Clerks of Court--alleged negligence or misconduct in performance of official duties--notice
of lis pendens not required to be cross-indexed on public record
The trial court did not err by granting defendants' N.C.G.S. § 1A-1, Rule 12(b)(6) motion
to dismiss plaintiff's claim for the alleged negligence or misconduct of a clerk of superior court
in the performance of his official duties based on a failure to cross-index in the public record a
notice of lis pendens on defendant's property, because: (1) plaintiff's prayer for relief asks the
court to order defendant to refinance the property or reconvey a one-half interest in the property
to plaintiff since defendant former husband did not abide by the terms of the parties' separation
agreement; (2) the courts of this state have consistently held that the lis pendens statute under
N.C.G.S. § 1-116 does not apply to an action to secure a personal money judgment even though
such a judgment, if obtained and properly documented, is a lien upon the land of defendant; and
(3) plaintiff was not entitled to have the notice of lis pendens cross-indexed on the public record
since an action to enforce a separation agreement, absent any allegation of fraudulent conduct, or
the existence of an express or implied trust, or allegations that would support a cause of action
for specific performance, does not bring the direct affect on title to property required to bring it
within the meaning of N.C.G.S. § 1-116.1(a)(1).
James L. Dellinger, Jr., for plaintiff-appellant.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Charles J. Murray, for defendants-appellees.
CAMPBELL, Judge.
Plaintiff appeals from an order granting defendants' motion to
dismiss pursuant to N.C.R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted. We affirm.
The uncontested pertinent facts and procedural history include
the following: On 9 August 1994, plaintiff and her former husband,
Tony David Johnson, entered into a separation agreement, in whichplaintiff agreed to release her interest in their marital home
located in Stokes County, North Carolina. In return, Tony David
Johnson agreed to assume all obligations with regard to the marital
home, to refinance the outstanding mortgage loan on the marital
home within six months, and to pay plaintiff $7,500 upon sale of
the property. Pursuant to this separation agreement, plaintiff
executed a quitclaim deed on 25 August 1994 releasing her interest
in the marital home.
On 20 March 1996, plaintiff instituted an action (96 CVD 115)
in Stokes County District Court against her former husband
alleging refusal to perform obligations under the separation
agreement and seeking damages for breach of the agreement.
Plaintiff alleged that the parties had entered into the separation
agreement, and plaintiff had abided by the agreement in releasing
her interest in the marital home. Plaintiff further alleged that
defendant had failed and refused to refinance the marital home,
thus breaching the separation agreement and causing damage to
plaintiff. In the prayer for relief, plaintiff sought damages in
excess of $10,000. Plaintiff also sought to compel defendant to
refinance the property pursuant to the agreement, or to reconvey a
one-half interest in the marital home to plaintiff. On 20 March
1998, plaintiff filed a notice of lis pendens with the Clerk of
Superior Court of Stokes County, seeking to give record notice of
the pending action against her former husband, and claiming that
one of the objects of the pending action was a one-half interest in
the marital home. On 13 May 1998, Tony David Johnson conveyed the
property in question to Wilbur L. Goad and his wife, Tammy P. Goad. On 8 July 1999, plaintiff instituted the instant action
against defendants, alleging negligence on the part of R. Dean
Hartgrove (Hartgrove), in his official capacity as Clerk of
Superior Court of Stokes County, in failing to accurately and
properly maintain the public records of Stokes County, and against
the Administrative Office of the Courts, in its position as
supervisor of the Judicial Department of the State of North
Carolina. Specifically, plaintiff contended that the notice of lis
pendens filed in connection with 96 CVD 115 had not been correctly
indexed. Consequently, plaintiff's interest in the marital
property had not been protected, in that the lien she had sought to
perfect by filing the notice of lis pendens had not appeared on the
public record during the title examination conducted in connection
with the transfer of the subject property from Tony David Johnson
to Wilbur and Tammy Goad.
On or about 23 August 1999, defendants filed a motion to
dismiss for lack of jurisdiction over the subject matter pursuant
to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), and failure to state a
claim upon which relief can be granted pursuant to Rule 12(b)(6).
