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  "name": "THOMAS S. PARKER, Executor of the Estate of INA DESKINS HAWKINS, Deceased v. AMARYLLIS HAWKINS LIPPARD, PERCY G. DESKINS, JACK DESKINS and wife, PHYLLIS DESKINS, RUSSELL DESKINS (Widower), WILLIAM RIPPY, JAMES W. JOHNSTON, LOIS THOMAS, PHILLIP RAY THOMAS, NANCY POWELL, HAROLD A. DESKINS, and wife, MRS. HAROLD A. DESKINS, ROY RAY DESKINS and wife, MRS. ROY RAY DESKINS, J. HOWARD SILVER, HELEN HINTON, PAULINE GARRETT, CHARLES E. (EDDIE) DESKINS, (Divorced), FRANCES LORETTA DESKINS SHORR and husband, ROBERT SHORR, JEAN REEVES, and husband, ERNEST REEVES",
  "name_abbreviation": "Parker v. Lippard",
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    "judges": [
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    "parties": [
      "THOMAS S. PARKER, Executor of the Estate of INA DESKINS HAWKINS, Deceased v. AMARYLLIS HAWKINS LIPPARD, PERCY G. DESKINS, JACK DESKINS and wife, PHYLLIS DESKINS, RUSSELL DESKINS (Widower), WILLIAM RIPPY, JAMES W. JOHNSTON, LOIS THOMAS, PHILLIP RAY THOMAS, NANCY POWELL, HAROLD A. DESKINS, and wife, MRS. HAROLD A. DESKINS, ROY RAY DESKINS and wife, MRS. ROY RAY DESKINS, J. HOWARD SILVER, HELEN HINTON, PAULINE GARRETT, CHARLES E. (EDDIE) DESKINS, (Divorced), FRANCES LORETTA DESKINS SHORR and husband, ROBERT SHORR, JEAN REEVES, and husband, ERNEST REEVES"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe issues presented are: 1) whether legal fees incurred as a result of resales under Section l-339.30(e) or litigation incident thereto are recoverable: (A) as \u201call costs of resale\u201d under Section l-339.30(e) or (B) pursuant to certain other statutory or judicial authority; and 2) whether Judge McConnell\u2019s order entitled the Executor to prejudgment interest under N.C.G.S. Sec. 24-5 (1969).\nI\nSince the Legislature\u2019s 1879 repeal of certain statues authorizing the award of legal fees as costs, a trial court in this State may only award legal fees: 1) pursuant to express statutory or contractual authority; 2) pursuant to its exercise of equitable or supervisory powers in limited instances; or 3) to a litigant suing at his own expense to preserve or increase a common fund or common property. Bowman v. Comfort Chair Co., Inc., 271 N.C. 702, 704, 157 S.E. 2d 378, 379 (1968); Perkins v. American Mut. Fire Ins. Co., 4 N.C. App. 466, 468, 167 S.E. 2d 93, 95 (1969); see also Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 603-05, 344 S.E. 2d 847, 850, disc. rev. allowed, 318 N.C. 414, 349 S.E. 2d 592 (1986) (court may award legal fees as punitive sanction under N.C.G.S. Sec. 1A-1, Rule 41(b) (1983) based on inherent power to supervise its proceedings).\nA\nThe Clerk confirmed defendant\u2019s bid on 7 May 1984. Judge McConnell awarded the Executor, among other things, \u201call costs of resale or resales since May 7, 1984\u201d pursuant to Section l-339.30(e) which provides that:\nA defaulting bidder at any sale or resale is liable on his bid and in case a resale is had because of such default, he shall remain liable to the extent that the final sale price is less than his bid plus all costs of such resale or resales. [Emphasis added.]\nThe court\u2019s order then defined such \u201ccosts of resale\u201d to include all attorney\u2019s fees incurred by the Executor in both litigating defendant\u2019s default and conducting the resales ordered by the Clerk.\nWhile no party cites any authority specifically construing \u201ccosts of resale\u201d under Section l-339.30(e), the statute clearly states a well-established measure of recovery against a defaulting bidder after a judicial sale: the \u201ccourt will enforce [the defaulting bidder\u2019s] liability by ordering the property resold . . . and charging him with the deficiency between the amount obtained at the resale and the amount of his original bid, and with the expense of the sale. \u201d Gilliam v. Sanders, 198 N.C. 635, 638, 152 S.E. 888, 890 (1930) (emphasis added); see also Wood v. Fauth, 225 N.C. 398, 399, 35 S.E. 2d 178, 179 (1945) (resale proceedings after bidder\u2019s default compared to mortgage foreclosure).\nGiven the statute\u2019s apparent purpose to assess a defaulting bidder with resale \u201cexpenses\u201d under Gilliam, defendant\u2019s liability for \u201ccosts of resale\u201d under Section l-339.30(e) did not entitle the court to award the Executor attorney\u2019s fees incurred after defendant\u2019s default. Under the familiar rule stated in Bowman, the statute must \u201cexpressly\u201d authorize the court to award attorney\u2019s fees: \u201ccosts of resale\u201d certainly do not \u201cexpressly\u201d include attorney\u2019s fees. Cf. N.C.G.S. Sec. 6-21 (1986) (statute specifically defines \u201ccosts\u201d to include attorney\u2019s fees in various contexts). Accordingly, we find the court erroneously awarded such fees as \u201ccosts of resale\u201d under Section l-339.30(e).