Backer v. Gomez

JOHNSON, Judge. By their sole issue raised in this appeal, defendants contend that the Superior Court judgment of 4 October 1984 terminating plaintiffs’ lease with Homeland, Inc. precluded plaintiffs from asserting any leasehold rights under the lease. We disagree. N.C.G.S. 1-289 regarding undertaking to stay execution on a money judgment provides in pertinent part that: If the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. N.C.G.S. 1-292 regarding undertaking to stay judgment on real property provides in pertinent part that: If the judgment appealed from directs the sale or delivery of possession of real property, the execution is not stayed, unless a bond is executed on the part of the appellant, with one or more sureties, to the effect that, during his possession of such property, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment is affirmed he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof pursuant to the judgment. . . . Defendants concede in their brief that plaintiffs obtained a stay of execution on the judgment awarding damages and ter [231] minating plaintiffs’ lease with Homeland, Inc. However, notwithstanding the order staying execution on the judgment and leaving plaintiffs in possession of the property, defendants argue that the Superior Court judgment terminating plaintiffs’ leasehold interest in the property remained in full force and effect and precluded plaintiffs from thereafter seeking possession and damages against defendants in the instant case. Defendants rely upon N.C.G.S. 1-296 which reads as follows: The stay of proceedings provided for in this Article shall not be construed to vacate the judgment appealed from, but in all cases such judgment remains in full force and effect, and its lien remains unimpaired, notwithstanding the giving of the undertaking or making the deposit required in this Chapter, until such judgment is reversed or modified by the appellate division. In our research we have been unable to find a case similar to the case at hand wherein a lessee seeks to proceed against his subtenant for possession and damages pending appeal of a judgment terminating the lease between the owner in fee and the lessee; and where the lessee has been granted a stay of execution and left in possession of the property. We agree with defendants that a stay of the proceedings as provided under N.C.G.S. ch. 1, art. 27 does not operate to vacate the judgment terminating plaintiffs’ lease with Homeland, Inc. However, the appeal placed the judgment in a state of suspension. Bond v. Wool, 113 N.C. 20, 18 S.E. 77 (1893). Under the stay of execution pursuant to N.C.G.S. 1-289 and 1-292, plaintiffs, by maintaining possession, would be liable to Homeland, Inc. for any waste they committed or allowed to be committed on the property, and if the judgment is affirmed, plaintiffs would also be required to pay the value of the use and occupation of the property, from the time of the appeal until delivery of possession of the property pursuant to the judgment. Therefore, it seems clear to us that by maintaining possession pursuant to the stay of execution order, plaintiffs remained vested with a possessory and proprietary interest in the property, whieh interest they had a right to protect. Defendants’ possession and proprietary rights in the property are derived solely through the possessory and proprietary rights vested in the plaintiffs. Therefore, in light of the order staying execution on the [232] judgment and leaving plaintiffs in possession, plaintiffs were not precluded from proceeding against defendants, their subtenants. We also take judicial notice that this Court reversed the judgment terminating plaintiffs’ lease with Homeland, Inc. Homeland, Inc. v. Backer, 78 N.C. App. 477, 337 S.E. 2d 114 (1985). This Court’s decision vacating the judgment relates back to the time the judgment was entered and renders it null and void, ab initio. The proceeding is left where it stood before the judgment was entered, and the parties stand in the same position as if no such judgment had ever been rendered. For this reason also, the issue defendants raise in this appeal is moot. Defendants raise several other questions by assignments of error on appeal from trial; however, defendants failed to present or discuss any of them in their brief for review on appeal. These questions are deemed abandoned. Rule 28(a), N.C. Rules App. P. The judgment of District Court is Affirmed. Chief Judge HEDRICK and Judge PHILLIPS concur.