An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA12-1308, 1305
                        NORTH CAROLINA COURT OF APPEALS
                              Filed:     1 April 2014
RUTHERFORD PLANTATION, LLC,
     Plaintiff

                                                    Rutherford County
      v.
                                                    No. 11 CVS 594

THE CHALLENGE GOLF GROUP OF THE
CAROLINAS, LLC f/k/a PREMIER BALSAM
BUILDERS, LLC, GRACE CREEK DEVELOPMENT,
LP, BALSAM MOUNTAIN GROUP, LLC, and THE
CHALLENGE GOLF GROUP OF SOUTH CAROLINA,
LLC,
     Defendants


      Appeal by defendants from orders entered 10 May 2012 by

Judge     Laura   J.   Bridges   in   Rutherford      County    Superior    Court.

Heard in the Court of Appeals 10 April 2013.1

      David A. Lloyd, for Plaintiff.

      McGuire, Wood & Bissette, P.A., by Douglas J. Tate, for
      Defendant Challenge Golf Group of South Carolina, LLC

      The Dungan Law Firm, P.A., by James W. Kilbourne, Jr., for
      Defendant Grace Creek Development, LP.

      ERVIN, Judge.



      1
      Although the two cases at issue here were filed and briefed
separately, we have decided to resolve them on the basis of a
single opinion in the interests of judicial economy, with this
action being appropriate since these cases arise from the same
basic set of facts and must be resolved based on the same
considerations.
                                            -2-
      Defendants The Challenge Golf Group of South Carolina, LLC,

and   Grace     Creek   Development,         LP,    appeal    from     orders     denying

their motions to dismiss for lack of personal jurisdiction.                            On

appeal,    Defendants         argue      that      the     trial     court    erred    by

determining      that        they    had    sufficient        contacts       with     this

jurisdiction      to    support      a   decision        requiring    them   to     defend

against the claims that had been asserted against them.                              After

careful    consideration        of    Defendants’         challenges    to   the     trial

court’s orders in light of the record and the applicable law, we

conclude that the trial court’s orders should be vacated and

that these cases should be remanded to the Rutherford County

Superior    Court      for    further      proceedings      not    inconsistent       with

this opinion.

                               I. Factual Background

                               A. Substantive Facts

      On   17    May    2010,       Plaintiff      Rutherford        Plantation,      LLC,

entered into an offer to purchase and contract with Defendant

The Challenge Golf Group of the Carolinas, LCC, formerly known

as Premier Balsam Builders, LLC, to purchase the real property

on which and the personalty with which the Cleghorn Golf and

Country Club was being operated.                   Pursuant to the contract in

question, Plaintiff agreed to sell, and Challenge Golf Group

agreed to purchase,            all of the real property and personalty
                                                -3-
associated with the Cleghorn facility for a total of $4,750,000,

with Plaintiff financing $4,000,000 of the purchase price and

with Challenge Golf Group paying the remainder at the time of

closing.           On    or    about    1    June     2010,   Plaintiff        conveyed         the

property associated with the Cleghorn facility to Challenge Golf

Group    and       received,      in    return,        a   payment    in     the    amount        of

$750,000 and a promissory note executed in favor of Plaintiff in

the amount of $4,000,000, which note was secured by a purchase

money       deed    of     trust.           Subsequently,          Challenge       Golf        Group

defaulted on its obligation under the note by failing to make

the required monthly installment payments for the period from

April 2011 through January 2012.

       On    1     June       2010,    the    same     day    as    the     one    upon        which

Plaintiff        conveyed       the    property        associated     with        the    Cleghorn

facility to Challenge Golf Group, Challenge Golf Group pledged

much    of       the     equipment      and     personalty         associated           with    the

Cleghorn facility to Grace Creek as collateral for a $650,000

loan    that       Grace      Creek    made    to     Challenge      Golf    Group.            After

Challenge Golf Group defaulted on its obligations to Plaintiff,

Grace Creek declared its loan to Challenge Golf Group to be in

default and filed an action against Challenge Golf Group in the

Buncombe         County       Superior        Court.         Ultimately,          Grace        Creek

obtained a default judgment against Challenge Golf Group in the
                                               -4-
full amount of the loan that it had provided to Challenge Golf

Group.

       At the time that the sale of the Cleghorn facility was

effectuated, Challenge Golf Group owned a condominium unit in

the Cleghorn facility.               On 25 May 2011, Challenge Golf Group

executed a deed of trust in favor of Challenge Golf Group of

South Carolina that was intended to secure a $120,000 loan that

Challenge Golf Group of South Carolina had made to Challenge

Golf Group.         As a result of the fact that Challenge Golf Group

defaulted on its obligations under the loan that it had received

from    Challenge         Golf   Group    of    South   Carolina,       Challenge    Golf

Group executed a general warranty deed conveying the condominium

unit to Challenge Golf Group of South Carolina on 14 December

2011.

