Clifton T. WHYBURN
v.
H. Ross NORWOOD and wife, Stella G. Norwood; Ronald Benoit; Nancy R. Robinson; Judy R. Harris; Joseph C. Phillips and wife, Teresa A. Phillips; Robert E. Tibbs, Sr., and wife, Carole R. Tibbs; Timir Banerjee and wife, Rita Marie Banerjee; Kenneth W. Waters and wife, Lila C. Waters; Regine Nauman Hayes and husband, Ted W. Hayes; Rex E. Brooks and wife, Carolyn L. Brooks; Mary C. Wientjes; Daniel A. O'Neal and wife, Jackie W. O'Neal; Dyal Jean Weaver; David W. Holmes and wife, Kathleen M. Holmes; Pierre Morell and wife, Bonnie B. Morell; the Guaranty State Bank, a North Carolina Corporation; the Central Carolina Bank and Trust Company, a North Carolina Corporation.
No. 7915SC1175.
Court of Appeals of North Carolina.
June 17, 1980.*376 Epting, Hackney & Long by Joe Hackney, Chapel Hill, for plaintiff-appellee.
Gunn & Messick by Paul S. Messick Jr., and Billy C. Hamlet, Pittsboro, for defendants-appellants.
HILL, Judge.
The question on appeal is whether the trial court erred by granting plaintiff's motion for summary judgment dismissing the defendants Norwoods' counterclaim. The issue raises at least three questions of law which must be addressed by this Court, all of which derive their thrust from the lis pendens filed in this cause.
G.S. 1-116(a) provides that, "[A]ny 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."
Plaintiff's right to file the lis pendens is unquestioned. Defendants contend, however, that by including the entire subdivision, plaintiff's filing constitutes a misuse of a legal process for an ulterior purpose, and that this misuse was recognized by the trial judge when he allowed the defendants' motion to remove the lis pendens from the unaffected area. Plaintiff replies that his appeal was dismissed as being interlocutory only, and that the issue is yet to be decided. Plaintiff further points to the language in the notice of lis pendens which shows that not all of "River Forest Subdivision" is intended to be covered in the lawsuit but rather that "Plaintiff will show that a portion of `River Forest' lands along the western border thereof as shown on the said survey, are owned in fee simple by plaintiff, and that none of the named defendants have any interest or estate therein nor any right to restrict the use thereof."
The first question presented is whether the filing of the notice of lis pendens on 31 March 1979 constituted an abuse of process.
An abuse of process is some unlawful use of the process for the accomplishment of some end foreign to the purpose for which it may be issued.
Carpenter v. Hanes, 167 N.C. 551, 554, 83 S.E. 577, 579 (1914).
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 attempted to be secured. (Citations omitted.)
Melton v. Rickman, 225 N.C. 700, 703, 36 S.E.2d 276, 278 (1945).
The notice of lis pendens and complaint were filed 31 March 1977. The complaint describes with particularity in paragraph 5 the area of ownership in dispute and the adverse claims imposed by the restrictive and protective covenants upon all lot owners in the entire subdivision. The notice of lis pendens clearly states that the purpose of the action is to remove a cloud on plaintiff's title to lands constituting a portion of River Forest Subdivision along the western border thereof. A careful attorney examining title to the lands described in the notice of lis pendens would examine the civil action to which it refers and would identify the exact area which is the subject of the pending litigation.
Restrictive and protective covenants are classed as negative easements and affect title to real estate. We do not have the covenants before us, but apparently they apply to all of the lots in River Forest Subdivision, including the lands claimed by the plaintiff. Enforcement is generally left to the lot owners in the subdivision. If the plaintiff prevails in this suit, it will be *377 fitting at that time to remove all limitations of record affecting plaintiff's property. It is apparent that plaintiff's complaint seeks this result, and that the notice of lis pendens is not abusive in calling the pending suit to the attention of prospective purchasers.
On 30 June 1977 the trial judge defined the lands which are the subject of this controversy with greater particularity and excluded areas of River Forest Subdivision from the provisions of the notice of lis pendens. Such removal clarifies the subject of controversy and makes easier an understanding of the matter, but does nothing more. Therefore, we conclude the appellants have failed to state a claim or to raise any genuine issue of material fact as to the tort of abuse of process.
Next, the appellants contend the filing of the notice of lis pendens constituted an act of malicious prosecution. We do not agree.
To sustain an action for malicious prosecution, the plaintiff [defendants in the instant case] must show malice, want of probable cause, and the favorable termination of the former proceeding.
Melton v. Rickman, supra, at p. 703, 36 S.E.2d at p. 278; Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708 (1940); Carpenter, supra.
When the trial judge removed the notice of lis pendens from all areas other than the lands specifically described in the plaintiff's complaint, plaintiff gave notice of appeal. That appeal was dismissed as being interlocutory and premature. Whyburn, supra. The question is yet to be litigated. Thus, defendants' cause for malicious prosecution is premature. There has been no termination of a former claim favorable to them. Reichler v. Tillman, 21 N.C.App. 38, 203 S.E.2d 68 (1974). Plaintiff has retained his right of appeal.
Finally, we are not impressed with the defendants' contention that filing of the notice of lis pendens constituted an injurious falsehood or slander of title. Slander of title occurs when one publishes matter derogatory to the title to real property with the malicious intent to injure the owner thereof and which in fact does cause injury. Cardon v. McConnell, 120 N.C. 461, 27 S.E. 109 (1897).
Defendants allege the notice of lis pendens is "illegal, unreasonable and false," and that it exceeds the authority contained in and is implicitly forbidden by G.S. 1-116. We do not read the statute as having this effect. In fact, G.S. 1-116 requires the filing of a separate independent notice (lis pendens) if the public is to be advised of pending litigation in certain types of suits involving real property. The complaint is the underlying source of claim, not the notice of lis pendens.
It is well established in North Carolina that one ". . . who wantonly, maliciously, [and] without cause, commences a civil action, and puts upon record a complaint and lis pendens, for the purpose of injuring and destroying the credit and business of another, whereby that other suffers damage, must be liable for the legal consequences." Estates v. Bank, 171 N.C. 579, 88 S.E. 783 (1916). We have examined the record in general and the interrogatories directed to the defendants, together with their answers and fail to find the name of any specific person who has refused to do business with the defendants because of the filing of the lis pendens and the complaint. Defendants in their answer to the interrogatories make charges that inquiries from prospective purchasers have decreased since filing of the lis pendens, and the general public has been deterred from dealing with them. They further conclude that their character has been damaged. These charges are inconclusive. There is no evidence that defendants' alleged damages were proximately caused by the filing of the complaint and lis pendens. Neither do we find any evidence of malice on the part of the plaintiff.
The defendants have failed to state a claim or raise any genuine issue of fact with respect to the tort of slander of title.
For the reasons set out above, we conclude that the action of the trial court in *378 granting plaintiff's motion for summary judgment should be
Affirmed.
ROBERT M. MARTIN and ARNOLD, JJ., concur.