United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court upon defendant John W. Dees's
(“Dees”) motion to dismiss or for judgment on the
pleadings, (DE 22), and upon plaintiffs' motions for
default judgment and preliminary injunction. (DE 28, 30). The
issues presented are ripe for ruling. For the reasons that
follow, plaintiffs' motions are denied, and Dees's
motion is granted in part, denied in part, and converted to a
motion for summary judgment.
court proceeds here immediately to discussion of issues
pertinent to the pending motions where the case background is
a matter of record. Following extension of deadlines to make
proof of service, (DE 17), plaintiffs lodged on the docket
affidavits executed by plaintiff James Jacobs (“James
Jr.”), which provide adequate evidence of service as to
all defendants. (See DE 20). Following expiration of
the deadline for responsive pleadings, with no such
responsive pleadings having been received except with respect
to defendant Dees,  the court, on plaintiffs' motion,
directed the clerk to enter default against the
non-responding defendants, (Aug. 24, 2017, Text Order; Nov.
6, 2017, Text Order), but denied plaintiffs' motions for
default judgment where proceedings involving Dees remain
ongoing and where claims against Dees are intertwined with
claims against other defendants.
these procedures, defendant Dees filed the instant motion to
dismiss or for judgment on the pleadings. (DE 22). Plaintiffs
responded to the motion by way of two separate responsive
memoranda. (DE 26, 31). Dees made no reply.
addition, following defendant Dees's motion to dismiss,
plaintiffs renewed previous motions for default judgment and
moved for preliminary injunction by two separately-filed
motions. (DE 28, 30). The latter filing restates the
contentions set forth in the former filing in slightly
different language, adds a sentence expanding upon the motion
for preliminary injunction, which was referenced in the
former motion only in its caption, and includes a certificate
of service and proposed order, which documents were not
integrated with the former motion. No defendant has responded
to either motion for default judgment or preliminary
OF THE ALLEGED FACTS
facts alleged in the pleadings may be summarized as follows.
Plaintiffs James Jr. and Barbara Stephens
(“Stephens”) are brother and sister. (DE 10
¶ 9). Plaintiff Stephens is also known as Barbara Ann
Jacobs. (DE 14 ¶ 12). James R. Jacobs (“James
Sr.”) is the deceased husband of Erma Jo Jacobs
(“Erma”). James Sr. and Erma are plaintiffs'
parents. (DE 10 ¶ 12; DE 14 ¶ 33).
Philyaw approached Erma in 2002 offering to purchase timber
on certain land in which plaintiffs also had an interest
(“the subject property”), which offer was
increased in scope so as to include the property itself. (DE
10 ¶ 16). Defendant Philyaw hired defendant Dees, an
attorney, to represent him in this matter. (Id.
¶¶ 17, 18). Two deeds dated August 26, 2002 (the
“August deed”) and September 3, 2002 (the
“September deed”) were each filed simultaneously
with the Cumberland County Register of Deeds on September 4,
2002, and purport to transfer ownership of the subject
property to Raleigh Land & Timber Associates (the
“2002 transaction”). (DE 1-1; DE
1-4). At all times while Erma and Philyaw
negotiated and executed the 2002 transaction, Erma suffered a
cognitive impairment later diagnosed and dementia and
Alzheimer's disease. (DE 10 ¶ 14).
August and September deeds bear the signatures of Erma, James
Sr. and plaintiff Stephens. (DE 1-1; DE 1-4). According to
the complaint, plaintiffs and James Sr. were not alerted to
the 2002 transaction when it took place. (DE 10 ¶ 33).
Plaintiffs allege they first learned of the 2002 transaction
in February, 2016. (DE 10 ¶ 28).
complain also of the actions of the deceased non-party Victor
Bose (“Bose”), a notary. Although plaintiffs do
not allege that signatures appearing on the August and
September deeds are forgeries, plaintiffs allege that Bose
participated in the scheme to effect the 2002 transaction by
notarizing presence of plaintiff Stephens and James Sr. when
those individuals were not in Bose's presence at time of
signing. (DE 10 ¶¶ 22-24).
the 2002 transaction, defendant Philyaw transferred the
subject property to defendant Robert and Henrietta Bethea.
(DE 14 ¶ 24). Plaintiff alleges that defendant Daughtry
perpetrated some manner of foreclosure scam against
plaintiffs unrelated to the facts at issue in this case
except insofar as plaintiffs' investigation of that
matter led them to discover the facts in issue here.
(See DE 14 ¶ 28). Embedded in the amended
complaint is a request to restrain George Autry and/or Farm
and Land Realty, neither of which is a defendant, from
conveying the subject property, now being offered for sale.
(DE 10 ¶ 35).
defendant Dees has answered. (DE 12). In his answer he
asserts, among other things, that only Erma and plaintiff
Stephens owned the subject property at time of its transfer.
(Id. at 3 ¶ 20). He attaches a deed identifying
the two as receiving the subject property in February 1979
(the “1979 deed”), which deed was re-recorded to
reflect the correct spelling of Erma's name. (DE 12-1; DE
12-2). The deed to Raleigh Land & Timber Associates
references prior deed recorded in 1979, by book and page for
further description. (DE 1-1 at 1 (“See Book 2706, Page
57, for chain of title.”)).
their reply,  plaintiffs' admit that the two deeds
attached to defendant Dees's answer are authentic. (DE 14
at 6 ¶ 2 (“Plaintiffs agree that the two deeds
mentioned by [Dees] were recorded as he mentioned.”)).
Moreover, plaintiffs allege that, “[t]he listing of
added grantors came afterwards[, ]” which statement
sounds as allegation that plaintiff James Jr. acquired an
interest in the subject property after it was transferred to
Erma and Stephens in 1979. (DE 14 at 6 ¶ 2). Indeed, the
reply discloses that document attached thereto as exhibit A1,
(DE 14-2), which document plaintiffs obtained from the
Cumberland County Register of Deeds in Fayetteville, North
Carolina, (DE 14 at 5 ¶ 29), is the touchstone of
plaintiffs' contention that plaintiff James Jr. was a
part owner of the subject property before 2002 (the
“Cumberland County detail”). The Cumberland
County detail reads as follows:
reply includes also a signed copy of the September deed with
a handwritten note attached stating “copies for each
family group[, ]” (DE 14-4), and an unsigned document
titled “Lien Waiver” with language constituting
representation of Erma, James Sr., and Stephens, that the
subject property is free of any cloud on the title. (DE
14-5). The lien waiver includes two handwritten notes
stating, “This lien waiver original & copy is just
for your records. What we have already signed is good”
and “You can sign this to match timber deed if
you'd like. Our faxed lien waiver is good however.”
(Id.). Plaintiffs point to these notes as evidence
that defendants Philyaw and Dees improperly “coached
Erma  by prompting her where and when to sign intended
documents.” (DE 14 at 4 ¶ 24).
discovery of the foregoing facts, plaintiffs initiated this
Standard of Review
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint but “does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992);
see also Edwards v. City of Goldsboro, 178 F.3d 231,
243-44 (4th Cir.1999). A complaint states a claim under
12(b)(6) if it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Asking for plausible grounds . . . does not impose a