{ "id": 4220495, "name": "REO PROPERTIES CORPORATION, GRADY I. INGLE and ELIZABETH B. ELLS, solely in their capacities as Substitute Trustees under certain Deed of Trust Recorded in Book 1370 at Page 1522 of the Davidson County Register of Deeds, Plaintiffs v. RONDAL RALPH SMITH, wife, ROBIN M. SMITH a/k/a ROBIN R. SMITH; HIGH POINT REGIONAL HEALTH SYSTEM f/k/a HIGH POINT REGIONAL HOSPITAL DEFENDANTS; and ALAN C. BURTON and wife, JULIE BERRIER BURTON, INTERVENING DEFENDANTS, Defendants", "name_abbreviation": "Reo Properties Corp. v. Smith", "decision_date": "2013-05-21", "docket_number": "No. COA12-860", "first_page": "298", "last_page": "306", "citations": [ { "type": "official", "cite": "227 N.C. App. 298" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "619 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633983 ], "year": 2005, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0516-01" ] }, { "cite": "640 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637771 ], "year": 2007, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0822-01" ] }, { "cite": "173 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354013 ], "year": 2005, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0577-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 121-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "parenthetical": "c" }, { "parenthetical": "d" } ], "opinion_index": 0 }, { "cite": "19 S.E. 351", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "pin_cites": [ { "page": "353", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649543 ], "year": 1894, "pin_cites": [ { "page": "159", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/114/0151-01" ] }, { "cite": "33 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1945, "pin_cites": [ { "page": "133" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "225 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597127 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "6" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0001-01" ] }, { "cite": "282 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "782", "parenthetical": "citation omitted" }, { "page": "783" } ], "opinion_index": 0 }, { "cite": "304 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565468 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "164", "parenthetical": "citation omitted" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-118", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "542 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "702" }, { "page": "702" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441914 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "483" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0479-01" ] }, { "cite": "682 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 743", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170264 ], "year": 2009, "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0743-01" ] }, { "cite": "181 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376350 ], "year": 2007, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0753-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] } ], "analysis": { "cardinality": 797, "char_count": 21601, "ocr_confidence": 0.715, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1396695328569349 }, "sha256": "c526ca649bdf8f5a7e85e254771b5fc7d908fa8322808265d1a17d6a7829e2be", "simhash": "1:8f6f5470457e9552", "word_count": 3543 }, "last_updated": "2023-07-14T17:48:13.495142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and GEER concur." ], "parties": [ "REO PROPERTIES CORPORATION, GRADY I. INGLE and ELIZABETH B. ELLS, solely in their capacities as Substitute Trustees under certain Deed of Trust Recorded in Book 1370 at Page 1522 of the Davidson County Register of Deeds, Plaintiffs v. RONDAL RALPH SMITH, wife, ROBIN M. SMITH a/k/a ROBIN R. SMITH; HIGH POINT REGIONAL HEALTH SYSTEM f/k/a HIGH POINT REGIONAL HOSPITAL DEFENDANTS; and ALAN C. BURTON and wife, JULIE BERRIER BURTON, INTERVENING DEFENDANTS, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nServertis REO Pass-Through Trust I (\u201cSRT\u201d), REO Properties Corporation (\u201cREO\u201d), Grady I. Ingle and Elizabeth B. Ells, solely in their capacities as Substitute Trustees, (collectively \u201cplaintiffs\u201d) appeal from an order granting intervening defendants Alan C. Burton and Julie Benier Burton\u2019s (\u201cthe Burtons\u201d) motion for summary judgment and dismissing the action. We reverse and remand.