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  "id": 8523075,
  "name": "K & K DEVELOPMENT CORPORATION, Plaintiff v. COLUMBIA BANKING FEDERAL SAVINGS AND LOAN ASSOCIATION, AMC BUILDERS, INC., CAROLINA BUILDERS CORPORATION, LARRY E. ROBBINS, HAROLD E. RUSSELL, JR., and MICHAEL L. SWARINGEN, Defendants",
  "name_abbreviation": "K & K Development Corp. v. Columbia Banking Federal Savings & Loan Ass'n",
  "decision_date": "1989-12-05",
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    "judges": [
      "Judges JOHNSON and ORR concur."
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    "parties": [
      "K & K DEVELOPMENT CORPORATION, Plaintiff v. COLUMBIA BANKING FEDERAL SAVINGS AND LOAN ASSOCIATION, AMC BUILDERS, INC., CAROLINA BUILDERS CORPORATION, LARRY E. ROBBINS, HAROLD E. RUSSELL, JR., and MICHAEL L. SWARINGEN, Defendants"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nAs a preliminary matter we note that this is an appeal from an interlocutory order because the trial court\u2019s order did not dispose of the cause of action as to all of the parties. See N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a) and (b) of the N.C. Rules of Civil Procedure. Both N.C. Gen. Stat. \u00a7 l-277(a) (1983) and N.C. Gen. Stat. \u00a7 7A-27(d) (1986) provide for the appeal of any order \u2014 final or interlocutory\u2014 which affects a substantial right of a party. Whitehurst v. Corey, 88 N.C. App. 746, 364 S.E.2d 728 (1988). In this case the trial court\u2019s entry of summary judgment against plaintiff included an award of attorney\u2019s fees and therefore affected a substantial right. Consequently, we treat the order as immediately appealable pursuant to G.S. \u00a7 l-277(a) and G.S. \u00a7 7A-27(d) and proceed to address the merits of the case.\nPlaintiff first contends that summary judgment was improvidently granted. Summary judgment is appropriate when there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987). Plaintiff contends that summary judgment was inappropriate because a genuine issue of material fact remains as to whether plaintiff was entitled to a judgment or lien against Lot 56 which has priority over the mortgage held by Columbia. Plaintiff argues that because the work giving rise to its asserted lien was performed in order to enforce Section XII of the protective covenants, it is entitled to a judgment or lien which has priority over defendant Columbia\u2019s deed of trust lien. Plaintiff is unable to cite specific authority for its position and instead relies on the general law of conveyancing in this State, especially the well-established tenet that a grantee or purchaser who accepts a deed containing valid covenants is bound for the performance of such covenants. Beech Mountain Property Owners v. Seifart, 48 N.C. App. 286, 269 S.E.2d 178 (1980), citing Cummings v. Dosam, Inc., 273 N.C. 28, 159 S.E.2d 513 (1968). While we agree that Columbia (and any subsequent purchaser of Lot 56) would be bound by the restrictive covenants on the property, see J. Webster, Real Estate Law in North Carolina, \u00a7\u00a7 386-87 (3d ed. 1988), we nevertheless cannot agree that this rule of conveyancing governs the resolution of this case.\nAt the time plaintiff\u2019s lien arose, the only connection between Columbia and Lot 56 was the deed of trust recorded 27 May 1986. When a deed of trust or a mortgage of real property is duly recorded it gives the mortgagee priority over competing claims that may later arise. See N.C. Gen. Stat. \u00a7 47-20 (1984). An exception to this general rule occurs when a subsequently recorded mechanics\u2019, laborers\u2019 or materialmen\u2019s lien relates back to a date prior to the recordation of the deed of trust or mortgage. Pursuant to N.C. Uen. Stat. \u00a7 44A-10 (1984), a properly recorded lien relates back to the first furnishing of labor or material at the site of the improvement. It is undisputed that plaintiff first furnished labor or materials at Lot 56 on 8 June 1987. This was over a year after defendant Columbia\u2019s deed of trust was recorded. Plaintiff does not have priority over defendant Columbia in this case and these defendants were entitled to judgment as a matter of law. The trial court\u2019s grant of summary judgment was therefore proper.\nPlaintiff\u2019s next four assignments of error challenge the award of attorney\u2019s fees to defendants pursuant to N.C. Gen. Stat. \u00a7 6-21.5 (1986). Plaintiff first argues that the complaint raised justiciable issues of law and fact.\nG.S. \u00a7 6-21.5 allows the trial court to \u201caward a reasonable attorney\u2019s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading.