Petition for Writ of Certiorari — Everson v. Doughton (No. 07-1414)

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No. ©) =—--g. 71.4 14 MAY 12-2008

OFFICE OF THE CLERK

Su The

Supreme Court of the United States

DAVID K. EVERSON and PATRICIA M. EVERSON,

Petitioners,

RICHARD L. DOUGHTON, Individually and In His

Official Capacity as Justice of the Superior Court of

Allegany/Rockingham County, North Carolina,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID K. EVERSON

PATRICIA M. EVERSON

5100 Eldorado Pkwy.

Suite 102, No. 709

McKinney, Texas 75070

Telephone (214) 491-4102

QUESTIONS PRESENTED

Does judicial immunity apply when a judge forces

defendants to an action to convey their land

through an order for specific performance of a

void contract by law, and the land in question

was not legally owned by the defendants forced to

convey at all material times to the action, the le-

gal owners of the land in dispute were not joined

in the action and were the indispensable party

necessary to confer jurisdiction of the matter be-

fore the court thereby violating the Petitioners’

due process rights.

Whether a judge depriving individuals of their

real property ownership in the clear absence of

jurisdiction constitutes substantive and proce-

dural due process deprivation under the Four-

teenth Amendment to the U.S. Constitution.

Whether a judge violates the Due Process Clause

of the U.S. Constitution by entering an order that

is biased and partial to statutory laws and facts

in the matter before him, thereby depriving an

individual of the fundamental right to property

ownership.

PARTIES TO THE PROCEEDING

Pursuant to Rule 41.1(b), the caption contains

the names of all the parties to the proceeding below.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

TEXT OF CONSTITUTIONAL PROVISIONS,

FEDERAL STATUTES, RULES OF PROCE-

DURE, AND REGULATIONS INVOLVED

STATEMENT OF THE CASE

A. The Course of Proceedings

B. Statement of Facts

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW IS WRONG IN

RESPECT TO JUDICIAL IMMUNITY,

DEPRIVATION OF DUE PROCESS IN

REGARDS TO REAL PROPERTY OWN-

ERSHIP, AND FEDERAL RULE OF CIVIL

PROCEDURE 8 REQUIREMENTS

A. The Fourth Circuit’s Decision Conflicts

With the Decisions of Other United

States Courts of Appeals and This

Court as to Judicial Immunity

TABLE OF CONTENTS — Continued

Page

B. The Court of Appeals Findings Conflict

in that This Court and the Third Cir-

cuit Have Held When a Judge Lacks

Jurisdiction to Decide a Matter Sub-

stantive Due Process Has Been De-

prived When the Issue Concerns Real

Property Ownership

Il. THIS COURT HAS HELD THAT WHEN A

JUDGE’S DECISION IN A MATTER OF-

FENDS SOME PRINCIPLE OF JUSTICE

SO ROOTED IN THE TRADITIONS AND

CONSCIENCE OF OUR PEOPLE AS TO

BE RANKED AS FUNDAMENTAL SUCH

DECISIONS VIOLATE THE DUE PROC-

ESS CLAUSE OF THE U.S. CONSTITU-

INDEX TO APPENDIX

A. Fourth Circuit Court of Appeals Unpub-

lished Opinion (Filed January 23, 2008) ....App. 1

B. United States District Court for the Mid-

dle District of North Carolina Order (Filed

June 08, 2007)

United States District Court for the Mid-

dle District of North Carolina Judgment

(Filed June 08, 2007)

TABLE OF CONTENTS -— Continued

Page

United States District Court for the Mid-

dle District of North Carolina Magistrate's

Recommendation (Filed April 18, 2007)......App. 8

Fourth Circuit Court Order on Petition for

Rehearing En Banc

Stanley Deed of the Subject Property

Petitioners Everson General Warranty

Deed of the Subject Property

TABLE OF AUTHORITIES

CASES:

Allen v. Wright, 468 U.S. 737 (1984)

Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988)

Board of Regents v. Roth, 408 U.S. 564 (1972)

Boddie v. Connecticut, 104 U.S. 371 (1971)

Boyanowski v. Capital Area Intermediate Unit,

215 F.3d 396, 2000 WL 768775 (3d Cir. 2000)

Bradley v. Fisher, 13 Wall. 335 (1872)

Brennan v. Stewart, 834 F.2d 1248 (5th Cir.

Chicago v. Atchison T: & S.F-R. Co., 357 US.

77, 78S. Ct. 1063 (1958)

Conley v. Gibson, 355 U.S. 41 (1957)

Collins v. City of Harker Heights, 503 U.S. 115

(1992)

Consolidated Water Co. v. City of San Diego, 93

F. 849, 35 C.C.A. 631 (C.C.A.9 (Cal.) Feb. 06,

1899) (No. 460)

Davis v. Monroe County Board of Education,

526 U.S. 629, 119 S. Ct. 1661 (1999)

DeBlascio v. Zoning Bd. of Adjustment, 53 F.3d

RE IID cc ésira asks ecnavekadesndeonessebsbsneionsanes

22,37

31, 33

TABLE OF AUTHORITIES — Continued

Page

District of Columbia Court of Appeals uv.

Feldman, 460 U.S. 462 (1983) 3, 5, 12, 16

Estelle v. Gamble, 429 U.S. 97 (1976)

Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928)

Gaw v. Higham, 267 F.2d 355 (6th Cir. 1959)

Hafer v. Melo, 502 U.S. 21 (1999)

Haines v. Kerner, 404 U.S. 519 (1972)

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct.

ET 5 Fee Bik ns Se OT ivviivcviceciscisicicssevsacecass. 15

Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002)

Homar v. Gilbert, 63 F. Supp. 2d 559 (M.D. Pa.

Independent Enters., Inc. v. Pittsburgh Water

and Sewer Auth., 103 F.3d 1165 (3d Cir.