\nB\nWe likewise reject the contention there exists other relevant statutory or judicial authority for Judge McConnell\u2019s assessing defendant with the Executor\u2019s legal fees. Where the court allows legal fees pursuant to the \u201ccommon fund\u201d exception or for services rendered in aid of the court\u2019s jurisdiction over an insolvent, the fees are paid out of the fund recovered or by the insolvent or insolvent\u2019s estate \u2014not by an adversary party. See generally Horner v. Chamber of Commerce of City of Burlington, Inc., 236 N.C. 96, 72 S.E. 2d 21 (1952) (awarding plaintiff taxpayer attorney\u2019s fees out of public monies recovered and discussing numerous other examples); see also State ex rel. Ingram v. All American Assurance Co., 34 N.C. App. 517, 525, 239 S.E. 2d 474, 479 (1977) (trial court could order insurance company undergoing court-supervised statutory rehabilitation to pay attorney\u2019s fees incurred in aid of court\u2019s supervision).\nIn addition, the record reveals neither findings nor allegations there was \u201ca complete absence of a justifiable issue of either law or fact\u201d raised by defendant in litigating his liability. Cf. N.C.G.S. Sec. 6-21.5 (1986) (court must make findings of fact and conclusions of law to support attorney\u2019s fee award under that section). Furthermore, the record reveals nothing indicating these proceedings required \u201cthe construction of any will\u201d or arose out of partition proceedings such that legal fees might be awarded as costs under Section 6-21. Cf. Sec. 6-21(2) (legal fees allowable in proceeding requiring construction of will or trust); Sec. 6-21(7) (legal fees allowable if incurred in sale of property under partition statute). Thus, we conclude there was no express statutory or judicial authority for the court\u2019s order that defendant pay legal fees incurred by the Executor after defendant\u2019s default.\nII\nIn determining whther the Executor was entitled as a matter of law to prejudgment interest, we note the 4 May 1984 Clerk\u2019s order confirming the judicial sale constituted a legally binding acceptance of defendant\u2019s $125,000 bid and therefore created a specific \u201ccontract of purchase.\u201d See Gilliam, 198 N.C. at 638, 152 S.E. 2d at 890 (once bid accepted, bidder can be compelled to perform \u201ccontract of purchase\u201d). This contract of purchase is secured on behalf of the estate by the \u201cequitable lien held ... by the court as vendor of the property . . . .\u201d Id. Therefore, we reject at the outset defendant\u2019s contention that Judge McConnnell\u2019s order merely enforced a statutory lien for which prejudgment interest is not permitted. Cf. Dail Plumbing, Inc. v. Roger Baker & Assoc., 78 N.C. App. 664, 667, 338 S.E. 2d 135, 137, disc. rev. denied, 316 N.C. 731, 345 S.E. 2d 398 (1986) (where claimant-laborer was stranger to contract breached, prejudgment interest denied since only action was to enforce statutory lien under N.C.G.S. Sec. 44-7 et seq.). Unlike Dail, the instant case involves a breach of contract between the parties and the enforcement of an equitable lien under Gilliam rather than a statutory lien as in Dail.\nWhen Judge McConnell signed his order on 13 August 1985, N.C.G.S. Sec. 24-5 (1965) provided in relevant part:\nAll sums of money due by contract of any kind . . . shall bear interest, and when the jury shall render a verdict therefor they shall distinguish the principal from the sum allowed as interest ....\nCf. Dailey v. Integon General Ins. Corp., 75 N.C. App. 387, 403-04, 331 S.E. 2d 148, 159, disc. rev. denied, 314 N.C. 664, 336 S.E. 2d 399 (1985) (statute requires interest issue be decided by jury only in rare instance where evidence of both principal and interest submitted to it). Concerning when interest commences on a judgment for breach of contract, our Supreme Court stated in Rose v. Vulcan Materials Co., 282 N.C. 643, 671, 194 S.E. 2d 521, 540 (1973):\n\u2018The later cases following the enactment of G.S. 24-5 seem to have established this rule: when the amount of damages in a breach of contract action is ascertained from the contract itself, or from relevant evidence, or from both, interest should be allowed from the date of the breach.\u2019\n(quoting General Metals, Inc. v. Truitt Manuf. Co., 259 N.C. 709, 713, 131 S.E. 2d 360, 363 (1963)) (citations omitted).