\nI. Background\nOn 5 August 1986, Rondal Ralph Smith and Robin M. Smith (\u201cthe Smiths\u201d) acquired title to Lot #184 of Crestview Subdivision, 106 Crestview Terrace, in Davidson County, Thomasville, North Carolina (\u201cthe property\u201d) and recorded the Deed. The Smiths executed and delivered a promissory note in the principal amount of $96,000 (\u201cthe Note\u201d) to New Century Mortgage Corporation (\u201cNew Century\u201d) secured by a Deed of Trust on the property that was recorded on 16 December 2002. The Deed of Trust included the correct address of the property as 106 Crestview Terrace, Thomasville, North Carolina. However, the legal description attached as exhibit A to the Deed of Trust did not fully and completely describe the property.\nSubsequently, plaintiffs discovered the mistake in the legal description of the Deed of Trust and on 26 June 2008, plaintiffs filed a complaint in Davidson County Superior Court, seeking to reform the Deed of Trust on the property. The complaint alleged that REO currently held the Note secured by the Deed of Trust and since the description of the property in the Deed of Trust was inaccurate, it should be reformed to include the full and correct legal description and relate back to the date of the original recording. Plaintiffs also sought a resulting or constructive trust and other equitable remedies. On this same date, plaintiffs also filed a Notice of Lis Pendens (ulis pendens\u201d) in Davidson County. According to plaintiffs, the lis pendens was properly indexed in the Davidson County Clerk\u2019s office under file number \u201c08 M 343.\u201d On 4 September 2008, the Smiths filed a letter responding to plaintiffs\u2019 complaint.\nOn 13 April 2009, the Smiths filed a petition for bankruptcy. The petition included, inter alia, Schedules with a Notice to Creditors and a Proposed Plan regarding plaintiffs\u2019 secured claim in the amount of $92,077.90 on the property. The trial court ordered the case regarding the reformation of the Deed of Trust (\u201cthe reformation case\u201d) to remain inactive during the pendency of the Smiths\u2019 bankruptcy case. After a public auction was conducted, Judge Thomas W. Waldrep, Jr. (\u201cJudge Waldrep\u201d), United States Bankruptcy Judge for the Middle District of North Carolina determined that the bid of $10,000 would not benefit the estate. Judge Waldrep entered an Order on 9 November 2010 abandoning the Smiths\u2019 estate\u2019s interest in the property located at 106 Crestview Terrace. The property was returned to the Smiths. Plaintiffs filed a motion for an order to remove the reformation case from inactive status and re-open it. Since the bankruptcy case was converted from Chapter 13 to Chapter 7, Judge Waldrep\u2019s order abandoning the Smiths\u2019 interest in the property, in effect, lifted the automatic stay. The motion to re-open the reformation case was granted by the trial court on 23 December 2010. After the property was condemned by the City of Thomasville, the Smiths conveyed the property to the Burtons by General Warranty Deed (\u201cthe Burton Deed\u201d) and executed a lien waiver. The Burton Deed was recorded on 12 April 2011.\nWhen plaintiffs discovered that the Burtons owned the property, they informed the Burtons\u2019 attorneys about the lis pendens. Subsequently, on 16 May 2011, the Burtons filed a motion to intervene in the reformation case and the trial court granted the motion. On 24 May 2011, the Burtons filed an answer alleging, inter alia, that prior to purchasing the property a \u201cdue, proper, diligent and prudent title search\u201d was conducted which \u201cdid not reveal the existence of The Deed of Trust with a legal description of The Property.\u201d The Burtons also alleged that the Judgment Index in the office of the Clerk of Superior Court of Davidson County reflected that a lis pendens had been filed which was indexed as file number 08 M 343 concerning the Smiths and the Judgment Index with file number 08 M 343 was attached. According to the Burtons, the lis pendens \u201cindex entry was not cross indexed to disclose the pendency of the\u201d reformation case. The Burtons further alleged that plaintiffs\u2019 claim was not brought within the applicable statute of limitations, and should be dismissed.