An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-648


Filed: 21 February 2006



v .                         Gaston County
                            No. 05 CVS 416


    Appeal by petitioners from an order entered 14 February 2005 by Judge Laura J. Bridges in Gaston County Superior Court. Heard in the Court of Appeals 7 December 2005.

    Randy Lee Hammitt and Sandra Marie Hammitt, Pro Se, for petitioner-appellants.

    Kellam & Pettit, P.A., by William Walt Pettit, for respondent- appellees.

    JACKSON, Judge.

    Petitioners appeal from an order entered 14 February 2005 in the Superior Court of Gaston County dismissing their complaint with prejudice for failure to state a claim upon which relief could be granted.
    Respondent Pettit, acting on behalf of respondent Kellan & Pettit, P.A. (collectively referred to as “respondents”) in its capacity as counsel for Citicorp trust Bank, FSB (“Citicorp”), sought the enforcement of a Default Judgment of Forfeiture entered26 October 2004 in the United States District Court for the Western District of North Carolina against Phillip Mark Vaughan (“Vaughan”). The default judgment provided, inter alia, that the real property located at 555 Whitehorn Drive, Gastonia, North Carolina (“Whitehorn Drive property”) was forfeited to the United States subject only to the rights and lien on the property in favor of Citicorp.
    Petitioners have been in possession of the Whitehorn Drive property pursuant to a lease and option to purchase. Petitioners maintain that they are the equitable owners of the Whitehorn Drive property with a vested interest in it due to a default judgment against Vaughan in their favor for breach of the lease agreement and option to purchase and that the United States District Court did not have jurisdiction over the Whitehorn Drive property.
    Respondents continued to seek enforcement of the default judgment entered in the federal district court. Petitioners filed the complaint in the instant action 31 January 2005 against respondent Pettit personally and against Pettit's law firm. In their compliant, petitioners alleged claims for malicious abuse of process, trespass, conversion, defamation/libel, misrepresentation, fraud, deceit, malfeasance, breach of fiduciary duty, and legal malpractice. Respondents filed a motion to dismiss for failure to state a claim. The trial court granted respondents' motion 14 February 2005 and dismissed petitioners' claims with prejudice. Petitioners timely appealed.    Petitioners' sole assignment of error is that the trial court erred in dismissing their complaint with prejudice for failure to state a claim upon which relief can be granted as the “complaint clearly stated causes of action under common law torts.” The standard of review for a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of appellate procedure “is whether, if all the plaintiff's allegations are taken as true, the plaintiff is entitled to recover under some legal theory.” Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003).
    The first cause of action presented in petitioners' complaint is for abuse of process.
        “[A]buse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attended (sic) to be secured.”

