An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-204

                                Filed: 15 September 2015

Transylvania County, No. 13 CVS 314

DEANNA RAMEY MULL et vir GUY ANDREW MULL, JR., Plaintiffs,

              v.

LLOYD V. EUBANKS, Individually, JENNIFER HERZOG, as Trustee for
CITIFINANCIAL SERVICES, INC. by and through its Registered Agent for Service
of Process, CT Corporation System Services, Inc., Defendants.


       Appeal by plaintiffs from judgment entered 24 September 2014 by Judge Mark

E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 25

August 2015.


       Donald H. Barton, P.C., by Donald H. Barton, for plaintiff-appellants.

       Nelson Mullins Riley & Scarborough, LLP, by Donald R. Pocock, for defendant-
       appellee, CFNA Receivables (DE), Inc. a/k/a CitiFinancial.


       TYSON, Judge.


       Plaintiffs, Deanna Ramey Mull and Guy Andrew Mull, Jr. (“the Mulls”), appeal

from the trial court’s grant of summary judgment in favor of Defendant, CitiFinancial

Services, Inc. (“CitiFinancial”). We dismiss the appeal as moot.


                                   I. Background
                                    MULL V. EUBANKS

                                    Opinion of the Court



       On 3 November 1997, Virgil and Myrtle Ramey (“the Rameys”) conveyed a one-

acre parcel of land, together with an access easement, to their daughter, Sandra, and

her husband, Lloyd Eubanks (“the Eubankses”). The property was conveyed subject

to a “right of first refusal” set forth in the deed as follows:

              SUBJECT TO the right of first refusal of Grantor, and
              Grantor’s heirs and assigns, (consideration for said right
              being included in, and being part of the consideration of
              said conveyance to Grantee), to purchase said 1.00 acre
              tract for ONE HUNDRED AND TWENTY-FIVE ($125.00)
              DOLLARS, should Grantee wish to convey said property to
              a non-heir of Grantor.

       On 20 March 2007, the Eubankses borrowed $92,941.79 from CitiFinancial.

They pledged the property, along with the existing mobile home on the property, as

collateral security for a promissory note and deed of trust executed to the trustee and

CitiFinancial as beneficiary.       The Eubankses applied the proceeds from the

CitiFinancial loan to pay off a prior unrelated mortgage and to acquire a replacement

mobile home for them to live on the property.

       Sandra Eubanks died in 2008, after the execution of the promissory note and

deed of trust. The tract became the sole property of her husband, Lloyd Eubanks

(“Eubanks”). Eubanks moved from the premises in January, 2013. He has failed to

make any payment on the CitiFinancial loan since that time.

       The original grantors of the property, the Rameys, are deceased. Plaintiff

Deanna Ramey Mull is another daughter of the Rameys.               In anticipation of



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                                  Opinion of the Court



foreclosure on the property, Mull and her husband attempted to purchase the

property for $125.00 pursuant to the terms of the right of first refusal contained in

the deed executed by the Rameys to the Eubankses.

      On 29 July 2013, the Mulls filed a complaint for breach of contract against

Eubanks and Citifinancial, through CitiFinacial’s trustee, Jennifer Herzog. The

Mulls alleged title of the property was in danger of being vested in a non-heir of the

Rameys, and they had acquired the right of first refusal as heirs of the Rameys. The

complaint further alleged Defendants had not executed a sales agreement or agreed

to sell them the property for $125.00.

      CitiFinancial filed a motion for summary judgment on 15 August 2014. On 2

September 2014, the superior court heard the motion and granted summary

judgment in favor of CitiFinancial. The attorney for CitiFinancial explained at the

summary judgment hearing that the property was not currently in active foreclosure,

but there were no hindrances to foreclosure such as an injunction or temporary

restraining order. He stated foreclosure “just hasn’t happened yet.”

      The Mulls appeal from the order granting summary judgment. Defendant

Eubanks did not participate in the motion for summary judgment. This appeal

pertains only to CitiFinancial.

