JOHN HENRY LAMB, JR., ALMA LAMB ROBERTS, and KAY LAMB LUNSFORD, Plaintiffs,
ALAN B. STYLES and ALAN B. STYLES LAND SURVEYING, PLLC, Defendants.
in the Court of Appeals 14 November 2018.
by Plaintiffs from order entered 13 November 2017 by Judge R.
Gregory Horne in Superior Court, Madison County, No. 17 CVS
& Bowman, PLLC, by Brian W. Sharpe, for
Parker, Warren, Anderson, Payne & McClellan, P.A., by
Robert B. Long, Jr. and Ronald K. Payne, for
Henry Lamb, Jr., Alma Lamb Roberts, and Kay Lamb Lunsford
("Plaintiffs" or "the Lambs") filed a
negligence action against Alan B. Styles Land Surveying, PLLC
and its owner Alan B. Styles (together,
"Defendants") on 12 June 2017. Defendants performed
a survey of a tract of real property adjoining
Plaintiffs' real property in 2007 that incorrectly
identified the boundary line between the properties. As a
result, Plaintiffs filed suit against their neighbors with
claims for quiet title, declaratory judgment, and trespass.
The trial court in that case entered an order declaring that
the area of real property in dispute was owned by Plaintiffs.
Plaintiffs now seek to recover the cost of the prior
litigation from Defendants, claiming that Defendants'
negligent performance of the survey necessitated the
litigation. The trial court entered an order on 13 November
2017 dismissing Plaintiffs' action for failure to state a
claim pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
Factual and Procedural History
were joint owners as tenants in common of 36.32 acres of real
property located in Madison County ("Lamb
property"). John Henry Lamb, Jr. received his interest
in the Lamb property in 2011 from his mother, Kay Lamb
Lunsford, who is the sister of Alma Lamb Roberts
(collectively, "the Lamb sisters"). The Lamb
sisters had received the Lamb property from their parents in
a deed dated 9 May 1996 and recorded in Deed Book 228, Page
37 in the Madison County Registry.
Lamb sisters contracted with Dry Ridge Land Surveying
("Dry Ridge") in 2008 to survey and draft a plat of
the Lamb property. During the course of the preparation of
the plat, Dry Ridge discovered several other plats associated
with adjoining property owners. Those plats were prepared by
Defendants in 2007, at the request of William Holt and Harold
Holt ("the Holts"). The plats Defendants had
prepared for the Holts incorrectly depicted 17.632 acres of
the Lamb property as being part of the Holts' property.
The erroneous plats made by Defendants for the Holts were
prepared based on statements made by the Holts to Defendants.
Those plats noted that the line separating Plaintiffs'
property from the Holts' property was drawn "per
parol evidence from William and Harold Holt."
Lamb sisters filed an action on or around 28 October 2009
against the Holts for quiet title, declaratory judgment, and
trespass. John Henry Lamb, Jr. was later added as a party to
the action. During the course of that litigation, the trial
court ordered a neutral surveyor to map the true boundary
line between the properties. The neutral surveyor filed his
survey with the trial court on 30 July 2013, matching the
description set forth in Deed Book 228, Page 37, which was
the deed that conveyed the property to the Lamb sisters by
their parents. The trial court ordered the neutral surveyor
to amend the filed survey. The amended map also showed that
17.15 acres of the disputed area was owned by the Lambs. The
trial court entered an order granting partial summary
judgment in favor of the Lambs, dismissing the Holts'
claims to the disputed 17.15 acres, and declaring the 17.15
acres of property was owned by the Lambs.
Lambs faced financial difficulties as a result of the cost of
litigation and filed a voluntary dismissal without prejudice
of the remaining claims against the Holts in December 2013.
The Holts voluntarily dismissed their counterclaims that had
been asserted against the Lambs on 6 December 2013. The North
Carolina Board of Examiners for Engineers and Surveyors
("the Board") issued a Notice of Contemplated Board
Action on 13 August 2014 charging Defendant Alan B. Styles
with "gross negligence, incompetence, and/or
misconduct." The Board received no response from
Defendant Alan B. Styles and entered a final decision and
order on 16 September 2014, requiring Defendant Alan B.
Styles to pay a penalty of $2, 000.00 and to earn a passing
grade in a professional ethics course within three months.