In re Murchison, 349 U.S. 133, 75 S. Ct. 623

(1955)

Int'l Longshoremen’s Assn. v. Davis, 476 U.S.

380 (1986)

John Corp. v. City of Houston, 214 F.3d 573

I ica aac ah ea 29

Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006)

Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982)

Lugar v. Edmonsen Oil Co., 457 U.S. 922

Vill

TABLE OF AUTHORITIES — Continued

Mallette v. Arlington County Employees’ Supp.

Net. Sys. II, 91 F.3d 630 (4th Cir. 1996)

Midnight Sessions, Ltd. v. City of Philadelphia,

945 F.2d 667 (3d Cir. 1991)

Monroe v. Pape, 365 U.S. 167 (1961) «0... eee 13

Mulane v. Central Hanover Tr. Co., 399 U.S.

306 (1950)

Nicholas v. Pennsylvania State University, 227

F.3d 133 (3d Cir. 2000)

Patterson v. New York, 482 U.S. 197 (1977)

Piper v. Pearson, 2 Gray 120 (Mass. 1854)

Rankin v. Howard, 633 F.2d 844 (1980)

Reich v. Beharry, 883 F.2d 239 (3d Cir. 1989)

Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923) 3,5, 12, 16

Scheuer v. Rhodes, 416 U.S. 232 (1974)................cee 13

S.C. State Ports Auth. v. Fed. Mar. Comm’n,

243 F.3d 165 (4th Cir. 2001)

Stroud v. Benson, 254 F.2d 488 (4th Cir. 1958).........2!

Stump v. Sparkman, 435 U.S. 349 (1978)

Sutton v. United Airlines, Inc., 527 U.S. 471,

119 S. Ct. 2139 (1999)

TABLE OF AUTHORITIES — Continued

Swierkiewicz v. Sorema N.A., 5384 U.S. 506

(2002)

Trimble v. Asarco, Inc., 232 F.3d 946 (8th Cir.

United States v. Gaubert, 499 U.S. 315 (1991)

Valley Forge Christian College v. Americans

United for Separation of Church and State,

as Pe GER, PS CRIs ckcsersccscescovcesccsescestoecseonecces 27

Whitney v. California, 274 U.S. 357, 47 S. Ct.

a ME, BE A RUPE 9D... sccnscroccovcsoscencsesnssdecaescs 33

Wilson v. Layne, 526 U.S. 603 (1999)

Windsor v. McVeigh, 93 U.S. 274 (1876)

Woodwind Estates, Lid. v. Gretkowski, 205 F.3d

118 (3d Cir. 2000)

NORTH CAROLINA CASES:

Card v. Finch, 142 N.C. 153, 88 S.E. 1009

(1906)

Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d

RS a ss ss cucu nebaanbaubesnvanss 13

Carter v. Roundtree, 109 N.C. 29, 13 S.E. 716

(1891)

Clark v. Carolina Homes, 189 N.C. 703, 128

ED ns vuussonesdsascacesavevacecenecs sacconeind ..26

Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802

(1936)

TABLE OF AUTHORITIES — Continued

Estate of Apple v. Commercial Courier Express,

Inc., 359 N.C. 632, 613 S.E.2d 688 (2005)

Flowers v. King, 145 N.C. 234, 58 S.E. 1074

(1907)

Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223

5 Rear ee ee em ee PM MRO yey OME NO OuamaD

Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d

460 (1958)

Mills v. Richardson, 240 N.C. 187, 81 S.E.2d

409 (1954)

Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26

Rackley v. Roberts, 147 N.C. 201, 60 S.E. 975

(1908)

Ce NSTITUTIONAL PROVISIONS:

U.S. Constitution, Amendment XI...

U.S. Constitution, Amendment XIV passim

OF te CHAM, FCI Te Ue vin vncvchecessvccscncccccassavsccesss 3, 5,6

STATUTES, RULES, AND REGULATIONS:

42 U.S.C. § 1983 2, 3, 5, 6, 29

5 Charles Allen Wright and Arthur R. Miller,

Federal Practice and Procedure: Civil 3d

§ 1215, at 173-74 (3d ed. 2004)

TABLE OF AUTHORITIES — Continued

Page

Federal Rule of Civil Procedure 8(a)................ 4,19, 20

Federal Rule of Civil Procedure 12(b)(6)....... 6. 6 7. 12

Federal Rule of Civil Procedure 12(b)(1) 4,6, 7,12

N.C. STATUTES:

N.C. Gen. Stat. $ 22-2 passim

PETITION FOR WRIT OF CERTIORARI

David K. Everson and Patricia M. Everson re-

spectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fourth Circuit in this case.

OPINIONS BELOW

The unpublished opinion of the Court of Appeals

is reported at No. 07-1846 (4th Cir. 2008) and is found

in the Appendix to the Petition (“App.”) at App. A.

The Order of the Court of Appeals (4th Cir.)

denying the Petition for Rehearing En Banc is found

at App. E.

The District Court’s order and judgment is not

reported and is found at App. B and C.

The District Court Magistrate’s Recommendation

is not reported and is found at App. D.

’

JURISDICTION

The Court of Appeals entered its judgment on

January 23, 2008. Petition for rehearing was denied

on February 26, 2008 (App. E).