\u201d The complete absence of a justiciable issue is the only basis for the award of attorney\u2019s fees under this section. Bryant v. Short, 84 N.C. App. 285, 352 S.E.2d 245, disc. rev. denied, 319 N.C. 458, 356 S.E.2d 2 (1987). The statute further provides that a motion for summary judgment is not in itself sufficient to justify an award of attorney\u2019s fees, although it may be evidence in support of such an award. Whenever a party advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law, attorney\u2019s fees may not be required under this statute.\nIn Sprouse v. North River Ins. Co., 81 N.C. App. 311, 344 S.E.2d 555, disc. rev. denied, 318 N.C. 284, 348 S.E.2d 344 (1986) (citing Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)), the court explained that the presence or absence of justiciable issues in pleadings is a question of law. The sufficiency of plaintiff\u2019s pleadings to raise a justiciable issue is therefore reviewable by this Court. Id. at 325, 344 S.E.2d at 565.\nA justiciable issue has been defined as an issue that is \u201creal and present as opposed to imagined or fanciful.\u201d In re Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988) (citing Sprouse, supra). In order to find complete absence of a justiciable issue it must conclusively appear that such issues are absent even giving the pleadings the indulgent treatment they receive on motions for summary judgment or to dismiss. Id. at 682-3, 373 S.E.2d at 325. (Citation omitted.)\nOur review of plaintiff\u2019s claim as it applies to these defendants does not conclusively reveal the complete absence of a justiciable issue at this stage of the proceedings. Furthermore, plaintiff has made a good faith, albeit unsuccessful, attempt to extend North Carolina law as it applies to the enforcement of covenants and conditions. We therefore reverse the award of attorney\u2019s fees. We need not address plaintiff\u2019s remaining assignments of error as to this issue.\nFinally, defendants filed a motion in this Court for sanctions against plaintiff pursuant to Rule 34 of the North Carolina Rules of Appellate Procedure (amended 8 December 1988 and effective July 1989). Rule 34 authorizes an appellate court to impose sanctions against an attorney or party or both when the court determines that an appeal or any proceeding in an appeal was frivolous. For Rule 34 purposes an appeal is frivolous if:\n(a) . . .\n(1) the appeal was not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;\n(2) the appeal was taken or continued for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;\n(3) a petition, motion, brief, record, or other paper filed in the appeal was so grossly lacking in the requirements of propriety, grossly violated appellate court rules, or grossly disregarded the requirements of a fair presentation of the issues to the appellate court.\nDefendant argues that this appeal is frivolous for the reasons given in subsections (a)(1) and (2). Based on our review of the record we reject these arguments and deny the motion for sanctions pursuant to Rule 34.\nAffirmed as to the grant of summary judgment.\nReversed as to the order awarding attorney\u2019s fees.\nMotion for sanctions in this Court denied.\nJudges JOHNSON and ORR concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Brenton D. Adams and Grier J. Hurley for plaintiff-appellant.",
      "Wyrick, Robbins, Yates & Ponton, by Eric A. Vernon, for defendants-appellees Larry E. Robbins and Columbia Banking Federal Savings and Loan Association."
    ],
    "corrections": "",
    "head_matter": "K & K DEVELOPMENT CORPORATION, Plaintiff v. COLUMBIA BANKING FEDERAL SAVINGS AND LOAN ASSOCIATION, AMC BUILDERS, INC., CAROLINA BUILDERS CORPORATION, LARRY E. ROBBINS, HAROLD E. RUSSELL, JR., and MICHAEL L. SWARINGEN, Defendants\nNo. 8910SC283\n(Filed 5 December 1989)\n1. Appeal and Error \u00a7 6.2 (NCI3d)\u2014 interlocutory order \u2014attorney fees awarded \u2014 substantial right affected \u2014 order appealable\nThough the appeal was from an interlocutory order because it did not dispose of the cause of action as to all the parties, it nevertheless affected a substantial right and was appealable because the trial court\u2019s entry of summary judgment against plaintiff included an award of attorney\u2019s fees.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 47, 49.\n2. Laborers\u2019 and Materialmen\u2019s Liens \u00a7 9 (NCI3d)\u2014 work performed to enforce protective covenants \u2014no priority over earlier deed of trust\nThere was no merit to plaintiff\u2019s contention that, because the work giving rise to its asserted lien was performed in order to enforce protective covenants, it was entitled to a judgment or lien which had priority over defendant\u2019s deed of trust lien which was recorded over a year before plaintiff first furnished labor or materials.\nAm Jur 2d, Mechanics\u2019 Lien \u00a7 268.