\nThe Burtons filed a motion for Judgment on the pleadings. After it was denied, the Burtons amended their answer and filed a motion for Summary Judgment, alleging, inter alia, their status as bonafide purchasers for value of the property without notice of any claim by plaintiffs and that the statute of limitations on plaintiffs\u2019 claim for reformation of the Deed of Trust expired before the filing of the action.\nOn 26 January 2012, plaintiffs filed a motion for summary judgment, claiming that the error in the Deed of Trust was a result of a mutual mistake of fact and thus should be reformed by the court. In addition, plaintiffs argued, under the doctrine of lis pendens, that the Deed of Trust in the reformation case should have been located by \u201ca reasonably prudent and careful examination of title\u201d and that the Burtons were not bona fide purchasers without notice of the Deed of Trust.\nOn 22 February 2012, the trial court granted the Burtons\u2019 motion for summary judgment, denied plaintiffs\u2019 motion for summary judgment and dismissed the action. On 21 March 2012, the trial court also denied the Burtons\u2019 motion for attorneys\u2019 fees. Plaintiffs appeal and the Burtons cross-appeal.\nII. Standard of Review\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted). Summary judgment shall be allowed \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2011). When the parties have filed cross-motions for summary judgment, the parties have conceded that there are no disputed issues of material fact. Kessler v. Shimp, 181 N.C. App. 753, 756, 640 S.E.2d 822, 824 (2007). If there are no disputed issues of material fact, we only need to determine whether summary judgment was entered properly or whether the trial court should have entered summary judgment in favor of the other party. Self-Help Ventures Fund v. Custom Finish, LLC, 199 N.C. App. 743, 745, 682 S.E.2d 746, 748 (2009).\nThe dispositive legal issue the court determined was the issue regarding the statute of limitations. The Brutons claimed that the statute of limitations had expired prior to plaintiffs\u2019 initiation of the reformation case. The trial court granted the Burtons\u2019 motion for summary judgment \u201cin particular with regard to the expiration of the statute of limitations applicable to [plaintiffs\u2019 claim for reformation....\u201d However, prior to addressing the Burtons\u2019 defenses it was necessary for the trial court to determine whether the Burtons were bonafide purchasers for value, as they claimed, or merely subsequent purchasers for value. In order to determine the Brutons\u2019 status, it was necessary to first determine whether the Burtons had constructive notice of the lis pendens. The trial court\u2019s order denying plaintiffs\u2019 summary judgment motion did not address the lis pendens issue, even though the affidavits plaintiffs presented at the summary judgment hearing addressed the filing and cross-indexing of the lis pendens and the Burtons\u2019 attorneys\u2019 title search found the lis pendens file number in the judgment index and attached it as an exhibit to their answer. Therefore, on appeal we must first determine whether the Burtons\u2019 had constructive notice of the lis pendens, and thus were merely subsequent purchasers for value.\nIII. Lis Pendens\nPlaintiffs argue that the trial court erred by permitting the intervening defendants to raise defenses to plaintiffs\u2019 claims because plaintiffs filed a Notice of Lis Pendens that was properly cross-indexed in the records of the Clerk of Court in Davidson County. We agree.\nA party \u201cdesiring the benefit of constructive notice of pending litigation must file a separate, independent notice\u201d referred to as a Notice of Lis Pendens that \u201cshall be cross-indexed... in... actions affecting title to real property.\u201d N.C. Gen. Stat. \u00a7 l-116(a)(2011). Actions that \u201cfall within the lis pendens statute include actions to ... correct a deed for mutual mistake....\u201d George v. Administrative Office of the Courts, 142 N.C. App. 479, 483, 542 S.E.2d 699, 702 (2001).\nThe propose of filing and cross-indexing a Notice of Lis Pendens is to give a subsequent purchaser of the affected property constructive notice of the pendency of an action. N.C. Gen. Stat. \u00a7 1-118 (2011). \u201c[E] very person whose conveyance or incumbrance is subsequently executed or subsequently registered is a subsequent purchaser ... and is bound by all proceedings taken after the cross-indexing of the notice to the same extent as if he were made a party to the action.