The Board based its action on evidence showing Defendant Alan
B. Styles "performed inaccurate or substandard surveys .
. . failed to make adequate investigation . . . failed to
report results of surveys in a clear and factual manner . . .
and failed to identify all reference sources."
Henry Lamb, Jr. also filed a new complaint against the Holts
on 30 November 2015 asserting claims for quiet title and
declaratory judgment. The trial court entered a memorandum of
judgment and order on 27 June 2016 divesting the Holts of any
right, title or ownership of the disputed property. The trial
court further ordered that any purported interest arising
from the disputed property be vested in fee simple in John
Henry Lamb, Jr. and Alma Lamb Roberts, as tenants in common.
filed a complaint on 12 June 2017 asserting a claim of
"Professional Negligence" against Defendants.
Defendants filed a motion to dismiss on 16 August 2016
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for
failure to state a claim upon which relief could be granted.
Defendants argued that a surveyor did not owe any duty of
care to adjoining property owners who had not contracted with
the surveyor or who did not rely on the survey in any way.
The trial court heard Defendants' motion to dismiss on 9
October 2017 and entered an order on 13 November 2017
granting Defendants' motion to dismiss. Plaintiffs
argue that the trial court erred in granting Defendants'
motion to dismiss for failure to state a claim pursuant to
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). We disagree.
The motion to dismiss under [Rule] 12(b)(6) tests the legal
sufficiency of the complaint. In ruling on the motion, the
allegations of the complaint must be viewed as admitted, and
on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be
Kohn v. Firsthealth Moore Reg'l Hosp., 229
N.C.App. 19, 21, 747 S.E2d 395, 397 (2013) (quoting
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979)).
It is well-settled that a plaintiff's claim is properly
dismissed under Rule 12(b)(6) when one of the following three
conditions is satisfied: (1) the complaint on its face
reveals that no law supports the claim; (2) the complaint on
its face reveals the absence of facts sufficient to make a
valid claim; or (3) the complaint discloses some fact that
necessarily defeats the claim.
Grich v. Mantelco, LLC, 228 N.C.App. 587,
589, 746 S.E.2d 316, 318 (2013) (citation omitted). This
Court reviews a trial court's ruling on a motion for Rule
12(b)(6) de novo. Id.
"While the concept of notice pleading is liberal in
nature, a complaint must nonetheless state enough to give the
substantive elements of a legally recognized claim or it may
be dismissed under Rule 12(b)(6)." Raritan River
Steel Co. v. Cherry, Bekaert & Holland, 322
N.C. 200, 205, 367 S.E.2d 609, 612 (1988). While
Plaintiffs' complaint alleged a claim for
"Professional Negligence," this Court must
determine whether the complaint states the substantive
elements of "some legal theory, whether properly labeled
or not." Harris v. NCNB, 85 N.C.App. 669, 670,
355 S.E.2d 838, 840 (1987) (citing Stanback, 297
N.C. 181, 254 S.E.2d 611). A claim of professional negligence
requires plaintiff establish: "(1) the nature of the
defendant's profession; (2) the defendant's duty to
conform to a certain standard of conduct; and (3) a breach of
the duty proximately caused injury to the plaintiffs."
Associated Indus. Contr'rs, Inc. v. Fleming
Eng'g, Inc., 162 N.C.App. 405, 413, 590 S.E.2d 866,
Duty of Care
is fundamental that actionable negligence is predicated on
the existence of a legal duty owed by the defendant to the
plaintiff." Derwort v. Polk Cty., 129 N.C.App.
789, 791, 501 S.E.2d 379, 381 (1998). This Court has not yet
addressed whether a surveyor owes a duty of care to adjoining
landowners when performing a survey and recording plats.
Plaintiffs argue several reasons why this Court should
establish a rule that "holds licensed surveyors
accountable for damages that foreseeably result from"
their conduct: (1) N.C. Gen. Stat. § 1-47(6) (2017)
demonstrated that the General Assembly has sought to subject
land surveyors to expanded civil liability, (2) N.C. Gen.
Stat. § 89C-2 and 21 N.C. A.C. 56.0701 create specific
standards of care by which a land surveyor's actions may
be judged, and (3) general negligence principles. Plaintiffs