\nWe have already noted the contract of purchase created on 4 May 1984. The record also reveals the Executor tendered deed to the auctioned property and demanded payment on 30 May 1984. Defendant\u2019s refusal to comply with that demand constituted a breach of defendant\u2019s contract to purchase the estate property. Since the Executor\u2019s damages on that date were ascertainable based on defendant\u2019s confirmed bid of $125,000, defendant \u201ccould have \u2018tendered the correct amount and stopped [both] the running of interest\u2019 \u201d and the Executor\u2019s resale expenditures. Harris and Harris Constr. Co., Inc. v. Crain and Denbow, Inc., 256 N.C. 110, 127, 123 S.E. 2d 590, 602-03 (1962) (interest on ascertainable damages runs from date of demand) (quoting Miller v. Barnwell Bros., Inc., 137 F. 2d 257, 263 (4th Cir. 1943)). Thus, as the Executor\u2019s claim was ascertainable on 30 May 1984, the accrual of interest on that claim commenced on that date.\nUnder Section l-339.30(d), it is true the court or clerk could order resales whose proceeds might mitigate the Executor\u2019s $125,000 claim against defendant; however, such proceedings would not render the Executor\u2019s claim incapable of ascertainment since computation of any deficiency after resale is a \u201csimple matter of arithmetic and a purely ministerial duty.\u201d See Walton v. Cagle, 269 N.C. 177, 183, 152 S.E. 2d 312, 317 (1967) (characterizing determination of defaulting bidder\u2019s liability for deficiency and resale costs under Section 1-339.30); cf. Rose, 282 N.C. at 671, 194 S.E. 2d at 540 (damages ascertainable so long as subsequent matters are \u201cpure and simply a matter of mathematical calculation\u201d).\nThus, under Section 24-5, we must reverse Judge McConnell\u2019s order insofar as it denied the Executor prejudgment interest on the deficiency and resale expenses properly computed under Section l-339.30(e). See Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 431, 349 S.E. 2d 552, 558 (1986) (where damages ascertainable from contract itself, prevailing party entitled to prejudgment interest as matter of law). As the contract of purchase evidenced by the Clerk\u2019s confirmation order does not provide an interest rate, prejudgment interest accruing after 30 May 1984 shall be computed at the legal rate of eight percent under N.C.G.S. Sec. 24-1 (1986). See Interstate Equip. Co. v. Smith, 292 N.C. 592, 602, 234 S.E. 2d 599, 604 (1977).\nWe reject defendant\u2019s argument that no interest should accrue on the $6,250 bid deposit he paid to the Clerk for the original judicial sale. Defendant stipulated at his default hearing that he refused the Executor\u2019s tender and demand on 30 May 1984 and requested his deposit be refunded. Pursuant to his determination of defendant\u2019s default, Judge Hobgood therefore stated the Executor would hold the deposit \u201cpending further order of the Clerk . . . and subject to being applied to costs of resale or any damages . . .\u201d (emphasis added). On 18 September 1985, Judge McConnell finally determined the deposit was property of the estate and credited it to defendant\u2019s outstanding balance. Therefore, the Executor could not use defendant\u2019s deposit as a credit until the entry of Judge McConnell\u2019s order. \u201cInterest is the compensation allowed by law, or fixed by the parties, for the use, or forbearance, or detention of money.\u201d Ripple v. Mortgage and Acceptance Corp., 193 N.C. 422, 424, 137 S.E. 156 (1927). Accordingly, we conclude the Executor was entitled under Section 24-5 to prejudgment interest on, among other things, defendant\u2019s bid deposit as compensation for the court\u2019s \u201cdetention\u201d of the deposit pending further litigation and resales arising from defendant\u2019s default. Cf. Interest and Usury, 45 Am. Jur. 2d Sec. 59 (1969) (improper to award interest on judgment where prevailing party not deprived of use of money during period interest accrued).\nAs we hold the Executor entitled to prejudgment interest under Section 24-5, we need not address the Executor\u2019s additional contention the \u201ccosts of resale\u201d under Section l-339.30(e) include prejudgment interest.\nIll\nWe reverse the trial court\u2019s award of attorney\u2019s fees to the Executor. We also reverse the trial court\u2019s denial of prejudgment interest to the Executor and remand the case for determination of such interest at the legal rate in accordance with this opinion.\nReversed and remanded.\nJudges Phillips and Cozort concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Faison, Brown, Fletcher & Brough, by William D. Bernard and M. LeAnn Nease, for appellant and cross-appellee Irving Fineberg.",
      "Ridge & Associates, by Paul H. Ridge and Daniel Snipes Johnson, for appellee and cross-appellant Thomas S. Parker, Executor."