\u201d Id.\nWhen a person buys property pending an action of which he has notice, actual or presumed, in which the title to it is in issue, from one of the parties to the action, he is bound by the judgment in the action, just as the party from whom he bought would have been.\nHill v. Memorial Park, 304 N.C. 159, 164, 282 S.E.2d 779, 782 (1981) (citation omitted). Lis pendens does not \u201cprotect intermeddlers.\u201d Whitehurst v. Abbott, 225 N.C. 1, 6, 33 S.E.2d 129, 133 (1945). If the subsequent purchaser was not bound by the judgment, \u201ca party could always defeat the judgment by conveying in anticipation of it to some stranger and the claimant would be compelled to commence a new action against him.\u201d Id. Where a party prosecutes a suit \u201cwith proper diligence the lis pendens continues until the final judgment, or until it has been canceled under the directions of the court. The mere loss or destruction of the notice will not affect its efficiency, if the statute has been fully complied with.\u201d Arrington v. Arrington, 114 N.C. 151, 159, 19 S.E. 351, 353 (1894) (citations omitted).\nIn the instant case, on 26 June 2008, plaintiffs filed a notice of lis pendens contemporaneously with the complaint seeking reformation of the Smiths\u2019 deed of trust. Since it is appropriate to file a lis pendens when seeking a reformation of a deed of trust, we find that plaintiffs\u2019 filing of the lis pendens was proper. George, 142 N.C. App. at 483, 542 S.E.2d at 702. In February 2011, the Burtons offered to purchase the property and retained an attorney to perform a title search of the property. During the title search, the Judgment Index in the office of the Clerk of Superior Court of Davidson County reflected, inter alia, a judgment lien and a lis pendens, file number 08 M 343, against the Smiths. Although the judgment lien was settled, the Burtons\u2019 attorney was unable to locate the lis pendens, file number 08 M 343, in the public records division of Davidson County. An inquiry was made to the Assistant or Deputy Clerk of Superior Court who informed the Burtons\u2019 attorneys that the file had been destroyed. The Assistant or Deputy Clerk indicated the file had been \u201csent to Raleigh.\u201d According to the Burtons\u2019 attorneys, the Assistant or Deputy Clerk informed the Burtons\u2019 attorneys that if the lis pendens was sent to Raleigh, it was \u201cprobably because the case was over.\u201d The Burtons\u2019 attorneys advised the Burtons accordingly.\nThe Smiths conveyed the property to the Burtons and the Burton Deed was recorded on 12 April 2011. When plaintiffs discovered the Burton Deed, they informed the Burtons\u2019 attorneys about the instant case. The Burtons intervened in the present action. As intervenors, the Brutons claimed they were innocent purchasers for value. According to Hill, a purchaser claiming protection under North Carolina registration laws as an innocent purchaser for value will depend on whether they had notice of the lis pendens. 304 N.C. at 165, 282 S.E.2d at 783.\nThe affidavits submitted by the Burtons\u2019 attorney indicated that \u201cno reasonably'prudent title searcher would have located a copy of the Lis Pendens in this matter\u201d because when they originally searched the title they were informed that the file had been \u201csent to Raleigh ... probably because the case was over.\u201d Furthermore, \u201c[n]o mention was made by anyone in the office of the Clerk of Superior Court of Davidson County at that time concerning the destruction of the Lis Penden[s] or the existence of any microfilm....\u201d However, once plaintiffs\u2019 attorneys informed the Burtons\u2019 attorneys about the existence of the lis pendens, the Burtons\u2019 attorney spoke with the Clerk of Superior Court of Davidson County and discovered that files are microfilmed prior to destruction and the microfilm is located in the office of the Clerk of Superior Court in Davidson County.\nTo support their position, the Burtons\u2019 attorney referenced a letter from Paul Rush Mitchell, PA (\u201cMitchell\u201d), an attorney who performed a title search on the property for the City of Thomasville, prior to the condemnation. In the letter he indicated that he \u201cfound no outstanding Deeds of Trust against the property....