Hewes v. Johnston

301 S.E.2d 120 (1983)

Mr. and Mrs. Charles F. HEWES, Plaintiffs, v. Hugh W. JOHNSTON Defendant, and Hugh W. JOHNSTON, Third Party Plaintiff, v. Charles F. HEWES and Brenda P. Hewes, his wife, and Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, Third Party Defendants.

No. 8227SC417.

Court of Appeals of North Carolina.

April 5, 1983.

Harry C. Hewson and Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and William L. Rikard, Jr., Charlotte, for plaintiffs and third-party defendants, appellees.

Basil L. Whitener and Anne M. Lamm, Gastonia, for defendant and third-party plaintiff, appellant.

*121 HEDRICK, Judge.

Defendant and third-party plaintiff, Hugh W. Johnston, contends the trial court erred in ordering dismissal of his claims against the third-party defendants, Mr. and Mrs. Hewes, and against the third-party defendants, Grier-Parker. To prevent a Rule 12(b)(6) dismissal, a party must (1) give sufficient notice of the events on which the claim is based to enable the adverse party to respond and prepare for trial, and (2) "state enough to satisfy the substantive elements of at least some legally recognized claim...." Orange County v. Dept. of Transportation, 46 N.C.App. 350, 378-379, 265 S.E.2d 890, 909 (1980) (citing Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970) and Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)).

The third-party complaint does not satisfy these tests for overcoming a motion to dismiss because, (1) it does not give sufficient notice of an event constituting abuse of process, and (2) it does not allege the substantive elements of abuse of process. Abuse of process requires both an ulterior motive and a wilful act that are improper and collateral to the suit. Stanback, 297 N.C. at 200-201, 254 S.E.2d at 624. The third-party complaint alleges a motive of harassment in the filing of suit by third-party defendants, but there is no allegation of an improper wilful act during the course of the proceedings. Nor does the pleading mention any facts or events that could conceivably support a finding of a wilful act. Consequently, third-party plaintiff did not state a claim for which relief could be granted, and the orders to dismiss were proper.

Third-party defendants' appeal of the denial of their motion to dismiss third-party plaintiff's appeal has been rendered moot by this decision.

The orders appealed from are affirmed.

WHICHARD and BRASWELL, JJ., concur.