Seely v. Borum & Associates, Inc.
Seely v. Borum & Associates, Inc.
Opinion of the Court
Defendant Borum & Associates, Inc. (“Borum”) provided surveying and engineering services to Equestrian Properties Limited Partnership (“Equestrian”) in connection with the development of the Polo Farms residential subdivision in Guilford County, North Carolina. When Equestrian failed to pay Borum for services rendered, Borum filed a Claim of Lien against the Polo Farms property under N.C. Gen. Stat. § 44A-12 and subsequently filed suit on 20 May 1992 to enforce its lien under N.C. Gen. Stat. § 44A-13. Named as defendants in the enforcement suit were Equestrian and all lienholders, mortgage holders and others with subordinate interests of record on the date the suit was filed.
Plaintiffs, Thomas J. and Laura R. Seely, purchased lot 251 in the Polo Farms subdivision in December 1992, after the enforcement suit was filed but before judgment was entered in that matter. Although plaintiffs had both record and actual notice of the lien and pending suit to execute the lien when they purchased lot 251, they did not intervene in the action. In August 1994, the trial court entered judgment awarding Borum $27,650.39 and ruling that the lien was enforceable against the Polo Farms property as of 1 February 1990. Thereafter, the Clerk of Guilford County Superior Court issued execution directing the Sheriff to sell lot 251 to satisfy the lien in accordance with the judgment.
We resolve this appeal by addressing only one of the several issues raised by the parties to this appeal: Did the trial court err by ruling that the Seelys could collaterally attack the judgment that Borum had obtained against Equestrian? Answer: Yes. The trial court erroneously concluded that the Borum judgment could be collaterally attacked by the Seelys.
In Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 239 S.E.2d 566 (1977), our Supreme Court noted:
The general rule is that a judgment may not be attacked by one who is a stranger to the action in which it was entered. However, this rule is not without exception. A judgment which is void, as opposed to being merely voidable or irregular, may be attacked at any time by anyone whose interests are adversely affected by it. For example, when a judgment operates as a lien upon real property, one who later acquires the property, even after entry of judgment, may move to vacate the judgment on the ground that it is void. One qualification to the above-stated exception is that the grounds which support an allegation that a judgment is void must appear upon the face of such judgment, or the plaintiff must allege facts which, if supported by competent evidence, would vitiate or nullify an otherwise apparently valid judgment.
Id. at 699, 239 S.E.2d at 572 (citations omitted).
In the subject case, the trial court allowed the Seelys to collaterally attack the Borum judgment because the Seelys “alleged facts in their complaint, which, if supported by competent evidence would vitiate or nullify an otherwise apparently valid judgment.” In reaching this conclusion, the trial court relied upon the Seelys’ allegations that the original judgment was void because it permitted Borum “to enforce the entire lien against one parcel out of all of the parcels subject to the lien” in contravention of N.C.G.S. § 44A-9. In essence, the
Moreover, we note that plaintiffs acquired title to the property with actual and constructive (record) notice that it was subject to a lien superior to the interest which they acquired. Therefore, they could have intervened in the lien suit pursuant to Rule 24 of the North Carolina Rules of Civil Procedure in order to protect their rights and interest in lot 251 and could have brought forward the same arguments and contentions that they espouse in this present action.
In light of our holding, we find it unnecessary to address other issues raised by the parties to this appeal.
For the foregoing reasons, the judgment of the trial court is,
Reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.