Lawyers Title Insurance v. Langdon

371 S.E.2d 727, 91 N.C. App. 382, 1988 N.C. App. LEXIS 870
CourtCourt of Appeals of North Carolina
DecidedSeptember 20, 1988
DocketNo. 883SC38
StatusPublished
Cited by4 cases

This text of 371 S.E.2d 727 (Lawyers Title Insurance v. Langdon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawyers Title Insurance v. Langdon, 371 S.E.2d 727, 91 N.C. App. 382, 1988 N.C. App. LEXIS 870 (N.C. Ct. App. 1988).

Opinion

JOHNSON, Judge.

Plaintiffs, Lawyers Title Insurance Corporation, the title insurer of the real property which is the subject of this dispute, and several individual owners of condominium units, instituted this civil action to prevent a judicial sale of their condominium units to satisfy a lien upon the property. The lien was attached pur[383]*383suant to a judgment obtained by one of the defendants in the instant case, Benjamin I. Langdon, a contractor who constructed the units in question. The pertinent underlying facts appear as follows.

Benjamin I. Langdon entered into a contract with B.W.T. Enterprises, Inc. and Barbour Construction Company to perform certain services for the construction of condominium units on the property owned by B.W.T. Enterprises, Inc. and Barbour Construction Company, located in Carteret County, North Carolina. A dispute arose over the payment of funds which Langdon contended were owed to him. Langdon then filed notice of a claim of lien against all condominium units and properties known as the Queen’s Court Condominium Project at Emerald Isle. This is the same property which the plaintiffs in this action now own individually. The claim of lien was filed on 2 October 1985, within 120 days of the last date of the furnishing of labor and materials.

On 21 October 1985, Langdon filed a complaint (85CVS819) against B.W.T. Enterprises, Inc. and Barbour Construction Company, who are the same parties set forth in the claim of lien. The complaint also refers to the Queen’s Court Condominium Project at Emerald Isle and alleges that the conflict arose over the construction of the condominium units. The amount of damages prayed for is the same amount which is stated in the claim of lien.

On 18 November 1986, the case came on for trial. At trial no one appeared on behalf of the defendants. The trial court inquired as to whether notice had been given to defendants and proceeded after having become satisfied that defendants had been given notice. Langdon then made a motion to amend the complaint to include a claim of lien, and asked the court to allow the amendment in order to enforce the claim of lien filed 2 October 1985. The trial court granted his motion. On the same date, the judgment was entered in favor of Langdon.

No appeal was taken from the judgment nor was any action brought pursuant to G.S. sec. 1A-1, Rule 60(b) for relief from the judgment. After the judgment was filed, Langdon directed the sheriff of Carteret County to begin sale proceedings to have a judicial sale pursuant to the execution issued by Langdon to satisfy his judgment. The sale for one of the condominium units which would have been subject to the lien was set for 29 May 1987.

[384]*384On 11 May 1987, plaintiffs filed the complaint in this case alleging, inter alia, that defendants, Langdon, B.W.T. Enterprises, Inc., and Barbour Construction Company knew, or should have known, that the condominium units had been sold to the individual plaintiffs long before the trial of their suit on 18 November 1986. They further alleged that the plaintiffs had substantial rights and interests in the condominium units and should have been made parties to the original suit prior to trial, if the parties to the original suit intended to litigate the enforcement of the claim of lien. Plaintiffs sought: (1) to have the prior judgment entered on 18 November 1986 in Langdon’s favor, declared void ab initio; (2) to have the claim of lien declared void and of no force or effect; and (3) to restrain Langdon from proceeding with the execution upon the plaintiffs’ properties pursuant to the 18 November 1986 judgment. The plaintiffs also demanded relief from Langdon in an amount in excess of $10,000.00.

On that same date, plaintiffs also filed a motion for a temporary restraining order to enjoin “[defendants and all those in active concert or participation with them from proceeding further with judicial execution” or sale of the disputed property. Plaintiffs’ motion for a temporary restraining order was allowed on 26 May 1987, enjoining defendants from proceeding further in executing upon the judgment pending adjudication of the action upon the merits.

On 11 September 1987, plaintiffs filed a motion for summary judgment which was granted, except as to the issue of damages. The court declared the claim of lien void and of no force or effect. The judgment entered on 18 November 1986 was also declared void and of no force or effect but only as it relates to the enforcement of the lien on plaintiffs’ condominium property pursuant to G.S. sec. 44A-13. The remaining terms and conditions were declared to remain in full force and effect.

From this judgment defendant Langdon gave notice of appeal.

Defendant assigns as error the trial court’s decision to allow plaintiffs’ motion for partial summary judgment, and declaring the claim of lien void and the judgment entered on 18 November 1986 void and of no force or effect as it relates to the enforcement of the lien.

[385]*385G.S. sec. 1A-1, Rule 56(c) provides in part that:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Defendant contends that the partial summary judgment should have been denied since there was a genuine issue, maintained by substantial evidence, as to a material fact. He argues that the genuine issue is whether the plaintiffs should have brought their action pursuant to G.S. sec. 1A-1, Rule 60(b) for relief from the judgment, instead of filing an independent action to attack the judgment.

G.S. sec. 1A-1, Rule 60(b) allows relief from a final judgment or order to a party or his legal representative, upon motion, where the party demonstrates a flaw in the judgment based upon mistake, inadvertence, excusable neglect or other enumerated conditions. The plaintiffs in the case sub judice were never made parties to the original Langdon suit against B.W.T. Enterprises, Inc. and Barbour Construction Company; therefore, plaintiffs were excluded from using G.S. sec. 1A-1, Rule 60(b) in order to attack the judgment, since G.S. sec. 1A-1, Rule 60(b) does not apply to non-parties or strangers to the action giving rise to the judgment or order. Browne v. Catawba County Dept. of Social Services, 22 N.C. App. 476, 206 S.E. 2d 792 (1974). The only option or method of defense available to plaintiffs, was to file an independent action to directly attack the judgment as it affected their interests. The judgment had to appear void on its face for a direct attack to be proper. Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 239 S.E. 2d 566 (1977). If the judgment does not appear void upon its face, then the plaintiff must allege facts which, if corroborated by competent evidence, would render an apparently valid judgment a nullity. Id.

The defendant, Langdon (plaintiff in the original action), sought to amend his original complaint, in which he sought monetary damages only from B.W.T. Enterprises, Inc. and Barbour Construction, to include an entirely new cause of action for the enforcement of a lien pursuant to G.S. sec. 44A-13(a). His motion to amend the complaint was allowed, however, notice was not [386]

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Bluebook (online)
371 S.E.2d 727, 91 N.C. App. 382, 1988 N.C. App. LEXIS 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawyers-title-insurance-v-langdon-ncctapp-1988.