\u201d However, Mitchell also completed an affidavit for the summary judgment hearing, indicating that he was asked to perform a \u201climited title search from the current owner forward\u201d and that when he was checking the file he noticed the lis pendens, but neglected to follow up on it by checking the courthouse records. Mitchell further indicated that he was aware that files are microfilmed and kept by the Clerk of Superior Court of Davidson County, that in the past when he had been told files were \u201csent to Raleigh\u201d he was able to request them from the Clerk and typically received copies of the files within a half-day or a day. In his opinion, the record of the lis pendens remains a public record, despite its physical destruction and that a prudent title searcher would conduct further investigation.\nPlaintiffs submitted an affidavit from Brian L. Shipwash (\u201cShipwash\u201d), the Clerk of Superior Court of Davidson County. Shipwash confirmed that the lis pendens was properly docketed and cross-indexed, that the physical copy was destroyed, a microfilm copy was made, kept on record and that the record was \u201cavailable to any party requesting a copy of the same.\u201d Plaintiffs also submitted an affidavit from Irvin Sink (\u201cSink\u201d), an attorney who performed title searches in Davidson County. Sink performed a title search on the property and noticed the mistake in the legal description of the Deed of Trust. In addition, he saw that a lis pendens had been filed. When Sink requested a copy at the Clerk\u2019s office, he was told that the copy \u201chad been physically destroyed but that an electronic or microfilm image of the same was available for review and inspection.\u201d Furthermore, Sink indicated that he was aware of the procedure of destroying files in Davidson County and that the files were maintained either electronically or on microfilm by the Clerk\u2019s office and were also located in the State Archives in Raleigh.\nThe Burtons claim that the fact that the Davidson County Clerk of Superior Court destroyed the record means that the lis pendens was no longer a public record. Therefore, they claim they were bonafide purchasers for value because they had no notice of the lis pendens. In support of their argument, the Burtons cite N.C. Gen. Stat. \u00a7\u00a7 121-5 and 132-3 which state that a person may not destroy a public record \u201cwithout the consent of the Department of Cultural Resources])]\u201d N.C. Gen. Stat. \u00a7\u00a7 121-5(b); 132-3(a) (2011) (emphasis added). N.C. Gen. Stat. \u00a7 121-5(b) further indicates, however, that the records may be destroyed \u201c[w]hen the custodian of any official records of any county, city, municipality, or other subdivision of government certifies to the Department that such records have no further use or value for official business\u201d and the Department certifies this fact. Id. In addition, the statute specifically requires the Department of Cultural Resources to set up a program to help microfilm official county records with permanent value. N.C. Gen. Stat. \u00a7 121-5 (c) (2011). Furthermore, public records with permanent value are kept \u201cin the custody of the agency in which the records are normally kept or of the North Carolina State Archives\u201d and may be accessed by the public. N.C. Gen. Stat. \u00a7 121-5 (d) (2011).\nDespite the Burtons\u2019 contention, nothing in the statute indicates that destruction of the records, with approval, makes that record no longer a public record. The Brutons claim that \u201c[microfilms of destroyed records ... kept by the Clerk of Superior Court in a private cache, not generally available and open for inspection by the general public, are not public records. \u201d However, Shipwash stated that the lis pendens \u201cwas and is a public record of Davidson County, North Carolina and has at all times since its filing been available to any party requesting a copy of the same from my office.\u201d In addition, Sink indicated that, he knew about the microfilm and was able to access it. Furthermore, the Assistant or Deputy Clerk\u2019s statement to the Burtons\u2019 attorneys that the documents \u201chad been sent to Raleigh\u201d suggests that the files were maintained by the North Carolina State Archives. There is no support for the Burtons\u2019 contention that the microfilm was unavailable to the public or that the lis pendens was not a public record.