This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

TEXT OF CONSTITUTIONAL PROVISIONS,

FEDERAL STATUTES, RULES OF

PROCEDURE AND REGULATIONS INVOLVED

This case concerns violations of Section 1 of

the Fourteenth Amendment to the U.S. Consti-

tution which provides in relevant part, “All

persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of the citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property without due process

of law; nor deny to any person within its jurisdiction

equal protection of the laws.”

a. Judicial relief U.S. Code 42 § 1983. Any

person who under color of any statute, ordinance,

regulation, custom, or usage, or any State of Ter-

ritory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

proceeding for redress, except that for any action

brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a de-

claratory decree was violated or declaratory relief

was unavailable. ...

b. Eleventh Amendment. The Eleventh

Amendment does not bar suits seeking damages

from government officials in their individual ca-

pacities. Hafer v. Melo, 502 U.S. 21 (1991). We

hold that state officials, sued in their individual

capacities are “persons” within the meaning of

1983. The Eleventh Amendment does not bar

such suits, nor are state officers absolutely im-

mune from personal liability under 1983 solely by

virtue of the “official” nature of their acts. [Hafer,

502 U.S. at 30].

c. Article III § 2 Jurisdiction. Extends juris-

diction to cases arising under the U.S. Constitu-

tion.

Rooker-Feldman Doctrine:

Under Feldman, the relevant question is whether

the relief sought by the federal plaintiff is actually

challenging a prior adjudication. See Feldman, 460

U.S. at 483-84 (considering “(t]he difference between

seeking review in a federal district court of a state

court’s final judgment in a bar admission matter and

challenging the validity of a state bar admission

rule”); Noel, 341 F.3d at 1163 (“it is forbidden de facto

appeal under Rooker-Feldman when the plaintiff in a

federal district court complains of a legal wrong

allegedly committed by the state court and seeks

relief from the judgment of that court.”). See also

Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006) for

similar fact pattern in a 42 U.S.C. § 1983 action

ruling Rooker-Feldman inapplicable.

Rule 8 of the Federal Rules of Civil Procedure

provides in pertinent part:

(a) Claims for Relief. A pleading which sets

forth a claim for relief... shall contain. . .

(2) ashort plain statement of the claim showing

the pleader is entitied to relief... .

(b) Defenses; Forms of Denials. A party shall

state in short and plain terms the party’s de-

fenses to each claim asserted, and shall admit or

deny the averments upon which the adverse

party relies.

preceding pleading, a party shall set forth af-

firmatively ... any ... matter constituting an

avoidance or an affirmative defense. * * *

Rule 12 of the Federal Rules of Civil Procedure

provides in pertinent part:

(a) How Presented. Every defense, in law or

fact, to a claim for relief in any pleading... shall

be asserted in the responsive pleading thereto if

one is required, except that the following de-

fenses may at the option of the pleader be made

by motion: ... (1) lack of subject matter jurisdic-

tion... ** * (6) failure to state a claim upon

which relief can be granted... . * * *

(b) Rule 12(b)(1) Dismissal. If a plaintiff has

pleaded a federal cause of action, it cannot be dis-

missed under Fed. R. Civ. P. 12(b)(1) unless the

facts as pleaded are “so implausible, patently

without merit, or insubstantial that they fail[]

for jurisdictional purposes.” Trimble v. Asarco,

Inc., 232 F.3d 946, 953 (8th Cir. 2002).

STATEMENT OF THE CASE

This case concerns substantive and procedural

due process deprivation by a state court judge decid-

ing a matter concerning claims of breach of contract

for real property in the absence of jurisdiction, the

indispensable party not joined in the action nor

noticed thereof, the state court plaintiffs lacking

standing to bring the claim of breach of contract, and

the state court judge ultimately entering an order for

specific performance of a contract void ab initio

resulting in the petitioners being forced to convey

their land to the state court plaintiffs thereby being

deprived of their due process rights under the Four-

teenth Amendment of the U.S. Constitution.

Petitioners, David K. Everson and Patricia M.

Everson filed a 42 U.S.C. § 1983, Article III § 2 suit

against Respondent, Richard L. Doughton, Superior

Court Justice, for claims he forced the Eversons to

convey their Jand in the clear absence of all jurisdic-

tion and by demonstrating gross partiality and preju-

dice. The U.S. District Court dismissed the complaint

under Federal Rules of Civil Procedure 12(b)(6) and

12(b)(1) finding Doughton was protected by absolute

judicial immunity, and the claim was barred by the

Eleventh Amendment and the Rooker-Feldman

Doctrine. App. B and C. The Fourth Circuit affirmed

by unpublished opinion. App. A. Petitioners filed a

Petition for Rehearing En Banc. The Fourth Circuit

denied the petition. App. E.

A. The Course of Proceedings

On November 26, 2006, Petitioners, David K.

Everson and Patricia M. Everson filed a complaint in

the United States District Court of the Middle Dis-

trict of North Carolina against the Respondent,

Richard L. Doughton, Superior Court Justice pursu-

ant to 42 U.S.C. § 1983 and Article III § 2 for viola-

tions of certain protections guaranteed to the

Eversons by the Fourteenth Amendment of the F'ed-

eral Constitution, by Doughton under color of law in

his official capacity and individually.

On January 03, 2007, Petitioners filed their

amended complaint adding additional claims for

relief. Doughton filed a motion to dismiss pursuant to

Fed. R. Civ. P. 12(6)(6) and 12(6)(1) for failure to state

a claim upon which relief can be granted and for lack

of jurisdiction.

The district court magistrate recommended

granting Doughton’s motion to dismiss. App. D. The

district court adopted the magistrate’s recommenda-

tion and dismissed the case. App. B and C. On appeal

the Fourth Circuit affirmed the order and judgment

by unpublished opinion. App. A. The Fourth Circuit’s

order is contrary to well-settled law as this Court has

held as well as other Circuit Courts. The Fourth

Circuit’s unpublished opinion does not constitute

binding precedent. The Court of Appeals denied

petitioners’ Petition for Rehearing En Banc on Febru-

ary 26, 2008. App. E.

B. Statement of Facts

Because this case was decided on a motion under

Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1),

this Statement recites the facts as alleged within the

complaint, which must be taken as true for purposes

of these proceedings, as they should have been in the

courts below. Sutton v. United Airlines, Inc., 527 U.S.

