RANDY LEE HAMMITT, and
SANDRA MARIE HAMMITT,
Petitioners,
v
.
Gaston County
No. 05 CVS 416
WILLIAM WALT PETTIT and
KELLAM & PETTIT, P.A.,
Respondents.
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.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30 (e).
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