#### WACHOVIA MORTGAGE COMPANY v. AUTRY-BARKER-SPURRIER REAL ESTATE, INC.; KLUTTS REALTY AND CONSTRUCTION COMPANY, INC.; J. VAUGHN KLUTTS, JOY W. KLUTTS, RICHARD W. AUTRY, PATRICIA D. AUTRY, ROBERT N. SPURRIER, BLANDINA W. SPURRIER and JOHN J. BARKER

No. 53

(Filed 30 July 1979)

Appeal and Error § 46— equally divided Court — judgment affirmed — no precedent

Where one member of the Supreme Court did not participate in the consideration or decision of a case and the remaining six justices are equally divided, the decision of the Court of Appeals in the case is affirmed without precedential value.

Justice Brock did not participate in the consideration or decision of this case.

ON petititon for discretionary review of the decision of the Court of Appeals, 39 N.C. App. 1, 249 S.E. 2d 727 (1978), affirming judgment of Martin (Harry CJ, J., entered 12 August 1977 in Mecklenburg Superior Court.

Plaintiff instituted this action on 12 November 1975 to recover deficiencies of $303,925.92 and $147,198.20 remaining after foreclosure of deeds of trust securing a land acquisition and development loan and a construction loan made by plaintiff to certain of defendants including defendant Klutts Realty and Construction Company, Inc. (defendant Klutts Realty). The two loans were made in connection with a townhouse development project in Mecklenburg County known as Treva Woods.

The initial land acquisition and development loan, in amount of $500,000, was secured by a note and deed of trust dated 14 March 1973 executed by defendant Klutts Realty and others. The construction loan, in amount of $576,200, was secured by a note *697and deed of trust dated 18 October 1973 executed by certain of defendants including defendant Klutts Realty.

In their answer and amended answers defendants denied liability for the alleged deficiencies and pleaded numerous further defenses. In its third defense defendant Klutts Realty pleaded a counterclaim for $750,000.00.

Plaintiff moved for summary judgment with respect to certain of the further defenses and with respect to the counterclaim. Following a hearing at which it considered the pleadings, depositions, exhibits, answers to interrogatories and affidavits, the trial court granted partial summary judgment as requested by plaintiff.

Defendants appealed to the Court of Appeals. That court affirmed the judgment of the trial court and ordered the cause remanded for further proceedings. Defendant Klutts Realty petitioned this court for discretionary review of that part of the Court of Appeals decision upholding summary judgment as to its third defense and counterclaim. We allowed the petition.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Sydnor Thompson, William L. Rikard, Jr., and Heloise C. Merrill, for plaintiff-appellee.

Mraz and Meacham, by John A. Mraz, for defendant-appellants.

PER CURIAM.

Due to absence on account of illness, Justice Brock did not participate in the decision of this case. The remaining six justices are equally divided as to whether the trial court erred in granting plaintiffs motion for summary judgment with respect to the third defense and counterclaim pleaded by defendant Klutts Realty. Therefore, the decision of the Court of Appeals is affirmed without precedential value in accordance with the usual practice in this situation. See, e.g., Townsend v. Railway Company, 296 N.C. 246, 249 S.E. 2d 801 (1978), and cases cited therein.

Affirmed.

Justice BROCK did not participate in the consideration or decision of this case.