471, 119 S. Ct. 2139, 2143 (1999) (citing United States

v. Gaubert, 499 U.S. 315, 327 (1991)); Davis v. Monroe

County Board of Education, 526 U.S. 629, 119 S. Ct.

1661, 16656 (1999).

Judge Doughton presided over a state court civil

proceeding wherein the state court plaintiffs, Charles

S. Honacher and wife, Catherine M. Honacher, (here-

inafter referred to as the “Honachers”) filed a com-

plaint against the Petitioners herein David K.

Everson and wife, Patricia M. Everson (hereinafter

referred to as the “Eversons”) alleging breach of

contract of a document titled “addendum” in conjunc-

tion with other alleged claims. (See Pleading No. 6,

Am. Compl., Ex. 4). The Honachers were represented

by counsel at the trial that ensued in the matter, the

Eversons were pro se. The “addendum” was pur-

ported to be the “addendum” to a contract for land

between the Eversons and the legal owners of the

land, John David Stanley, Jr., Elizabeth Stanley

Searce, and Alan B. Stanley (hereinafter referred to

as the “Stanleys”). (See Pleading No. 6, Am. Compl.,

Ex. 1).

The crux of the entire case was the allegation by

the Honachers they and the Eversons executed an

“addendum” to the Everson/Stanley contract, and this

“addendum” consiituted an enforceable contract by

law.’ The fatal flaw of the Honachers’ claims was the

Stanleys never executed any “addendum” to the

Everson/Stanley contract, and as they were the party

to be charged therewith pursuant to N.C. Gen. Stat.

§ 22-2, of which the Eversons pled as a bar to the

Honachers’ claim for breach of contract,” the Honach-

ers lacked standing to bring the action, and the state

court lacked jurisdiction to decide the matter’ because

' The Honachers admitted with their testimony at trial the

“addendum” was not a legally binding enforceable contract by

lew.

* It was also proven at trial, the “addendum” violated N.C.

Gen. Stat. § 22-2 of which the Eversons pled as a bar to the

Honachers’ claims for breach of contract “addendum.”

* It was proven at trial through testimony and submitted

evidence in order for the “addendum” to be enforceable by law

the Stanleys would have had to execute the document thereby

agreeing to its terms and conditions because they were the legal,

lawful owners of the subject property, thereby the party to be

charged therewith, establishing by law they were an indispen-

sable party to the action, and the Everson/Stanley contract

contained termed conditions concerning any changes, deletions,

or additions to the contract which required the Stanleys’ written

consent of which never existed.

the Stanleys were the indispensable party and they

were never joined as a party to the action.

The Honachers’ complaint contained allegations

the document “addendum” “contemplated” the Ever-

sons would exercise their right of first refusal on the

Stanley property for the benefit of the Honachers.

(See Pleading No. 6, Am. Compl., Ex. 4, 4 23-28).

However, it was proven by the Honachers testimonies

and evidence this allegation was purely erroneous.

On its face the “addendum” fails to state a right of

first refusal (See Pleading No. 6, Am. Compl., Ex. 1),

and the Everson/Stanley contract contained a term

condition in { 18 setting forth the following:

“This contract may not be assigned without

the written consent of all parties, but if as-

signed by agreement, then the contract shall

be binding on the assignee and his heirs and

successors.”

(See Pleading No. 6, Am. Compl., Ex. 2, { 18).

The Stanleys never agreed to any assignment of

the Everson/Stanley contract as was proven at the

trial. The Everson/Stanley contract contained another

term condition in { 21 which set forth the following:

“This contract contains the entire agreement

of the’ parties and there are no representa-

tions, inducements, or other provisions other

than those expressed hevein. All changes,

additions or deletions hereto must be in writ-

ing and signed by all parties. Nothing con-

tained herein shall alter any agreement

between a REALTOR or broker and Seller or

Buyer as contained in any listing agreement

buyer agency agreement, or any other agency

agreement between them.”

(See Pleading No. 6, Am. Compl., Ex. 2, { 21).

Within the Honachers’ complaint, the description

of the land in dispute, is only identified as being “the

Stanley property.” (See Pleading No. 6, Am. Compl.,

Ex. 4). The Stanley Deed description of the land as

registered with Rockingham County Register of

Deeds, North Carolina, is recorded in Book 830, Page

1292. App. F. The Eversons’ General Warranty Deed

is recorded in Book 1158, Page 2049, of the Rocking-

ham County Register of Deeds. App. G. The Eversons

did not own the land at all material times to the

Honachers’ complaint as pursuant to the Eversons’

General Warranty Deed which was executed by the

Stanleys and their prospective husband and wife on

the dates of May 21, 2003, June 02, 2003 and June

03, 2003 (App. F) proves, thereby establishing by law,

in order for the action to be heard and decided by a

court of general jurisdiction, the Stanleys must be

joined in the action, and noticed of the action, as they

were the indispensable party who held an interest in

the outcome.* Chicago v. Atchison, T. & S.F-R. Co.,

357 U.S. 77, 78S. Ct. 1063 (1958).

* The Honachers admitted with their testimony at trial the

Stanleys were the lawful owners of the land and admitted

further they did not name them as defendants in the action

(Continued on following page)

The Honachers admitted with their testimonies

the Stanleys never signed any document agreeing to

convey their land to the Honachers, nor did their

lawful authorized agent. They admitted the “adden-

dum” was not a binding, enforceable contract by law,

and admitted the Stanleys never signed any docu-

ment agreeing to a conveyance of their land to the

Honachers by any means. (See Pleading No. 6, Am.

Compl., Ex. 3, 5, 6, 7).

Judge Doughton’s Issue One to the jury was:

“Did the plaintiffs and defendants enter into

a contract dated, April 21, 2003 for the pur-

chase and sale of 58.71 acres of land de-

scribed in Deed Book 830, Page 1292, of the

Rockingham County Registry.”