On 17 December 1999, the trial court entered an order granting
defendants' motion to dismiss for failure to state a claim upon
which relief can be granted. Plaintiff appeals from this ruling.
We begin by noting that any cause of action based upon alleged
negligence or misconduct of any clerk of superior court in the
performance of his or her official duties must comply with N.C.
Gen. Stat. § 58-76-5. The parties do not address this requirementin their arguments on appeal, but we emphasize that nothing in this
opinion is intended to affect the application of G.S. § 58-76-5 to
any such claim.
Plaintiff argues the trial court erred in granting defendants'
Rule 12(b)(6) motion. Under Rule 12(b)(6), a claim should not be
dismissed unless it appears beyond doubt that plaintiff is entitled
to no relief under any set of facts which could be proven. Garvin
v. City of Fayetteville, 102 N.C. App. 121, 401 S.E.2d 133 (1991).
“[T]his will occur when there is a want of law to support a claim
of the sort made, an absence of facts sufficient to make a good
claim, or the disclosure of some fact which will necessarily defeat
the claim.” Id. at 123, 401 S.E.2d at 135. In analyzing the
complaint under Rule 12(b)(6), the complaint must be liberally
construed. Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757
(1987). In reviewing the grant of a motion to dismiss for failure
to state a claim, the question for an appellate court is “whether,
as a matter of law, the allegations of the complaint, treated as
true, are sufficient to state a claim upon which relief may be
granted under some legal theory, whether properly labeled or not.”
Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435
S.E.2d 537, 541 (1993), disc. review denied, 335 N.C. 770, 442
S.E.2d 519 (1994).
In the present case, plaintiff contends defendant Hartgrove
failed to properly maintain the public records of Stokes County,
which he was required by law to do as Clerk of Superior Court of
Stokes County. Plaintiff alleges the notice of lis pendens filed in connection with 96 CVD 115 did not show up in the public records
of Stokes County during the title examination conducted by the
closing attorney, William F. Marshall, Jr. Specifically, plaintiff
alleges the notice of lis pendens was not properly indexed in the
judgment index, as required by N.C. Gen. Stat. §§ 1-117 and 7A-
109(b)(6). Taking all of the allegations of plaintiff's complaint
as true, the underlying basis of plaintiff's claim is that she was
entitled to have the notice of lis pendens that was filed in
connection with 96 CVD 115 cross-indexed to appear on the public
record. If defendant Hartgrove was not required by law to cross-
index the notice of lis pendens filed in connection with 96 CVD
115, then his failure to do so, whether negligent or intentional,
cannot be the basis for any claim for relief. Therefore, the
question for this Court is whether 96 CVD 115 is the type of action
in which a notice of lis pendens is required to be cross-indexed to
appear on the public record.
In this State the common law rule of lis pendens has been
replaced by the provisions of N.C. Gen. Stat. § 1-116 to N.C. Gen.
Stat. § 1-120.2. Cutter v. Realty Co., 265 N.C. 664, 144 S.E.2d
882 (1965). Thus, valid notice of lis pendens is only proper in
one of the three types of actions enumerated in G.S. § 1-116(a),
which reads as follows:
(a) Any person desiring the benefit of
constructive notice of pending litigation must
file a separate, independent notice thereof,
which notice shall be cross-indexed in
accordance with G.S. 1-117, in the following
cases:
(1) Actions affecting title to real property;
(2) Actions to foreclose any mortgage or deed
of trust or to enforce any lien on real
property; and
(3) Actions in which any order of attachment
is issued and real property is attached.
N.C. Gen. Stat. § 1-116(a)(1999); Cutter, 265 N.C. 664, 667, 144
S.E.2d 882, 884. “[N]otice of lis pendens may not properly be
filed except in an action, a purpose of which is to affect directly
the title to the land in question or to do one of the other things
mentioned in the statute.” Id. at 668, 144 S.E.2d at 885 (emphasis
added). Since it is clear from the complaint in 96 CVD 115 that
the nature of plaintiff's action does not fall within (a)(2) or
(a)(3), then the notice of lis pendens filed by plaintiff in 96 CVD
115 can only be required to be cross-indexed by the clerk of
superior court pursuant to N.C. Gen. Stat. § 1-117 if it directly
affects title to real property.
