Dabbondanza v. HansleyÂ, 249 N.C. App. 18

Background

Plaintiffs (Dabbondanza) purchased real property that had been held by Linda Watkins (Wife), who was awarded Husband’s interest in a 2007 equitable distribution (ED) order. Husband refused to execute a deed.
In 2008 Judge Powell orally directed the clerk to execute a deed under Rule 70; the clerk executed and recorded a deed in 2009 (the "2009 Deed").
Defendant obtained a money judgment against Husband in 2013 (the "2013 Judgment") and levied on the property after Plaintiffs bought it in 2015.
Judge Powell in 2014 entered a nunc pro tunc written order attempting to memorialize her 2008 oral directive (the "2014 Order").
Trial court granted Plaintiffs’ motion for summary judgment quieting title; the Court of Appeals reversed, holding the oral Rule 70 appointment was ineffective, the 2009 Deed was invalid, and the 2007 ED order (unrecorded) did not defeat the 2013 Judgment lien.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an oral Rule 70 appointment executed in open court (2008 Oral Directive) authorized the clerk to convey title	The oral directive produced the 2009 Deed and conveyed Husband’s interest to Wife	The oral directive was not an entered order under Rule 58 and so conferred no authority on the clerk	Court: Oral directive was not "entered" (not reduced to writing, signed, filed) and thus was unenforceable; clerk lacked authority to convey
Whether a later nunc pro tunc order (2014 Order) can validate the 2009 Deed or defeat the 2013 Judgment lien	The 2014 Order retroactively validated the 2009 clerk deed, relating back to 2007 ED, so no title remained for the 2013 Judgment to attach	A nunc pro tunc entry cannot be used to create rights that prejudice intervening third parties where no prior signed entered order existed	Court: Judge lacked authority to enter nunc pro tunc to validate an order that was never signed/entered; even if she could, nunc pro tunc cannot be used to defeat intervening lien creditors
Whether the 2007 equitable distribution order, standing alone, cut off subsequent judgment liens absent recording	The 2007 ED order divested Husband’s title and thus had priority over the 2013 Judgment	The 2007 ED order, though divesting in equity, was not recorded as required for deed-like priority and therefore did not defeat the 2013 Judgment lien	Court: 2007 ED did not affect priority because it was not recorded as required; Husband still owned an interest when the 2013 Judgment was docketed
Whether summary judgment for Plaintiffs quieting title was proper	Plaintiffs: Title was free of the 2013 Judgment because wife had been vested earlier	Defendant: 2013 Judgment attached to Husband’s interest because the clerk’s deed was invalid and the ED order was unrecorded	Court: Reversed — Defendant entitled to summary judgment that Husband still owned an interest when the 2013 Judgment was docketed

Key Cases Cited

Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520 (summary judgment reviewed de novo)
Builders Mut. Ins. Co. v. N. Main Const., Ltd., 361 N.C. 85 (summary judgment standard)
Onslow v. Moore, 129 N.C. App. 376 (Rule 58 applies to orders; order is "entered" when written, signed, filed)
West v. Marko, 130 N.C. App. 751 (oral orders not enforceable until entered)
Creed v. Marshall, 160 N.C. 394 (nunc pro tunc cannot prejudice intervening rights)
State Trust Co. v. Toms, 244 N.C. 645 (orders may be entered nunc pro tunc in some circumstances)
Morris v. Bailey, 86 N.C. App. 378 (pre-1994 practice re: orders and clerk duties)
Long v. Long, 102 N.C. App. 18 (nunc pro tunc ineffective where no prior rendered order)
Rockingham County DSS ex rel. Walker v. Tate, 202 N.C. App. 747 (nunc pro tunc cannot be used to accomplish something that ought to have been done but was not)
Williams v. N.C. State Bd. of Ed., 284 N.C. 588 (deed is conveyed upon delivery)
Whitworth v. Whitworth, 222 N.C. App. 771 (definition and effect of nunc pro tunc)