229 N.C. App. 347
N.C. Ct. App.2013Background
- Plaintiffs allege a fraudulent will was created between 11/29/2011 and 12/12/2011 by witnesses Carlyle and Singletary; Mrs. Gilmore then probated the fraudulent will with false oaths and affidavits.
- At the 2/2012 probate revocation hearing, witnesses testified falsely that the decedent approved the will.
- Plaintiffs moved to revoke probate and alleged fraud, conspiracy, NC RICO, and obstruction of justice (6/15/2012 amended complaint).
- Trial court granted 8/13/2012 Rule 12(b)(6) dismissal for failure to state a claim, citing Godette line of cases barring civil actions based on perjury.
- Court reviews de novo, accepts plaintiffs’ factual allegations as true for Rule 12(b)(6) purpose, and affirms dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether perjury-based conduct can support civil claims. | Gilmore argues perjury/conspiracy to commit perjury supports fraud/conspiracy claims. | Hicks Gilmore/Singletary argue perjury/subornation are criminal, not civil, offenses. | Claims barred; no civil action for perjury/subornation. |
| Whether Godette line precludes fraud/conspiracy claims here. | Gilmore asserts Henry distinctions avoid Godette bar. | Defendants rely on Godette controlling rule. | Claims dismissed under Godette line. |
| Whether obstruction of justice claim lies where perjury is involved. | Obstruction claim arises from alleged perjury by defendants. | Perjury-based obstruction not cognizable as civil claim. | Obstruction claim properly dismissed. |
| Whether NC RICO claim is adequately pleaded. | NC RICO alleged pattern of perjury/false statements. | Complaint fails to plead injury to business/property and pecuniary gain. | NC RICO claim dismissed for failure to plead essential elements. |
| Whether the court should take judicial notice of outside facts. | Plaintiffs seek judicial notice of subsequent charges and probate revocation. | Judicial notice improper for Rule 12(b)(6) motion; outside materials inadmissible. | Judicial notice denied. |
Key Cases Cited
- Godette v. Gaskill, 151 N.C. 52 (Supreme Court of North Carolina, 1909) (perjury civil action not recognized; protects final judgments)
- Brewer v. Carolina Coach Co., 253 N.C. 257 (Supreme Court of North Carolina, 1960) (no civil damages for false testimony; perjury not a tort)
- Gillikin v. Sprinkle, 254 N.C. 240 (Supreme Court of North Carolina, 1961) (perjured testimony not a tort; damages not recoverable)
- Strickland v. Hedrick, 194 N.C. App. 1 (Court of Appeals of North Carolina, 2008) (no civil action for perjury/subornation short of recognized torts)
- Hawkins v. Webster, 78 N.C. App. 589 (Court of Appeals of North Carolina, 1985) (no civil action for damages from perjury/conspiracy to commit perjury)