Stanback v. Stanback, 297 N.C. 181, 200, 254 S.E.2d 611, 624 (1979), disc. review denied, 304 N.C. 197, 285 S.E.2d 101 (1981) (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965))(emphasis omitted). The elements necessary to recover on an abuse of process claim are: “(1) the existence of an ulterior purpose; and (2) an act in the use of the process not proper in the regular prosecution of the proceeding.” Beroth Oil Co. v. Whiteheart, __ N.C. App. __, __ 618 S.E.2d 739, 747 (2005) (citingBarnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d 223, 227-28 (1955)).
    In the instant case, petitioners fail to indicate what action or actions by respondents give rise to this claim. Petitioners have failed to allege facts, even if taken as true, sufficient to state a claim. Further, respondents' only actions in this matter have amounted to efforts to enforce the Federal District Court Order in favor of the United States which was subject to the security interest of Citicorp. That court order has not been shown to have been judicially determined to be invalid and, accordingly, respondents were not attempting to achieve a result not lawfully attainable under the order. Therefore, we hold that petitioners' complaint fails to state a claim for abuse of process.
    The next cause of action petitioners raise in their complaint is trespass. “The elements of a trespass claim are that plaintiff was in possession of the land at the time of the alleged trespass; that defendant made an unauthorized, and therefore unlawful, entry on the land; and that plaintiff was damaged by the alleged invasion of his rights of possession.” Jordan v. Foust Oil Co., 116 N.C. App. 155, 166, 447 S.E.2d 491, 498 (1994), disc. review denied, 339 N.C. 613, 454 S.E.2d 252 (1995). In the case sub judice, petitioners' complaint does not allege the essential element of an entry onto the property in question. Therefore, the allegations in the complaint, even taken as true, are not sufficient to withstand respondents' motion to dismiss for failure to state a claim.    Petitioners next raised the cause of action of conversion in their complaint. The elements of the tort of conversion are: (1) the unauthorized assumption and exercise of the right of ownership; (2) over goods or personal chattels belonging to another; and (3) to the exclusion of the owner's rights. Lake Mary Ltd. Part. v. Johnston, 145 N.C. App. 525, 531, 551 S.E.2d 546, 552, disc. review denied, 354 N.C. 363, 557 S.E.2d 539 (2001). In the instant case, petitioners' complaint fails to allege any of the elements required for a claim for conversion. No allegation of an assumption or exercise of the right of ownership to the real property is made, the property in question is neither goods nor chattels, and the institution of the legal process by respondents ensured that petitioners' legal rights (if any) would be preserved. Accordingly, petitioners' claim for conversion cannot withstand respondents' motion to dismiss.
    Petitioners next attempt to present a claim for libel based on unspecified language contained in filings made by respondents in the United States District Court. “'[A] defamatory statement made in due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice.'” Harman v. Belk, 165 N.C. App. 819, 824, 600 S.E.2d 43, 47 (2004) (quoting Jarman v. Offutt, 239 N.C. 468, 472, 80 S.E.2d 248, 251 (1954)). “'In deciding whether a statement is absolutely privileged, a court must determine (1) whether the statement was made in the course of a judicial proceeding; and (2) whether it was sufficiently relevant to thatproceeding.'” Id. (quoting Harris v. NCNB Nat'l Bank of N.C., 85 N.C. App. 669, 672, 355 S.E.2d 838, 841 (1987)).
    In the instant case, any allegedly libelous statements contained in filings with the United States District Court clearly were made in the course of a judicial proceeding. In a complaint for libel, “the words attributed to defendant [must] be alleged 'substantially' in haec verba, or with sufficient particularity to enable the court to determine whether the statement was defamatory.” Stutts v. Duke Power Co., 47 N.C. App. 76, 84, 266 S.E.2d 861, 866 (1980). Here, petitioners fail to identify the allegedly libelous statements, either specifically or in substance, which prevents judicial determination of whether the statements were sufficiently relevant to the proceeding. As petitioners failed to identify the allegedly libelous statements, their cause of action for libel fails to state a claim. See Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 21, 290 S.E.2d 732, 737 (1982).
    The next cause of action set forth in the complaint alleges misrepresentation, fraud and deceit. The essential elements for a cause of action based on fraud are: “(1) [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, and (5) resulting in damage to the injured party.” Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677 (1981) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)). Allegations of fraud must be stated with particularity. N.C. Gen. Stat. . 1A-1, Rule 9 (b) (2003). In the case sub judice, petitioners neither identify any specific statements or conduct by respondents that were false or misleading, nor allege that they were deceived in any way by such allegedly false or misleading statements. Consequently, petitioners' complaint was not sufficient to state a claim for fraud.
    Petitioners next seek damages for breach of fiduciary duty based upon breaches of duty allegedly owed to them by virtue of respondent Pettit's oath of office as an attorney. A fiduciary relationship must exist between parties before a claim can arise for breach of fiduciary duty. White v. Consol. Planning, Inc., 166 N.C. App. 283, 293, 603 S.E.2d 147, 155 (2004), disc. review denied, 359 N.C. 286, 610 S.E.2d 717 (2005). A fiduciary relationship exists when one party places special confidence in another such that the party in whom such special confidence is placed is bound to act in the best interests of the party placing the confidence. Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707-08 (2001). Influence over the complaining party by virtue of the trust placed in the alleged fiduciary is an essential element of a fiduciary relationship. See Id., 353 N.C. at 652, 548 S.E.2d at 708.
    In the case sub judice, respondents represent a party whose interest in the real property in question is adverse to petitioners' interest in the property. This alone precludes respondents from having a duty to act in the best interest of petitioners as this would be contrary to the best interest of theirown client to whom they unquestionably owe fiduciary duty. Accordingly, respondents owed no fiduciary duty to petitioners and, therefore, could not have breached such a duty. Therefore, petitioners' complaint fails to state a claim for breach of fiduciary duty.
    Within their claim for breach of fiduciary duty, petitioners attempt to allege that respondents violated Rule 8.4 of the North Carolina Rules of Professional Conduct. Petitioners fail to affirmatively assert, however, that respondents engaged in any activities prohibited by Rule 8.4. Instead petitioners merely set forth the bare allegation that,
        59.    Respondents also know that to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that is prejudicial to the administration of justice, and/or knowingly assist a judge or judicial officer in conduct that is a violation of the applicable Rules of Judicial Conduct, or other law, is a misconduct and a violation of the Revised Rules of Professional Conduct of North Carolina, Rule 8.4.

Although this is an accurate restatement of some of the provisions of Rule 8.4, petitioners fail to bring forth any allegation of an alleged violation of the rule. Further, they present no evidence elsewhere in the complaint that supports such an allegation.
    The final cause of action petitioners allege in their complaint is for legal malpractice. “An attorney 'is answerable in damages for any loss to his client which proximately results from . . . the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.'” Fox v.Wilson, 85 N.C. App. 292, 299, 354 S.E.2d 737, 742 (1987) (quoting Hodges v. Carter, 239 N.C. 517, 520, 80 S.E. 2d 144, 146 (1954)) (emphasis added). In the instant case petitioners were not respondents' clients and, as discussed supra, respondents owed no fiduciary duty to petitioners. Consequently, petitioners complaint fails to state a claim for legal malpractice.
    As we have found that none of the causes of action contained in petitioners' complaint state a cognizable claim, we find no error in the trial court's grant of respondents' motion to dismiss.
    Judges BRYANT and CALABRIA concur.
    Report per Rule 30 (e).

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