Opinion
No. COA04-1023
Filed 19 April 2005 This case not for publication
Appeal by plaintiff from order entered 8 March 2004 by Judge Clarence E. Horton, Jr., in Stokes County Superior Court. Heard in the Court of Appeals 11 April 2005.
Sylvia B. McKinney, pro se, plaintiff appellant. Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for R. Dean Hartgrove defendant appellee.
Stokes County No. 03 CVS 721.
This is an action by plaintiff Sylvia B. McKinney to declare null and void an execution sale and to recover compensatory damages. Plaintiff was a defendant in the case of Lillie Mae Joyce v. Ricky E. Joyce and Sylvia B. McKinney (Stokes County, 99 CVD 71). On 21 September 1999, judgment was entered against plaintiff in the amount of $10,001.00. Subsequently, defendant Lillie Mae Joyce, through her attorney, defendant Michael R. Bennett, attempted to execute on the judgment by selling plaintiff's real property. Plaintiff complained of errors and irregularities throughout the process. However, defendant R. Dean Hartgrove, Clerk of Superior Court for Stokes County, signed an order confirming the sale of the real property, and the funds from the sale were disbursed to defendant Joyce, and the excess funds disbursed to plaintiff.
On 24 November 2003, plaintiff filed this action against defendants seeking a judgment declaring that the proceedings to sell her real property were null and void. After the sale of her property was confirmed, plaintiff filed an amended complaint seeking compensatory damages. Defendants moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). On 1 March 2004, the trial court entered an order finding that the complaint was a collateral attack on the execution process and order of confirmation in the underlying judgment. The trial court further noted that plaintiff had since filed a motion in the underlying cause to set aside the order of confirmation of the execution sale. Accordingly, the trial court concluded that plaintiff's complaint did not state a claim upon which relief could be granted and dismissed the complaint with prejudice. Plaintiff appeals.
Plaintiff argues that the trial court erred by dismissing the complaint. We do not agree. In Questor Corp. v. DuBose, 46 N.C. App. 612, 265 S.E.2d 501 (1980), the plaintiff also filed an action seeking to declare null and void an execution sale. The plaintiff claimed the execution sale was defective because the defendants did not pay cash for the property. The trial court agreed and summary judgment was entered in favor of the plaintiff. Id. at 613-14, 265 S.E.2d at 503 . We reversed, concluding that the superior court lacked jurisdiction because plaintiff did not appeal from the judgment of confirmation by the clerk. Id. at 614, 265 S.E.2d at 503. This Court stated that:
Plaintiffs cannot avoid the execution sale by collateral attack; they must proceed directly, either by motion in the cause or appeal. The proper remedy to set aside an execution or a sale thereunder is by motion in the cause and not by independent action.
Id. Similarly, here, plaintiff's complaint was an impermissible collateral attack on the order of confirmation. Plaintiff's proper remedy was to appeal, or to file a motion in the cause. Thus, the trial court properly dismissed the action. Accordingly, we affirm.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).