Opinion
No. COA03-992
Filed June 1, 2004 This case not for publication
Appeal by plaintiffs from order entered 3 March 2003 by Judge Preston Cornelius in Jackson County Superior Court. Heard in the Court of Appeals 22 April 2004.
Henry A. Morroni and F. Annette Morroni, pro se, for plaintiffs-appellants. Ferikes Bleynat, P.L.L.C., by Joseph A. Ferikes, for defendants-appellees. Lawrence S. Maitin, Substitute Trustee.
Jackson County No. 02 CVS 584.
Plaintiffs (Henry A. and F. Annette Morroni) appeal from a superior court order dismissing their claims for declaratory and injunctive relief involving a completed foreclosure sale. For the reasons that follow, we conclude that plaintiffs' appeal must be dismissed as moot. On 27 March 2002, the Clerk of Superior Court of Jackson County entered an order finding that property, in which plaintiffs alleged an interest, could be foreclosed upon under a valid deed of trust. The Clerk's order was never appealed. Rather, plaintiffs filed a number of additional actions seeking to have the Clerk's order vacated and/or any proceedings under it stayed, none of which resulted in relief for plaintiffs. On or about 23 October 2002, plaintiffs filed the complaint at issue in the present case in Jackson County Superior Court, seeking a declaration concerning the relative rights of the parties and enjoinment of the foreclosure proceedings.
During the pendency of plaintiff's action, on 16 December 2002, a foreclosure sale took place. There is no evidence in the record that plaintiffs either deposited the amount of debt owed with the Jackson County Clerk, or filed an upset bid to prevent sale to another party. On 10 February 2003 a deed was signed conveying the property to Richard M. Ansay and Sylvia Ansay, Co-Trustees of the Richard M. Ansay and Sylvia Ansay Trust. Following the foreclosure sale, on or about 14 February 2003, defendants filed a motion to dismiss alleging, inter alia, that plaintiffs' complaint failed to state a claim upon which relief could be granted. Specifically, defendants' motion contended that plaintiffs' action was moot because the superior court could not enjoin a foreclosure sale that had already taken place. In an order dated 3 March 2003, the superior court granted the motion to dismiss. From this order, plaintiffs appeal.
Plaintiffs filed a bankruptcy action in the United States Bankruptcy Court for the Middle District of Florida to avoid foreclosure of the subject property. The Bankruptcy Court dismissed plaintiff's bankruptcy case and explicitly held that the automatic stay in bankruptcy was "void ab initio and a nullity" in plaintiff's case, such that the foreclosure sale was "valid to the extent it [was] valid under state law."
Before discussing the dispositive legal issues in this case, we note that the appellants have committed numerous and substantial violations of the North Carolina Rules of Appellate Procedure. The record on appeal, which does not comport with N.C.R. App. P. 9, is difficult to navigate. Appellants' brief does not comply with the requirements as to form and function of legal briefs set forth in N.C.R. App. P. 28. The cumulative effect of these procedural violations has been to severely hamper our review.
Though we are aware that the Rules of Appellate procedure may be complex for self-represented parties, the Rules serve a very important role in permitting this Court to effectively decide the legal issues placed before it. For this and other reasons, it has been held that the Rules of Appellate Procedure "apply to everyone — whether acting pro se or being represented by all of the five largest law firms in the state." Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999) ( per curiam). Therefore, noncompliance may result in dismissal of an appeal. Id. In the instant case, however, we are persuaded that the interests of justice will be served by addressing the dispositive issue of law: mootness.
The mootness doctrine is "[t]he principle that American courts will not decide . . . cases in which there is no longer any actual controversy." Black's Law Dictionary 1025 (7th ed. 1999). "A case is considered moot when `a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.'" Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003) (quoting Roberts v. Madison Cty. Realtors Ass'n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996))). Accordingly, "[w]henever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978). When the questions originally at issue in a case are no longer at issue when the case is on appeal, the appeal is moot and should be dismissed. N.C. Press Assoc., Inc. v. Spangler, 87 N.C. App. 169, 171, 360 S.E.2d 138, 139 (1987).
Where a clerk of court issues an order respecting foreclosure, N.C.G.S. § 45-21.16(d1) (2003) permits an interested party to appeal the order to "the judge of the district or superior court having jurisdiction at any time within 10 days[.]" The court is, however, limited to reviewing those matters which were before the clerk. In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978). An interested party also may obtain equitable relief by filing a separate action to enjoin the foreclosure pursuant to N.C.G.S. § 45-21.34 (2003):
Any owner of real estate, or other person [or entity] having a legal or equitable interest therein, may apply to a judge of the superior court, prior to the time that the rights of the parties to the sale or resale becoming fixed pursuant to G.S. 45-21.29A to enjoin such sale. . . .
(emphasis added). N.C.G.S. § 45-21.29A (2003) provides for the fixing of rights of parties to a foreclosure sale as follows:
No confirmation of sales or resales of real property made pursuant to this Article shall be required. If an upset bid is not filed following a sale, resale, or prior upset bid within the period specified in this Article, the rights of the parties to the sale or resale become fixed.
(emphasis added).
Our Supreme Court has held that G.S. § 45-21.34 is a provision which "limit[s] injunctive relief in foreclosure proceedings." Swindell v. Overton, 310 N.C. 707, 714, 314 S.E.2d 512, 517 (1984). Indeed, the terms of G.S. § 45-21.34 seemingly contemplate that a party seeking to avoid a foreclosure sale will take such action as is necessary to prevent the sale from becoming final. This may be accomplished by, e.g., calendaring a timely hearing for a temporary restraining order or preliminary injunction with the trial court prior to the fixing of rights. Once the rights to a foreclosure sale are fixed, a court cannot issue a prohibitory injunction, as "a court cannot restrain the doing of an act which already has been consummated." Roberts, 344 N.C. at 401-02, 474 S.E.2d at 788 (citing Fulton v. City of Morganton, 260 N.C. 345, 347, 132 S.E.2d 687, 688 (1963)); see also Bechtel v. Weaver, 202 N.C. 855, 856, 164 S.E. 338 (1932) ( per curiam) ("As the [foreclosure] sale which the plaintiff seeks to enjoin has already taken place, there is nothing now to restrain, and the action was properly dismissed.").
The present appeal arises from an action to enjoin a foreclosure sale. However, the foreclosure sale sought to be enjoined has already taken place. Therefore, even if this Court were to issue a decision requiring the superior court to prohibit the foreclosure sale, such a decision could not have any practical effect. Stated differently, to grant plaintiff relief would be to render a decision that would make no difference. Accordingly, the present action is moot and must be dismissed.
Dismissed.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).