Quinn v. Quinn , 111 N.C. App. 922 ( 1993 )

McCRODDEN, Judge.

We limit our review of plaintiff’s assignments of error to his challenge to Judge Ellis’s conclusion of law that defendant was entitled to monetary damages as a result of plaintiff’s filing of the lis pendens. We agree with plaintiff that defendant failed to prove a basis upon which to recover for damages allegedly resulting from an improperly filed lis pendens.

N.C. Gen. Stat. § l-116(a)(l) and (d) (1983) require that anyone wishing to give constructive notice of pending litigation affecting title to real property file a separate, independent notice with the clerk of superior court in the county or counties in which the property is located. The complaint is the underlying claim, not the lis pendens. Whyburn v. Norwood, 47 N.C. App. 310, 267 S.E.2d 374 (1980). If one “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 [he] must be liable for the legal consequences.” Chatham Estates v. Banks, 171 N.C. 579, 582, 88 S.E. 783, 784 (1916).

Defendant argued at trial that he was entitled to damages because of plaintiffs negligence in filing the lis pendens. He has failed, however, to provide any authority to support his contention that plaintiff should be held liable for negligently filing the lis pendens, and we can find no such authority.

In Whyburn, as in the case at hand, the defendants did not specify upon which legal theory they were proceeding, and the Court discussed three claims, abuse of process, malicious prosecution, and slander of title, which could arise from an allegedly illegal, unreasonable, and false lis pendens. As discussed in Whyburn, malice is an essential element of each of the tort claims. In the instant case, defendant has failed to allege any malicious intent on the part of plaintiff, and we find no evidence of malice in the record. Defendant argues that evidence that plaintiff filed the lis pendens on the wrong lot, that plaintiff filed the lis pendens to stop the sale of the property, and that defendant suffered damages as a result thereof, is enough to support the conclusion that plaintiff is liable for damages. North Carolina caselaw does not support this position, and we decline to adopt it.

Based upon the foregoing analysis, we find the trial court erred in entering judgment for defendant on his counterclaim, and we reverse.

Reversed.

Judges EAGLES and LEWIS concur.