      Subsequent to the entry of the order appealed from and the Mulls’ entry of

notice of appeal, Eubanks and the Mulls entered into a settlement agreement (“the



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                                    Opinion of the Court



agreement”). Pursuant to the agreement, Eubanks conveyed his interest in the

property to the Mulls by quitclaim deed dated 26 November 2014, subject to

CitiFinancial’s deed of trust. The agreement further states the parties “shall enter

into a stipulation for dismissal of the . . . civil action with the [trial] Court retaining

jurisdiction for purposes of enforcing the terms of this Settlement Agreement.”

                                        II. Issues

      The Mulls argue the trial court erred in granting summary judgment in favor

of CitiFinancial where genuine issues of material fact exist, asserting:                (1)

Citifinancial committed breach of contract by violating the covenant in the deed that

prohibits conveyance of the property to a non-heir of the Rameys; (2) the Mulls

suffered damages from CitiFinancial’s breach of contract; (3) the Mulls were entitled

to specific performance of the provision in the deed requiring the property to be

conveyed to them upon their payment of $125.00; (4) the deed should be set aside for

failure of consideration; and, (5) the doctrine of estoppel applies where CitiFinancial

was aware of the right of first refusal.

                                     III. Mootness

      The Mulls argue the right of first refusal is a binding contract between the

Mulls and Defendants, Defendants materially breached the covenant by failing to

execute a deed to the Mulls upon payment of $125.00, and the Mulls are entitled to




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                                   Opinion of the Court



specific performance of the terms and conditions of the right of first refusal contained

in the deed.

      The Mulls also allege they have suffered damages of not less than $10,000.00

as a direct and proximate result of Defendants’ failure to perform under the terms of

the right of first refusal. The Mulls sought an injunction for specific performance of

the right of first refusal, and an award of actual damages, interest and costs,

including reasonable attorney’s fees.

      CitiFinancial argues the claims alleged in the Mulls’ complaint are now moot

because Eubanks has conveyed the property by quitclaim deed to the Mulls since the

entry of summary judgment. We agree.

       The trial court entered summary judgment in favor of CitiFinancial on 24

September 2014. Eubanks, the sole owner of the property, deeded the property to the

Mulls by quitclaim deed on 26 November 2014. The Mulls have received Eubanks’s

interest in the property and no contract exists to enforce through specific

performance.

      The Mulls have provided no forecast of evidence of any claim for damages or

attorney’s fees owed from CitiFinancial. When asked during depositions of any

amount of money the Mulls sought to recover in this action, they failed to identify

anything other than their attorney’s fees.

                                 IV. Attorney’s Fees



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                                   Opinion of the Court



      Absent an express statutory provision, a successful litigant cannot recover

attorney’s fees as costs. Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App.

1, 11-12, 545 S.E.2d 745, 752, aff’d, 354 N.C. 565, 556 S.E.2d 293 (2001). No express

statutory authority permits an award of attorney’s fees in this breach of contract case.

Id. at 12-13, 545 S.E.2d at 752.     The Mulls present no authority and make no

argument to the contrary.

                                    V. Conclusion

      Our Supreme Court has held:

             Whenever, during the course of litigation it develops that
             the relief sought has been granted or that the questions
             originally in controversy between the parties are no longer
             at issue, the case should be dismissed, for courts will not
             entertain or proceed with a cause merely to determine
             abstract propositions of law.

In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S.

929, 61 L. Ed. 2d 297 (1999). The breach of contract claim raised by the Mulls in their

complaint became moot when Eubanks deeded his interest in the property to them.

Presuming this Court was to hold the right of first refusal is enforceable by the Mulls,

they have obtained all relief that they would be entitled to under the terms of the

deed and precedents. No attorney’s fees are recoverable from this action. The appeal

is dismissed as moot.

      DISMISSED.

      Judges BRYANT and GEER concur.


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                         Opinion of the Court



Report per Rule 30(e).




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