\n3. Attorneys at Law \u00a7 7.5 (NCI3d)\u2014 action not completely void of justiciable issue \u2014award of attorney\u2019s fees improper\nPlaintiffs claim to a lien having priority over defendant\u2019s lien was not an action completely void of a justiciable issue, and plaintiff made a good faith, albeit unsuccessful, attempt to extend N.C. law as it applies to the enforcement of covenants and conditions; therefore, the trial court erred in awarding defendants attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-21.5.\nAm Jur 2d, Costs \u00a7 72.\n4. Appeal and Error \u00a7 13 (NCI3d)\u2014 appeal not frivolous \u2014motion for sanctions denied\nPlaintiff\u2019s appeal from summary judgment denying its right to a lien having priority over defendant\u2019s lien was not frivolous, and defendants\u2019 motion for sanctions against plaintiff pursuant to Rule 34 of the N.C. Rules of Appellate Procedure was denied.\nAm Jur 2d, Appeal and Error \u00a7 1024.\nAPPEAL by plaintiff from Bailey, James H. Pou, Judge. Order entered 12 December 1988 in WAKE County Superior Court. Heard in the Court of Appeals 12 October 1989.\nPlaintiff appeals from an order granting summary judgment and attorney\u2019s fees in favor of defendants Larry E. Robbins, trustee, and Columbia Banking Federal Savings and Loan Association.\nPlaintiff is the developer of Carrington Woods subdivision in Knightdale, North Carolina. On 20 May 1986 plaintiff sold Lot 56 in this subdivision to defendants AMC Builders, Inc. and Michael L. Swaringen. Defendant AMC Builders, Inc. executed a deed of trust to defendant Robbins as trustee for defendant Columbia Banking Federal Savings and Loan Association (hereinafter Columbia). This deed of trust was recorded 27 May 1986 in Wake County. A second deed of trust was executed by defendant AMC Builders, Inc. to defendant Harold E. Russell, Jr. as trustee for defendant Carolina Builders Corporation. The second deed of trust was recorded 23 February 1988. Lot 56 is subject to protective covenants which in pertinent part provide:\nArticle XII\nAPPEARANCE. Each Owner shall keep his building site free of tall grass, undergrowth, dead trees, trash and rubbish and property maintained so as to present a pleasing appearance. In the event an owner does not properly maintain his building site as above provided, in the opinion of the Architectural committee, then Declarant may have the required work done and the costs thus incurred shall be paid by the Owner.\nThe Architectural Committee referred to in Article XII of the protective covenants determined that defendants Michael L. Swaringen and AMC Builders did not properly maintain Lot 56, which had become a building site. On 5 June 1987, pursuant to the Architectural Committee\u2019s decision, plaintiffs lawyer wrote to defendant Swaringen informing him that defendants Swaringen and AMC Builders were in violation of Article XII and that plaintiff had been contacted by the State Sedimentation Control Agency regarding possible fines and penalties. The letter further stated that if the problems were not corrected, plaintiff intended to exercise its rights under the protective covenants to remedy the problems and charge the costs to those defendants. Plaintiff began such work on 8 June 1987, and completed work on 14 March 1988. Plaintiff made demand upon defendants Swaringen and AMC Builders for payment of $4,746.67, the sum expended in bringing the lot into compliance with the terms of the protective covenants. Defendants Swaringen and AMC Builders have not made any payment to plaintiff.\nOn 14 March 1988 plaintiff filed a \u201cClaim of Lien\u201d in the Office of the Clerk of Superior Court of Wake County pursuant to Article 2 of Chapter 44A of the North Carolina General Statutes. On 13 June 1988 plaintiff instituted an action to enforce this lien, and to establish its priority over other liens and rights in the property.\nWhen default was made in the payment of the indebtedness owed defendant Columbia and secured by the first deed of trust, defendant Robbins, trustee, foreclosed on that deed of trust. The property was sold to defendant Columbia on 29 July 1988 and a trustee\u2019s deed was executed to defendant Columbia pursuant to applicable foreclosure laws on 11 August 1988.\nPlaintiff filed a notice of lis pendens pursuant to N.C. Gen. Stat. \u00a7 1-116 (1983) on 6 October 1988. On 14 October 1988 defendants Robbins, trustee, and Columbia moved for summary judgment on the issue of priority between their deed of trust and plaintiffs lien. On 17 November 1988 these defendants also filed a motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.5 (1986). From the trial court\u2019s grant of both motions, plaintiff appeals.\nBrenton D. Adams and Grier J. Hurley for plaintiff-appellant.\nWyrick, Robbins, Yates & Ponton, by Eric A. Vernon, for defendants-appellees Larry E. Robbins and Columbia Banking Federal Savings and Loan Association."
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