(See Pleading No. 6, Am. Compl., Ex. 8).

The Deed reference within Issue One above is

that of the Stanleys’ land and Deed, and the question

concerns the Eversons and Honachers entering into a

contract to sell and purchase the Stanleys’ land

without the consent of the Stanleys. The document

purported to be a contract titled “addendum” did not

contain a description of the land, a price, a seller, or

any consideration and grossly violates N.C. Gen. Stat.

§ 22-2.

because their argument was not with the Stanleys but the

Eversons.

With all the prima facie evidence before Dough-

ton, it was glaringly apparent he demonstrated gross

partiality and prejudice to the facts and law in the

matter. It was also apparent he lacked jurisdiction to

decide the claim for breach of contract and specific

performance as it was factually proven the Eversons

did not own the land, the subject of the dispute.

The Eversons’ complaint against Doughton

contained facts well proven by submitted competent

evidence which included court reporter transcripts of

testimony and hearings. Also included were copies of

the Stanleys’ Deed and Eversons’ Deed as well as the

document “addendum” which all served as proof the

claims alleged by the Eversons were of merit and

justiciable that Doughton lacked jurisdiction to

determine the matter, demonstrated gross partiality

and prejudice, and did not follow the law as written

and defined regarding contracts for the conveyance of

land in North Carolina thereby violating the Ever-

sons’ Constitutional rights

The Eversons named Doughton in his individual

capacity and in his official capacity.

Doughton filed a motion to dismiss on February

01, 2007, as his answer to the complaint pursuant to

Fed. R. Civ. P. 12(b)(1) and 12(6)(6) citing as a bar to

the Eversons claims absolute judicial immunity, the

Eleventh Amendment and the Rooker-Feldman

Doctrine.

The Eversons timely filed their opposition and

memorandum to Doughton’s motion to dismiss on

February 12, 2007 citing case law Hafer v. Melo, 502

U.S. 21, 28 (1999) (in 1871 Congress enacted § 1983

“to Enforce Provisions of the Fourteenth Amendment

against those who carry a badge of authority of a

State and represent it in some capacity, whether they

act in accordance with their authority or misuse it”),

quoting Scheuer v. Rhodes, 416 U.S. 232, 243 (1974);

quoting Monroe v. Pape, 365 U.S. 167, 171-72 (1961),

and citing Lugar v. Edmonson Oil Co., 457 U.S. 922

(1982). Eversons presented argument Doughton acted

completely partial, lacked jurisdiction in that a

person cannot legally convey the land owned by

another without the land owners lawful consent or

lawful authorization, and a contract for real property

will not be enforced unless it meets the prerequisite

requirements of N.C. Gen. Stat. $ 22-2 one of which is

a description of the land, the subject matter thereof,

either certain in itself, or capable of being rendered to

certainty by reference to something extrinsic to which

the deed, contract, or memorandum refers.” Carlton v.

Anderson, 276 N.C. 564, 173 S.E.2d 783 (1970). It was

absolute fact the document alleged to be a contract for

the land by law titled “addendum” did not contain

any description of the land nor anything extrinsic of

which it could be rendered to certainty. (See Pleading

No. 6, Am. Compl., Ex. 1).

Further, the Eversons argued the Honachers

lacked standing to bring their claim for breach of

contract because the Stanleys never executed any

document with the Honachers agreeing to convey

their land to them establishing Doughton lacked

jurisdiction to decide the matter. Estate of Apple v.

Commercial Courier Express, Inc., 359 N.C. 632, 613

S.E.2d 688 (2005).

On April 18, 2007, the district court Magistrate

recommended Doughton’s motion to dismiss finding

the Eversons claims to be “utterly remote from ‘clear

absence of all jurisdiction’ required for a forfeiture of

judicial immunity.” The Magistrate continued to

state, “to the extent Plaintiffs ask for declaratory

judgment, they essentially ask this Court to sit as a

court of error with respect to a state court civil trial.

This notion reveals a fundamental misunderstanding

of the relationship between the federal and state

court.” “Plaintiffs’ action against Judge Doughton in

his official capacity fares no better. Such an action is

in essence an action against the State of North Caro-

lina. However, the Eleventh Amendment generally

bars suits directly against states or its agencies,

regardless of the nature of the relief sought.”

The Eversons were not asking the district court

to sit as a court of error with respect to a state court

trial because the Eversons had exhausted all state

court remedies. The N.C. Court of Appeals dismissed

the Eversons’ appeal citing lack of jurisdiction within

the Eversons’ notice of appeal. The N.C. Supreme

Court denied the Eversons’ petition for writ of certio-

rari without any opinion. The only avenue left for the

Eversons to pursue was suing Doughton in the fed-

eral court because he violated substantial and fun-

damental rights of the Eversons under the US.

Constitution.

The Eversons timely filed their objections to the

Magistrate’s recommendation on April 30, 2007,

arguing “qualified immunity serves as a defense to

§ 1983 claims for government officials ‘insofar’ as

their conduct does not violate clearly established

statutory or constitutional rights which a reasonable

person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396

(1982). “The relevant dispositive inquiry in determin-

ing whether a right is clearly established is whether

it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”

Wilson v. Layne, 526 U.S. 603, 615 (1999).

In the case at bar, the Eversons showed unto the

court Doughton’s actions were unlawful and clearly

violated the Eversons’ Constitutional rights in that he

ruled completely contrary to N.C. Gen. Stat. $ 22-2,

well-settled law, and in the clear absence of jurisdic-

tion.

Chief Judge Beaty adopted and affirmed the

Magistrate’s recommendation granting Doughton’s

motion to dismiss.

The Eversons timely filed a motion for new trial

which was denied on August 10, 2007. Eversons

timely filed their Notice of Appeal with the U.S. Court

of Appeals for the Fourth Circuit on August 28, 2007.