                                 B. Procedural History

       On    18     May    2011,     Plaintiff        filed    a   complaint     against

Challenge Golf Group seeking to recover damages stemming from

Challenge Golf Group’s default under the promissory note.                           On 20

June     2011,      Plaintiff      filed       an    amended    complaint      adding   a

specific performance claim.                   On 25 August 2011, Challenge Golf

Group       filed    an     answer       in    which    it     denied    the    material

allegations of Plaintiff’s amended complaint, asserted fraud as

an affirmative defense, and sought to recover damages for fraud,
                                      -5-
breach of contract, and unfair and deceptive trade practices.

On 5 October 2011, Plaintiff filed a reply to Challenge Golf

Group’s     counterclaims    in   which     it   denied     the     material

allegations of Challenge Golf Group’s counterclaims and asserted

the affirmative defenses of waiver and estoppel.

    On 26 August 2011, Plaintiff filed a motion seeking the

entry of judgment in its favor on the pleadings.               Plaintiff’s

motion for judgment on the pleadings was denied on 13 October

2011.     On 17 October 2011, Plaintiff filed a motion seeking the

entry of summary judgment in its favor.           Judge Marvin P. Pope

entered an order on 4 November 2011 granting partial summary

judgment in Plaintiff’s favor on the basis of Plaintiff’s claim

for the recovery of damages stemming from Challenge Golf Group’s

default    under   the   promissory    note.     On   14   November    2011,

Challenge Golf Group filed a motion requesting the trial court

to amend the 4 November 2011 order on the grounds that N.C. Gen.

Stat. § 45-21.38 precluded an award of damages in instances,

such as this one, stemming from efforts to collect a deficiency

balance owed under a purchase money deed of trust.                Judge Pope

denied Challenge Golf Group’s amendment motion on 29 November

2011.     Challenge Golf Group noted an appeal to this Court from

the 4 November 2011 and 29 November 2011 orders.
                                              -6-
          On 14 November 2011 and 30 December 2011, respectively,

Plaintiff filed a motion and an amended motion seeking leave to

amend      its   first     amended       complaint     in   order     to    add      Balsam

Mountain Group, LLC; Challenge Golf Group of South Carolina; and

Grace Creek as additional defendants and to assert claims for

violation of the Uniform Fraudulent Transfers Act, unfair and

deceptive trade practices, civil conspiracy, and piercing the

corporate        veil.     On   5    January        2012,   Judge    Laura    J.    Bridges

entered       an     order      allowing        Plaintiff’s         amendment       motion,

resulting in the filing of Plaintiff’s second amended complaint

on    6    January    2012.         On   12    March    2012   and     14    March    2012,

respectively, Challenge Golf Group of South Carolina and Grace

Creek filed motions seeking to have the claims that Plaintiff

had       asserted   against        them      dismissed     for     lack     of    personal

jurisdiction.            After a hearing held on 8 May 2012, the trial

court entered orders denying Defendants’ dismissal motions on 10

May 2012.        Defendants noted appeals to this Court from the trial

court’s orders.

          On 15 January 2013, a panel of this Court filed an opinion

reversing        Judge    Pope’s     order     denying      Challenge       Golf    Group’s

motion to amend the partial summary judgment order and remanding

this case to the Rutherford County Superior Court for further

proceedings.         Rutherford Plantation, LLC v. Challenge Golf Grp.
                                            -7-
of the Carolinas, LLC, __ N.C. App. __, 737 S.E.2d 409 (2013).

Based   upon   a    dissenting         opinion     by     Judge    Donna     S.   Stroud,

Plaintiff    noted    an    appeal      from      our    decision     reversing      Judge

Pope’s order and remanding this case for further proceedings to

the Supreme Court on 19 February 2013.                     On 19 April 2013, this

Court entered orders staying further proceedings in these cases

pending    resolution       of     Plaintiff’s          appeal    from     this   Court’s

decision    with    respect      to    Challenge        Golf     Group’s    appeal    from

Judge Pope’s orders and requiring Plaintiff’s counsel to notify

us when the Supreme Court disposed of Plaintiff’s appeal.                            On 24

January 2014, the Supreme Court filed an opinion affirming our

decision with respect to Challenge Golf Group’s appeal on the

basis of an equally divided vote, thereby depriving our earlier

decision of precedential value.                   Rutherford Plantation, LLC v.

Challenge    Golf    Grp.     of      the   Carolinas,         LLC,   753    S.E.2d    152

(2014).     Although we have not received any notice of the Supreme

Court’s decision from Plaintiff’s counsel as required by our 19

April 2013 orders, we are independently aware of the Supreme

Court’s decision      and will now proceed to resolve the issues

raised by the appeals taken by Challenge Golf Group of South

Carolina and Grace Creek from the trial court’s orders.

                      II. Substantive Legal Analysis
                                      -8-
       “[T]he issue of a court’s jurisdiction over a matter may be

raised at any time, even for the first time on appeal or by a

court sua sponte.”      State v. Webber, 190 N.C. App. 649, 650, 660

S.E.2d 621, 622 (2008).        As a result, the fact that a party has

not    challenged     the   extent    to    which     the    trial   court    had

jurisdiction to enter the order that is the subject of a pending

appeal does not obviate the necessity for us to consider that

issue.      On the contrary, the issue of whether the trial court

had jurisdiction over the subject matter of an action may be

raised at any time during the proceedings, including on appeal,

In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006), and

on    the   court’s   own   motion.        Bache    Halsey   Stuart,   Inc.    v.

Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978),

disc. review denied, 296 N.C. 583, 254 S.E.2d 32 (1979).                     “When

the record shows a lack of jurisdiction in the lower court, the

appropriate action on the part of the appellate court is to

arrest judgment or vacate any order entered without authority.”

State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)

(citations omitted).        As a result, we must first address the

extent to which the trial court had jurisdiction to enter the

orders from which Challenge Golf Group of South Carolina and

Grace Creek have noted their appeals.
                                           -9-
       According to well-established North Carolina law, “once an

appeal     is     perfected,         the    lower      court        is     divested    of

jurisdiction.”           Faulkenbury       v.    Teachers’     &    State     Employees’

Retirement System, 108 N.C. App. 357, 364, 424 S.E.2d 420, 422,

disc.    review    denied     in   part,    334     N.C.     162,    432    S.E.2d    358,

aff’d, 335 N.C. 158, 436 S.E.2d 821 (1993); N.C. Gen. Stat. § 1-

294.     “An appeal removes a cause from the trial court which is

thereafter without power to proceed further until the cause is

returned by mandate of the appellate court.”                       Upton v. Upton, 14

N.C. App. 107, 109, 187 S.E.2d 387, 388 (1972).                            An appeal is

perfected       when   it    is    docketed       in   the     appellate       division.

Swilling v. Swilling, 329 N.C. 219, 225, 404 S.E.2d 837, 841

(1991); N.C. Gen. Stat. § 1-294.                 “However, for purposes of the

stay imposed by [N.C. Gen. Stat.] § 1-294, the proper perfection

of an appeal relates back to the time notice of appeal was

given.”     Reid v. Town of Madison, 145 N.C. App. 146, 149, 550

S.E.2d    826,     828      (2001)    (citations       omitted),           disc.   review

improvidently granted, 355 N.C. 276, 559 S.E.2d 786 (2002); see

also Romulus v. Romulus, 216 N.C. App. 28, 33, 715 S.E.2d 889,

892 (2011) (stating that “[a]n appeal is not ‘perfected’ until

it is docketed in the appellate court, but when it is docketed,

the perfection relates back to the time of notice of appeal, so

any proceedings in the trial court after the notice of appeal
                                        -10-
are void for lack of jurisdiction”).                      As a result, once an

appeal   has    been    perfected,      “[t]he       lower     court   only    retains

jurisdiction to take action which aids the appeal and to hear

motions and grant orders that do not concern the subject matter

of the suit and are not affected by the judgment that has been

appealed.”      Ross v. Ross (now Osborne), 194 N.C. App. 365, 368,

669 S.E.2d 828, 831 (2008), disc. review denied, 363 N.C. 656,

685 S.E.2d 106 (2009).

       As the record clearly reflects, Challenge Golf Group noted

an   appeal    from    Judge   Pope’s    orders      on   19    December      2011    and

subsequently perfected its appeal by filing a record on appeal

on 31 May 2012.        For that reason, the divestiture of trial court

jurisdiction worked by N.C. Gen. Stat. § 1-294 became effective

upon the date on which Challenge Golf Group noted its appeal

from   Judge     Pope’s     orders.      The     subsequent       orders      granting

Plaintiff’s amended motion for leave to amend its complaint and

denying the dismissal motions filed by Challenge Golf Group of

South Carolina and Grace Creek were both entered after Challenge

Golf Group noted its appeal from Judge Pope’s orders.                                As a

result, since a trial court lacks jurisdiction to do anything

except to “take action which aids the appeal and to hear motions

and grant orders that do not concern the subject matter of the

suit   and     are    not   affected    by     the    judgment     that    has       been
                                       -11-
appealed,” Ross, 194 N.C. App. at 368, 669 S.E.2d at 831, and

since the trial court orders of which Challenge Golf Group of

South Carolina and Grace Creek complain on appeal were entered

after   the   date   upon    which    the     trial   court   was    divested    of

jurisdiction over this case, we hold that the trial court lacked

jurisdiction to enter the challenged orders, Harris v. Fairley,

232 N.C. 555, 556-57, 61 S.E.2d 619, 620-21 (1950) (holding that

a trial court lacked jurisdiction to enter an order allowing a

plaintiff     to   amend   his   or   her   complaint    while      the   case   was

pending in the appellate courts), that those orders must be

vacated, and that this case should be remanded to the Rutherford

County Superior Court for further proceedings not inconsistent

with this opinion.

                                 III. Conclusion

    Thus, for the reasons set forth above, we conclude that the

trial court lacked jurisdiction to enter the orders from which

Challenge Golf Group of           South Carolina and Grace Creek have

appealed.     As a result, the trial court’s orders should be, and

hereby are, vacated and this case should be, and hereby is,

remanded to the Rutherford County Superior Court for further

proceedings not inconsistent with this opinion.

    VACATED AND REMANDED.

    Judges CALABRIA and DILLON concur.
                         -12-
Report per Rule 30(e).
