In re Foreclosure of Cornblum ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1247
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-77
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 362, AT PAGE
776 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 775 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-78
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 332, AT PAGE
904 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
-2-
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 783 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-79
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 329, AT PAGE
851 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 785 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-80
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 339, AT PAGE
117 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
-3-
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 791 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-81
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 328, AT PAGE
133 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 777 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 09-SP-82
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 326, AT PAGE
962 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
-4-
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 789 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 10-SP-01
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 336, AT PAGE
646 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 779 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 10-SP-02
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 346, AT PAGE
565 OF THE SWAIN COUNTY PUBLIC
-5-
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 773 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Swain County
FORECLOSURE OF THE DEED OF No. 10-SP-06
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,
AS RECORDED IN BOOK 346, AT PAGE
582 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 797 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Jackson County
FORECLOSURE OF THE DEED OF 09-SP-451
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,
-6-
AS RECORDED IN BOOK 1656, AT PAGE
50 OF THE JACKSON COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 270 OF THE JACKSON COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Jackson County
FORECLOSURE OF THE DEED OF 09-SP-453
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,
AS RECORDED IN BOOK 1603, AT PAGE
11 OF THE JACKSON COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 272 OF THE JACKSON COUNTY
PUBLIC REGISTRY.
__________
IN THE MATTER OF THE Jackson County
FORECLOSURE OF THE DEED OF 09-SP-454
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,
-7-
AS RECORDED IN BOOK 1667, AT PAGE
47 OF THE JACKSON COUNTY PUBLIC
REGISTRY.
v.
WILLIAM RICHARD BOYD, JR.,
Substitute Trustee
SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 268 OF THE JACKSON COUNTY
PUBLIC REGISTRY.
Appeal by Marshall E. Cornblum, Madeline H. Cornblum,
Michael Cornblum, Carolyn Cornblum, and Longbranch Properties,
LLC, from order entered 6 May 2013 by Judge James U. Downs in
Swain County Superior Court.
SHANAHAN LAW GROUP, PLLC, by Kieran J. Shanahan, Brandon S.
Neuman, and John E. Branch III, for appellants.
VAN WINKLE, BUCK, WALL, STARNES & DAVIS, P.A., by Lynn D.
Moffa and Esther Manheimer, for appellees.
ELMORE, Judge.
After careful review, we hold that the trial court erred in
denying the appellants-mortgagors’ motion for order denying the
appellee-mortgagee’s motion to confirm the arbitration award.
-8-
The trial court lacked subject matter jurisdiction to enter said
order. Accordingly, we vacate the trial court’s order.
I. Background
This case is now before this Court for the second time on
appeal. See In re Cornblum, ___ N.C. App. ___, 727 S.E.2d 338(2012), review denied, 366 N.C. 404, 734 S.E.2d 864 (2012), and
cert. denied, writ denied, 366 N.C. 404, 734 S.E.2d 865 (2012)
and review dismissed, 366 N.C. 404, 734 S.E.2d 866 (2012). In
In re Cornblum (Cornblum I), the mortgagors, Marshall E.
Cornblum, Madeline H. Cornblum, Michael Cornblum, Carolyn
Cornblum, and Longbranch Properties, LLC, (appellants) executed
thirteen promissory notes secured by deeds of trust on various
pieces of real property purchased and developed with the loans.
When the mortgagors defaulted on their obligations, United
Community Bank (UCB), the mortgagee, commenced twelve separate
foreclosure actions in Swain and Jackson County Superior Courts
under N.C. Gen. Stat. § 45–21.16 (2011). Id. at ___, 727 S.E.2d
at 339. Appellants demanded arbitration of all claims pursuant
to the arbitration agreement contained in each deed of trust.
Id. When UCB refused to arbitrate, appellants filed motions to
compel arbitration. Id. Judge James U. Downs granted
-9-
appellants’ motions to compel arbitration. While the
arbitration proceedings were pending, UCB assigned the
promissory notes, guaranties, and deeds of trust to Asset
Holding Company 5, LLC (“AHC” and collectively, “appellees”).