\nThe Burtons were subsequent purchasers for value, not innocent purchasers for value, since they should have discovered the notice of lis pendens. Thus, they are \u201cintermeddlers,\u201d and a Notice of Lis Pendens is not \u201cdesigned to protect intermeddlers.\u201d Whitehurst, 225 N.C. at 6, 33 S.E.2d at 133. Therefore, the Burtons cannot assert their own defenses to plaintiffs\u2019 action, but rather shall be subject to the judgment in the reformation case. Since we have determined that the Burtons cannot assert defenses to plaintiffs\u2019 action, there is no need to address whether plaintiffs were the holders of the Note or whether plaintiffs filed the action outside of the statute of limitations. The trial court erred by dismissing the action, granting the Burtons\u2019 motion for summary judgment and denying plaintiffs\u2019 motion for summary judgment on the subject of lis pendens, the real issue in the case.\nOn cross-appeal, the Burtons appealed the trial court\u2019s order denying their motion for attorneys\u2019 fees and expenses pursuant to N.C. Gen. Stat. \u00a7 6-21.5. Their cross-appeal brief addresses attorneys\u2019 fees and costs pursuant to N.C. Gen. Stat. \u00a7 6-21.5 and \u00a7 6-19, however those statutes only allow an award of attorneys\u2019 fees to the prevailing party. N.C. Gen. Stat. \u00a7\u00a7 6-21.5; 6-19 (2011); see also Morgan v. Steiner, 173 N.C. App. 577, 580, 619 S.E.2d 516, 518 (2005). As we have determined that the trial court erred in granting the Burtons\u2019 motion for summary judgment, and thus they are no longer the prevailing party, there is no need to address the merits of their cross-appeal and it is dismissed.\nReversed and Remanded.\nJudges BRYANT and GEER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Roberson Haworth & Reese, PLLC by Alan B. Powell and Christopher C. Finan, for plaintiff-appellants.", "No briefs were filed for defendants Rondal Ralph Smith, Robin M. Smith a/k/a Robin R. Smith, or High Point Regional Health System.", "Wyatt Early Harris Wheeler LLP, by William E. Wheeler, for intervening defendant-appellees." ], "corrections": "", "head_matter": "REO PROPERTIES CORPORATION, GRADY I. INGLE and ELIZABETH B. ELLS, solely in their capacities as Substitute Trustees under certain Deed of Trust Recorded in Book 1370 at Page 1522 of the Davidson County Register of Deeds, Plaintiffs v. RONDAL RALPH SMITH, wife, ROBIN M. SMITH a/k/a ROBIN R. SMITH; HIGH POINT REGIONAL HEALTH SYSTEM f/k/a HIGH POINT REGIONAL HOSPITAL DEFENDANTS; and ALAN C. BURTON and wife, JULIE BERRIER BURTON, INTERVENING DEFENDANTS, Defendants\nNo. COA12-860\nFiled 21 May 2013\n1. Mortgages and Deeds of Trust \u2014 reformation of deed of trust \u2014 lis pendens properly cross-indexed\nThe trial court erred in a reformation of a deed of trust case by granting intervening defendants\u2019 motion for summary judgment and dismissing the action. Intervening defendants should not have been permitted to raise defenses to plaintiffs\u2019 claims because plaintiffs filed a notice of lis pendens that was properly cross-indexed in the records of the Clerk of Court in Davidson County.\n2. Attorney Fees \u2014 no longer prevailing party \u2014 cross-appeal dismissed\nSince it was determined that the trial court erred in a reformation of a deed of trust case by granting intervening defendants\u2019 motion for summary judgment, and thus they were no longer the prevailing party, there was no need to address the merits of their cross-appeal regarding attorney fees and expenses under N.C.G.S. \u00a7 6-21.5, and it was dismissed.\nAppeal by plaintiffs from order entered 22 February 2012 and cross-appeal by intervening defendants from order entered 21 March 2012 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 9 January 2013.\nRoberson Haworth & Reese, PLLC by Alan B. Powell and Christopher C. Finan, for plaintiff-appellants.\nNo briefs were filed for defendants Rondal Ralph Smith, Robin M. Smith a/k/a Robin R. Smith, or High Point Regional Health System.\nWyatt Early Harris Wheeler LLP, by William E. Wheeler, for intervening defendant-appellees." }, "file_name": "0298-01", "first_page_order": 308, "last_page_order": 316 }