    ],
    "corrections": "",
    "head_matter": "THOMAS S. PARKER, Executor of the Estate of INA DESKINS HAWKINS, Deceased v. AMARYLLIS HAWKINS LIPPARD, PERCY G. DESKINS, JACK DESKINS and wife, PHYLLIS DESKINS, RUSSELL DESKINS (Widower), WILLIAM RIPPY, JAMES W. JOHNSTON, LOIS THOMAS, PHILLIP RAY THOMAS, NANCY POWELL, HAROLD A. DESKINS, and wife, MRS. HAROLD A. DESKINS, ROY RAY DESKINS and wife, MRS. ROY RAY DESKINS, J. HOWARD SILVER, HELEN HINTON, PAULINE GARRETT, CHARLES E. (EDDIE) DESKINS, (Divorced), FRANCES LORETTA DESKINS SHORR and husband, ROBERT SHORR, JEAN REEVES, and husband, ERNEST REEVES\nNo. 8615SC1255\n(Filed 1 September 1987)\n1. Attorneys at Law \u00a7 7.5; Executors and Administrators \u00a737\u2014 estate sale \u2014 defaulting bidder \u2014 attorney fees as costs\nThe trial court erroneously awarded attorney fees as costs of resale against a defaulting bidder at an estate sale because \u201ccosts of resale\u201d under N.C.G.S. \u00a7 l-339.30(e) does not expressly include attorney fees; legal fees allowed pursuant to the \u201ccommon fund\u201d exception or for services rendered in aid of the court\u2019s jurisdiction over an insolvent are not paid by the adversary party; there were neither findings nor allegations that there was a complete absence of a justifiable issue of law or fact raised by defendant; and the record reveals nothing indicating that these proceedings require the construction of any will or arose out of petition proceedings. N.C.G.S. \u00a7 6-21.\n2. Judgments \u00a7 55\u2014 estate sale \u2014defaulting bidder \u2014 costs of resale \u2014 prejudgment interest\nThe executor of an estate was entitled to prejudgment interest from a defaulting bidder where the clerk\u2019s order confirming the judicial sale constituted a legally binding acceptance of defendant\u2019s bid and therefore created a specific contract to purchase; defendant\u2019s refusal to comply with the executor\u2019s tender of deed and demand for payment constituted a breach of contract; and the executor\u2019s damages on that date were ascertainable. Furthermore, the executor was entitled to prejudgment interest on the bid deposit as his compensation for the court\u2019s detention of the deposit pending further litigation. N.C.G.S. \u00a7 24-5.\nAppeal by Irving Fineberg, a defaulting bidder, from Order entered by McConnell, Judge. Order entered 18 September 1985 in Superior Court, Alamance County. Heard in the Court of Appeals 9 April 1987.\nPetitioner Thomas S. Parker (hereinafter, the \u201cExecutor\u201d) conducted a judicial sale of an estate\u2019s real and personal property in April 1984 pursuant to N.C.G.S. Sec. 1-339.30 (1986). Irving Fineberg (hereinafter, the \u201cdefendant\u201d) bid $125,000 at the sale, which bid was confirmed by the Clerk of Court on 7 May 1984. Although the Executor tendered deed to the property and demanded payment, defendant failed to comply with his bid based on allegations the Executor misrepresented the property\u2019s compliance with local flood control ordinances and zoning regulations. On 13 August 1984, Judge Hobgood determined by consent of the parties the defendant\u2019s default and the extent of defendant\u2019s liability under Section 1-339.30(e). After Judge Hobgood remanded the case to the Clerk, the property was finally sold after seven resale proceedings and payment received on 28 June 1985.\nPursuant to Judge Hobgood\u2019s default order, the Clerk assessed defendant certain \u201ccosts of resale\u201d and included therein all legal fees incurred by the Executor after defendant\u2019s default; however, the Clerk denied the Executor\u2019s request for any prejudgment interest after defendant\u2019s default. After appeal of the Clerk\u2019s order to the Superior Court, Judge McConnell affirmed the Clerk\u2019s order in all relevant respects. Defendant appeals from that part of Judge McConnell\u2019s order assessing defendant with legal fees incurred by the Executor after defendant\u2019s default. The Executor appeals from that part of Judge McConnell\u2019s order denying the Executor recovery of prejudgment interest.\nFaison, Brown, Fletcher & Brough, by William D. Bernard and M. LeAnn Nease, for appellant and cross-appellee Irving Fineberg.\nRidge & Associates, by Paul H. Ridge and Daniel Snipes Johnson, for appellee and cross-appellant Thomas S. Parker, Executor."
  },
  "file_name": "0043-01",
  "first_page_order": 71,
  "last_page_order": 77
}