AHC was joined in the arbitration proceedings as a party-
claimant, but UCB remained a party for the purposes of
appellants’ counterclaims. Id. at ___, 727 S.E.2d at 340. On
20 September 2010, the arbitrator ruled in favor of appellees on
all claims and issued an arbitration award accordingly. Id. On
8 October 2010, appellees filed a motion to confirm the
arbitration award in Swain County Superior Court. The superior
court granted appellees’ motion to confirm the arbitration award
and denied appellants’ motion to vacate the award. Id.Appellants appealed to this Court on the basis that the
superior court lacked subject matter jurisdiction to confirm the
arbitration award. This Court agreed with appellants, holding
that “submitting this case to arbitration and confirming the
arbitration award fell outside of the superior court’s subject
matter jurisdiction.” Id. at ___, 727 S.E.2d at 342. On 7 May
2012, the Court of Appeals filed its judgment reversing the
superior court’s order confirming the arbitration award on the
-10-
basis that the superior court lacked subject matter
jurisdiction.
In March 2013, nearly one year after this Court rendered
its decision in Cornblum I, appellants, claiming that appellees’
motion to confirm the arbitration award was still pending
despite this Court’s decision in Cornblum I, filed a motion for
order denying the appellees’ motion to confirm the arbitration
award. Judge Downs heard appellants’ motion and subsequently
entered an order denying it. Appellants submitted a notice of
appeal to this Court on 3 June 2013. Again, we vacate the trial
court’s order.
II. Analysis
Appellants (now “the Cornblums”) argue that the trial court
erred in denying their motion for an order denying appellees’
motion to confirm the arbitration award. Given the decision in
Cornblum I, the Cornblums aver that the trial court was required
to grant their motion, and, by failing to do so, the trial court
acted inconsistently or at a variance with this Court’s mandate
in Cornblum I. We disagree.
Whether an action taken by a superior court complies with a
mandate is a question of law reviewed de novo. McKinney v.
McKinney, ____ N.C. App. ____, ____, 745 S.E.2d 356, 358 (2013).
-11-
“‘Under a de novo review, the court considers the matter anew
and freely substitutes its own judgment’ for that of the lower
tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship,
356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“Jurisdiction [is] . . . the power to hear and to determine
a legal controversy; to inquire into the facts, apply the law,
and to render and enforce a judgment[.]” State v. Daniels, ____
N.C. App. ____, ____, 741 S.E.2d 354, 358 (2012), appeal
dismissed, disc. review denied, 366 N.C. 565, 738 S.E.2d 389(2013) (quoting High v. Pearce, 220 N.C. 266, 17 S.E.2d 108, 112
(1941)). “Properly speaking, there can be no jurisdiction of
the person where there is none of the subject matter, although
the converse might indeed, and often does, occur.” Id. at ___,
741 S.E.2d at 359. “Where there is no jurisdiction of the
subject matter the whole proceeding is void ab initio and may be
treated as a nullity anywhere, at any time, and for any
purpose.” Id.
On appeal, the Cornblums acknowledge that in Cornblum I,
this Court dismissed appellants’ action after holding that the
trial court lacked subject matter jurisdiction to confirm the
arbitration award. Nonetheless, the Cornblums now pray this
-12-
Court to reverse the trial court’s order and remand with
instructions to grant their motion for order denying appellees’
motion to confirm the arbitration award. In making such
request, the Cornblums completely disregard the basis for this
Court’s reversal in Cornblum I—the lack of subject matter
jurisdiction. To the extent that the trial court acted
inconsistently or at variance with this Court’s mandate, it did
so by ruling on the Cornblums’ motion, not, as the Cornblums
contend, by denying it. See D&W, Inc. v. City of Charlotte,
268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966) (holding that a
mandate from an appellate court is binding upon the trial court
and “must be strictly followed without variation or
departure[,]” [and] “[n]o judgment other than that directed or
permitted by the appellate court may be entered”). The trial
court was bound by this Court’s decision in Cornblum I, and,
absent subject matter jurisdiction, it lacked authority to
either grant or deny the Cornblums’ motion. On appeal, this
Court must vacate the trial court’s order. See State v. Felmet,
302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981) (concluding that
where the trial court issues an order without the requisite
subject matter jurisdiction, “the appropriate action on the part
of the appellate court is to arrest judgment or vacate any order
-13-
entered without authority”); see also In re Foreclosure of
Young, ____ N.C. App. ____, ____, 744 S.E.2d 476, 479 (2013)
(vacating an order where the trial court exceeded jurisdictional
scope in foreclosure hearing by making findings and conclusions
regarding an equitable estoppel defense).
III. Conclusion
The trial court, acting in direct contravention with
this Court’s holding in Cornblum I, erred in ruling on the
Cornblums’ motion for order denying appellees’ motion to confirm
the arbitration award. The trial court lacked subject matter
jurisdiction to hear the matter. As such, we vacate the trial
court’s 6 May 2013 order.
Vacated.
Judges McGEE and HUNTER, Robert C. concur.
Report per Rule 30(e).