In determining whether a cause of action affects title to real
property within the meaning of G.S. § 1-116(a)(1), the nature of
the action must be analyzed by reference to the facts alleged in
the body of the complaint rather than by what is contained in the
prayer for relief. Pegram v. Tomrich Corp., 4 N.C. App. 413, 166
S.E.2d 849 (1969). Although plaintiff's prayer for relief asks the
court to order defendant to refinance the property or reconvey a
one-half interest in the property to the plaintiff, our analysis
must focus solely on the allegations of the complaint, and whether
they give rise to an action that sufficiently affects title to realproperty.
Actions which are considered to fall within the lis pendens
statute include actions to set aside deeds or other instruments for
fraud, to require specific performance, or to correct a deed for
mutual mistake, and other like cases where the claim is brought for
the purpose of changing the record, not for the purpose of
preventing a change in the record. Cutter, 265 N.C. 664, 144
S.E.2d 882. “An action to establish a trust as to certain
described real property is an action 'affecting title to real
property' under G.S. 1-116(a)(1) . . . .” Pegram, 4 N.C. App. 413,
415, 166 S.E.2d 849, 851. Likewise, “a claim for relief by a
creditor seeking to set aside a fraudulent conveyance pursuant to
G.S. 39-15 et seq. constitutes an action 'affecting title to real
property' within the meaning of G.S. 1-116(a)(1).” Bank v. Evans,
296 N.C. 374, 381, 250 S.E.2d 231, 236 (1979). However, the courts
of this state have consistently held that the lis pendens statute
does not apply to an action the purpose of which is to secure a
personal money judgment even though such a judgment, if obtained
and properly docketed, is a lien upon the land of the defendant
named in the complaint. Cutter, 265 N.C. 664, 144 S.E.2d 882;
Pegram, 4 N.C. App. 413, 166 S.E.2d 849.
Focusing on the allegations of the complaint, plaintiff's
cause of action in 96 CVD 115 does not fit into the category of
cases which have been held to directly affect title to real
property under the lis pendens statute. There is no allegationthat the separation agreement included an agreement, express or
implied, that defendant hold title to the marital home as trustee
for the mutual benefit of the parties. Nor is there any allegation
of fraudulent conduct on the part of defendant which could support
imposition of a constructive trust declaring defendant trustee.
The allegations of plaintiff's complaint do not support a claim for
specific performance requiring reconveyance of one-half of the
marital home to plaintiff, nor any other claim brought for the
purpose of changing the record. Plaintiff's complaint merely
alleges that her former husband did not abide by the terms of their
separation agreement, thereby causing damage to plaintiff.
Plaintiff's complaint is similar to the personal money judgment
claims which have consistently been held not to affect title to
real property within the meaning of G.S. § 1-116(a)(1).
Therefore, we hold that an action to enforce a separation
agreement, absent any allegation of fraudulent conduct, or the
existence of an express or implied trust, or allegations that would
support a cause of action for specific performance, does not have
the direct affect on title to real property required to bring it
within the meaning of G.S. § 1-116(a)(1). This is the case,
notwithstanding the fact the plaintiff may have released marital
property rights pursuant to the separation agreement. Cf. McLeod
v. McLeod, 266 N.C. 144, 146 S.E.2d 65 (1966). Consequently, we
find that plaintiff's cause of action in 96 CVD 115 does not have
a sufficient direct affect on title to real property to bring it
within the lis pendens statute. Based on our conclusion that plaintiff's cause of action in 96
CVD 115 does not affect title to real property, plaintiff was not
entitled to have the notice of lis pendens cross-indexed on the
public record, and defendant Hartgrove's failure to do so cannot be
a proper legal basis for the claim in the instant case. Therefore,
we hold the trial court did not err in granting defendants' Rule
12(b)(6) motion to dismiss.
Affirmed.
Judges WALKER and HUNTER concur.
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