] G.S. 45-21.29(h) requires that a resale cannot be consummated until it is confirmed by the clerk of superior court. Confirmation cannot take place until the time for submitting any upset bid has expired.3 It is uncontésted that no upset bid was submitted prior to the clerk’s confirmation. It therefore appears that the clerk was obligated by statute to confirm the resale. This Court, however, is not compelled to consider respondents’ arguments on their merit. Their argument, that the court should have stayed ratification pending the outcome of the respondents’ three cases on appeal to this Court, has become a moot issue. Each one of these cases has been heard by this Court and decided against respondents’ interests. We affirmed the 2 October 1980 order, wherein the trial court vacated a default judgment against Burgess and in favor of Southern Athletic/Bike. Southern Athletic/Bike v. House of Sports, Inc., 53 N.C. App. 804, 281 S.E. 2d 698 (1981), appeal dismissed and disc. review denied, 304 N.C. 729, 288 S.E. 2d 381 (1982). Respondent DuBose had represented the corporate plaintiff on appeal. We also affirmed the trial court’s 7 November 1980 order setting aside a sheriffs deed, wherein Burgess’ property had been conveyed to respondents. In re Execution Sale of Burgess, 55 N.C. App. 581, 286 S.E. 2d 362 (1982), cert. denied, 305 N.C. 585, 292 S.E. 2d 5 (1982). In DuBose v. Savings and Loan Assoc., 55 N.C. App. 574, --- S.E. 2d --- (No. 8127SC298, filed 2 February 1982), cert. denied, --- N.C. ---, --- S.E. 2d --- (No. 71P82, filed 4 May 1982), we specifically held that the trial court did not err in dissolving the temporary restraining order and in denying respondents’ motion for a preliminary injunction thereby allowing the Association to consummate the sale of the land at issue. In addition we concluded: Because plaintiffs (DuBose and Bernhardt) obtained neither a stay of execution from the trial court pursuant to Rule 62 of the North Carolina Rules of Civil Procedure nor a temporary stay or a writ of supersedeas from this Court pursuant to Rules 8 and 23 of the North Carolina Rules of Appellate Procedure, the sale of the property to Billie Cline rendered the questions raised by plaintiffs moot. [273] Id. at 580, 286 S.E. 2d at 621. This conclusion applies equally to the situation before us now. The following quotation cited in In re Execution Sale of Burgess, supra, further supports our conclusion that respondents’ argument is moot. When, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court. [Citations omitted.] Davis v. Zoning Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255 S.E. 2d 444, 446 (1979). In the case sub judice, respondents’ appeal from the trial court’s denial of their motion to continue pending disposition of appeals filed in this Court, is clearly moot because disposition has taken place. We also find no merit to respondents’ argument that the Clerk violated her duty under G.S. 45-21.29(j) when she confirmed the resale; and that the trial court thereby improperly ratified the order of confirmation. This argument is apparently based upon a motion, filed by respondent DuBose, to restrain confirmation of the resale. This motion was filed along with an action, neither of which appears in the record on appeal. The record merely contains a 26 February 1981 order wherein the trial court dismissed DuBose’s action and denied his motion. The court noted: that the prior pending action entitled “Horace M. DuBose, III, Trustee, and Robert J. Bernhardt, Trustee, as their interests may appear vs. Gastonia Mutual Savings & Loan Association and L. B. Hollowell, Jr., Trustee” and presently an appeal before the North Carolina Court of Appeals is res judicata as to the matters and things alleged in the subject action . . .. The day after this order was filed the Clerk entered her order of confirmation. Respondents contend that the Clerk should have stayed confirmation of the resale pending the running of the time to appeal from the 26 February 1981 order. Such conduct by the Clerk allegedly would have been consistent with G.S. 45-21.29(j) ™bich provides: [274] The clerk of the superior court shall make all such orders as may be just and necessary to safeguard the interests of all parties, and shall have authority to fix and determine all necessary procedural details with respect to resales in all instances in which this Article fails to make definite provision as to such procedure. We disagree with respondents’ argument. At the time the Clerk ordered confirmation of the resale, no upset bid had been filed nor had any notice of appeal been given from the 26 February 1981 order. It is obvious that respondents were aware of the resale’s impending confirmation and, in good judgment, should have given notice of appeal immediately after the order was entered. We believe the Clerk acted consistently with G.S. 45-21.29(j) when she confirmed the resale, thus safeguarding Cline’s interests. Irrespective of respondents’ contentions, we are bound by the conclusions of the trial court in the 26 February 1981 order that the pending appeal in DuBose v. Savings and Loan Assoc., supra, is res judicata to the action initiated by respondent DuBose and that the motion for a restraining order be denied. Specifically we must presume that said order is correct, because neither DuBose’s action nor his motion is in the record before us. Moseley v. Trust Co., 19 N.C. App. 137, 198 S.E. 2d 36, cert. denied, 284 N.C. 121, 199 S.E. 2d 659 (1973); Crotts v. Pawn Shop, 16 N.C. App. 392, 192 S.E. 2d 55, cert. denied, 282 N.C. 425, 192 S.E. 2d 835 (1972). For the foregoing reasons, the order of the trial court is Affirmed. Judges Vaughn and Arnold concur. Footnotes [3] Any upset bid must be submitted within ten days after the filing of the report of the sale. G.S. 45-21.27.