The Eversons argued within their appeal brief

Doughton lacked jurisdiction to determine the state

court matter because they were not the lawful owners

of the land at all material times to the Honachers’

complaint; the Stanleys were required to be joined in

the action and noticed of the action as the issues

concerned their land; the “addendum” violated N.C.

Gen. Stat. $ 22-2, did not contain any description of

the land, no price, no seller, no consideration; specific

performance was impossible to perform by law and

fact; the Honachers lacked standing to bring the

action; Doughton demonstrated gross partiality and

prejudice and failed to follow the law. Based on all of

the above facts, statutory authority and law, Ever-

sons argued Doughton violated their Constitutional

rights and law thereby establishing the Eleventh

Amendment does not bar their damage claims, the

Rooker-Feldman Doctrine does not bar their claims,

and they presented a meritorious, justiciable claim by

law against Doughton and the district court’s order

and judgment should be vacated or reversed by law.

The Fourth Circuit affirmed Judge Beaty’s judg-

ment granting dismissal to Doughton in an unpub-

lished opinion. The Fourth Circuit did acknowledge

that the Eversons’ correctly noted that the Eleventh

Amendment dves not bar suits seeking damages from

government officials in their individual capacities

citing S.C. State Ports Auth. v. Fed. Mar. Comm’n,

243 F.3d 165, 170 (4th Cir. 2001). They went on to

state this principle does not aid the Eversons because

the only conduct the Eversons challenge is Dough-

ton’s disposition of state court proceedings finding the

district court dismissing the case citing the Eversons’

claims are barred by the Eleventh Amendment is

appropriate. Such a ruling is purely erroneous in that

the Eversons’ claims against Doughton set forth and

proved with competent evidence Doughton deter-

mined an action in the clear absence of all jurisdic-

tion, violated law and statutory authority, and

demonstrated gross partiality thereby violating the

Eversons’ Constitutional rights. The evidence was

overwhelming in support of the Eversons’ claims and

this case is one in which a superior court indge

usurped the law, and demonstrated partiality to the

Eversons when he knew it is his duty to follow the

law, and chose to force the Eversons to convey their

land to the Honachers when at all times he was fully

cognizant the facts and law proved he lacked jurisdic-

tion to determine the matter and specific performance

was impossible to perform. The courts cannot offer

protection to a judge who clearly violates the law and

substantive due process under the Fourteenth

Amendment to the U.S. Constitution and lacks juris-

diction to decide the matter before him as Judge

Doughton did in the case at har.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW IS WRONG IN

RESPECT TO JUDICIAL IMMUNITY,

DEPRIVATION OF DUE PROCESS IN

REGARDS TO REAL PROPERTY OWN-

ERSHIP, AND FEDERAL RULE OF CIVIL

PROCEDURE 8 REQUIREMENTS.

Review is warranted because the ruling below is

wrong on the merits. The Court of Appeals found the

Eversons’ complaint against Doughton fails because

the Eversons’ only assertion is that Doughton

wrongly decided a state court action and as a judge on

the state superior court, Doughton had authority to

consider that action and he is immune from suits

arising from those acts. The Court of Appeals erred in

(A) finding the only assertions by the Eversons is

Doughton wrongly decided the state court action; (B)

Doughton had authority to consider the state court

action; and (C) Doughton is immune from suits aris-

ing from those acts. Each error independently re-

quires reversal.

Petitioners allege Judge Doughton did not satisfy

the two-prong test this Court has established is

necessary for a judge to be granted judicial immunity

which are:

1) Does the court have subject matter jurisdic-

tion; and

2) Is the act a judicial act.

Judge Doughton violated the Eversons’ Four-

teenth Amendment rights by forcing the Eversons to

convey their land through an order for specific per-

formance thereof, in the absence of jurisdiction for the

following reasons as clearly stated and alleged within

their complaint:

1) the legal, lawful, owners of the land in dis-

pute were not joined in the action and it was a

requirement by law, for they were the indispen-

sable party;

2) the legal, lawful, owners of the land in dis-

pute never executed any document agreeing or

otherwise, to convey their land to the state court

plaintiffs;

3) the document purported to be a contract by

law for the conveyance of land titled, “adden-

dum”, was void ab initio in that it failed to con-

tain any of the necessary prerequisites pursuant

to N.C. Gen. Stat. $ 22-2; and

4) the state court plaintiffs lacked standing to

bring: the claim for breach of contract, “adden-

dum.”

The above establishes Judge Doughton acted in

the absence of jurisdiction, thereby establishing the

Eversons did not appear before a judge performing

his usual functions, but appeared before an individ-

ual who deprived the Eversons of their due process

rights under the Fourteenth Amendment to the US.

Constitution. The Court of Appeals could not have

found the Eversons’ only assertions against Doughton

was he wrongly decided a state court action based on

the factual allegations alleged and the claims for

relief within the complaint. Further, Rule 8(a) of the

Federal Rules of Civil Procedure requires a complaint

to include “(1) a short plain statement of the grounds

upon which the court’s jurisdiction depends... (2) a

short plain statement of the claim showing that the

pleader is: entitled to relief, and (3) a demand for

judgment for the relief the pleader seeks.” Fed. R.

Civ. P. 8(a).

This Court has reaffirmed that Rule 8(a)’s “sim-

plified notice pleading standard” merely requires a

statement that “give[s] the defendant fair notice of

what the plaintiff’s claim is and the grounds upon

which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512 (2002) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)). “[T]his notice function ... represents

the very core of the pleading process under the fed-

eral rules.” 5 Charles Allen Wright and Arthur R.

Miller, Federal -Practice and Procedure: Civil 3d

§ 1215, at 173-74 (3d ed. 2004).

Under the notice pleading standards of Rule 8,

the “long-standing practice is to construe pro se

pleadings liberally,” Hill v. Braxton, 277 F.3d 701, 707

(4th Cir. 2002). This Court has held that pro se liti-

gants “are held to a lesser pleading standard than

other parties.” Estelle v. Gamble, 429 U.S. 97, 106

(1976). (Pro se pleadings are to be liberally con-

strued).

This Court has held:

Rule 8(f) provides that “[all] pleadings shall be so

construed as to do substantial justice.” “We fre-

quently have stated that pro se pleadings are to

be given a liberal construction. E.g. Haines uv.

Kerner, 404 U.S. 519 (1972). If these pronounce-

ments have any meaning, they must protect the

pro se litigant who simply does not properly de-

nominate her motion or pleading in the terms

used in the Federal Rules.”

A. The Fourth Circuit’s Decision conflicts

with the decisions of other United

States Courts of Appeals and This

Court as to Judicial Immunity.

The Fourth Circuit’s decision directly conflicts

with relevant decisions of this Court concerning a

judge deciding a case in the clear absence of all

jurisdiction. In the case at bar, Judge Doughton acted

in the clear absence of all jurisdiction, therefore

judicial immunity cannot apply as to Doughton. See

Bradley v. Fisher, 13 Wall. 335, 351 (1872); Stump v.

Sparkman, 435 U.S. at 357.

This Court has stated:

“In determining whether an action is “judicial”,

we consider the nature of the act and whether it

is a “function normally performed by a judge.”

Stump v. Sparkman, 435 U.S. at 362.

In the case Rankin v. Howard, 633 F.2d 844

(1980) this Court has stated:

“When a judge knows he lacks jurisdiction, or

acts in the face of clearly valid statutes expressly

depriving him of jurisdiction, judicially immunity

is lost. Id.

Doughton knew he lacked jurisdiction to decide

the case at. bar based on all evidence, testimony, and

facts before him. This case is one in which a trial

court judge usurped the law, entered a partial ruling

in violation of statutory law thereby depriving the

Eversons of due process by forcing them to convey

their land when the action before Doughton did not

concern the Eversons’ land but individuals who were

not joined in the action nor noticed of the action and

were the indispensable party as the complaint itself

of the state court plaintiffs serves as proof as well as

the description of the land the subject of the state

court dispute. (See Pleading No. 6, Am. Compl., Ex. 4,

q 8, 9 12, 1 23-28).

Doughton acted with no discretion in the matter

because he acted absent all jurisdiction and discretion

is incident to jurisdiction. See Piper v. Pearson, 2

Gray 120 (Mass. 1854), cited in Bradley v. Fisher,

supra.

A very important factor in the present case is the

Stanleys were never noticed of the action concerning

their property nor joined in the action. One element

of the fact Doughton did not acquire jurisdiction to

hear the matter is it was necessary and required the

Stanleys receive notice and be joined as parties to the

action because they held a “direct and substantial

personal interest in the outcome” for it was legally

their land in dispute establishing they were the

indispensable party to the action, and given the fact

it was their land of which the state court controversy

concerned, they were not a‘forded the opportunity to

be heard, for they were never noticed of the action nor

joined in the action. See Boddie v. Connecticut, 104

U.S. 371, 380 (1971) where this Court held:

“Early in our jurisprudence, this Court

voiced the doctrine that “[w]henever one is

assailed in his person or his property, there

he may defend,” Windsor v. McVeigh, 93 U.S.

274, 277 (1876). Although, “[mJany contro-

versies have raged about the cryptic and ab-

stract words of the Due Process Clause,” as

Mr. Justice Jackson wrote for the Court in

Mulane v. Central Hanover Tr. Co., 399 U.S.

306 (1950), “there can be no doubt that, at a

minimum, they require that deprivation of

life, liberty or property by adjudication be

preceded by notice and opportunity or hear-

ing appropriate to the nature of the case.” id.

399 U.S. at 313.

This Court has stated:

“An indispensable party is one who not only

has an interest in the controversy but an in-

terest of such a nature that a final decree

cannot be made without either effecting that

interest or leaving the controversy in such a

condition that its final determination may be

wholly inconsistent with equity and good

conscience.” Gaw v. Higham, 267 F.2d 355,

357 (6th Cir. 1959), cert. denied, 360 U.S.

933, 79 S. Ct. 1453, 3 L. Ed. 2d 1546.

In the case Consolidated Water Co. v. City of San

Diego, 93 F. 849, 35 C.C.A. 631 (C.C.A.9 (Cal.) Feb.

06, 1899) (No. 460), suit was instituted by the mort-

gagee of a water company to enjoin the enforcement,

fixing the rate for water furnished by it, on the

ground that the rates were so unreasonably low as

to amount to a taking of the company’s property

embraced in the mortgage without due process of

law. It was held that, as the trial of the suit would

necessarily involve the management and conduct of

the company’s affairs and an adjudication of its

rights, it was an indispensable party.

The present case involves the disposition of land

and a contract for the sale and purchase chereof

without the actual legal owners being a party to the

action. It goes without saying that in order for

Doughton to make any determination of the matter it

was necessary for the Stanleys to be joined in the

action for all jurisdictional purposes for they were the

indispensable parties for as to them, failure to join

defeated jurisdiction absolutely, and Doughton had no

discretion in the matter. Id.

Further, Doughton’s acts were not authorized by

North Carolina Statute § 22-2 in that the “adden-

dum” purported to be a contract for the Stanley land

grossly violated § 22-2 for several reasons but one in

particular, it failed to confer jurisdiction, that being,

the Stanleys’ signatures and names upon and within

the document itself for they were the party to be

charged therewith. See N.C. Gen. Stat. $ 22-2. (See

also, Pleading No. 6, Am. Compl., Ex. 1).

In the case Ferris v. Wilbur, 27 F.2d 262, 264 (4th

Cir. 1928), in an opinion by Judge Parker the court

held:

“Where the act complained of is not author-

ized by statute, or where the statute author-

izing is void because in conflict with some

provision of the Constitution, the person at-

tempting it may be restrained in a proper

case, notwithstanding his claim that he is

acting in his official capacity. In such case he

is acting, not within the law, but outside it,

his act is not the act of government, and the

law affords him no protection for what he is

doing or is about to do.” Id.

Likewise, in the case Stroud v. Benson, 254 F.2d

488 (4th Cir. 1958), the Court there found because an

indispensable party to the action was not joined, the

district court lacked jurisdiction to determine the

matter and vacated the orders and judgment in the

case.

The North Carolina Supreme Court has held:

“It is axiomatic, at least in America jurispru-

dence, that a judgment rendered by a court

against a citizen affecting his vested rights

in an action or proceeding to which he is not

party is absolutely void and may be treated

as a nulity whenever it is brought to the at-

tention of the court.” Card v. Finch, 142 N.C.

153, 88 S.E. 1009, 1010 (1906); Johnson v.

Whilden, 171 N.C. 153, 88 S.E. 223 (1916);

Flowers v. King, 145 N.C. 234, 58 S.E. 1074

(1907); Rackley v. Roberts, 147 N.C. 201, 60

S.E. 975 (1908).

“A void judgment, however, binds no one. Its

validity may be asserted at anytime and in

any action, where some benefit or right is as-

serted thereunder. A judgment is void if the

court rendering it does not have jurisdiction

either of the asserted cause of action or of the

parties.” Moore v. Humphrey, 247 N.C. 243

(1958); Mills v. Richardson, 240 N.C. 187

(1954); Powell v. Turpin, 224 N.C. 67, 29

S.E.2d (1944); Dunn v. Wilson, 210 N.C. 493,

187 S.E. 802 (1936); Clark vu. Carolina

Homes, 189 N.C. 703, 128 S.E. 20 (1925);

Carter v. Roundtree, 109 N.C. 29 (1891).

It is also fact, the state court plaintiffs, [Honach-

ers], lacked standing to bring the action in that the

Honachers were never a party to the Everson/Stanley

contract, and never provided any consideration

thereof. They could not prove by fact or law any

personal injury or they held a personal stake in the

dispute to render judicial resolution appropriately.

The Eversons sufficiently with competent evidence

proved this fact to the Fourth Circuit, of which, they

overlooked. The evidence before the Fourth Circuit as

proof the Honachers lacked standing to bring the

action was their very own testimonies at trial admit-

ting they were never a party to the Everson/Stanley

contract; the Stanleys never executed any document

with the Honachers; they did not provide considera-

tion; and the Stanleys were the legal owners of the

land as the Stanley Deed served prima facie. (See

Pleading No. 6, Am. Compl., Ex. 3, 5, 6, 7, 8).

This Court has stated concerning a plaintiff’s

standing as follows:

“The threshold requirement of standing is

‘perhaps the most important’ condition of

justiciability. Allen v. Wright, 468 U.S. 737,

750 (1984). The standing inquiry ensures

that a plaintiff has a sufficient personal

stake in a dispute to render judicial resolu-

tion appropriate. Jd. at 750-751. The stand-

ing requirement also “tends to assure that

the legal questions presented to the court

will be resolved, not in the rarefied atmos-

phere of a debating society, but in a concrete

factual context conducive to a realistic ap-

preciation of the consequences of judicial ac-

tion.” Valley Forge Christian College v.

Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 472 (1982).

To meet the conditional minimum for stand-

ing, “[a] plaintiff must allege personal injury

fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed

by the requested relief.” Allen, 468 U.S. at

751. This formula includes three elements:

(1) injury in fact; (2) traceability; and (3) re-

dressability. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-561 (1992).

The injury-in-fact prong requires that a plaintiff

suffer an invasion of a legally protected interest

which is concrete and particularized, as well as actual

or imminent. See id. at 560. The traceability prong

means it must be likely that the injury was caused by

the conduct complained of and not by the independ-

ent action of some third party not before the court.

See id. Finally, the redressability prong entails that it

must be likely, and not merely speculative, that a

favorable decision will remedy the injury. See id. at

561.

It goes without saying, the kind of claim asserted

by the Honachers in the state court action should

have been self evident to Doughton being that of

breach of contract which is readily recognizable as

the kind of claim that they could not press in a court

of law for it did not satisfy the provisions of N.C. Gen.

Stat. §$ 22-2 thereby entitling them to specific per-

formance. Doughton was fully aware the claims

alleged by the Honachers for breach of contract were

claims they lacked standing to bring for they were not

entitled to adjudication for the claim of breach of

contract as it did not satisfy the ipso facto statutory

requirement as set forth by § 22-2. Further, the fact

they themselves admitted the Stanleys never exe-

cuted any document with the Honachers, informed

Doughton the indispensable parties, being the

Stanleys, must be joined in the action in order for

jurisdiction to be invoked.

The courts below failed to follow the law as to

judicial immunity of a judge who acts in the clear

absence of all jurisdiction. The courts below could not

determine the Eversons’ only assertion was Doughton

wrongly decided the state court matter based on their

filed complaint and amended complaint against

Doughton. Such a finding is purely erroneous and for

the sole benefit of Doughton, which is a manifest

injustice in this case. Certiorari should be granted

because the Eversons’ Constitutional rights under the

Fourteenth Amendment have been violated by the

wrongful deprivation of their property by a state

court judge acting in the absence of jurisdiction to

determine the matter and in violation of well-settled

law as stated above.

B. The Court of Appeals Findings Conflict

in that this Court and the Third Circuit

Have Held When a Judge Lacks Juris-

diction to Decide A Matter Substantive

Due Process Has Been Deprived When

the Issue Concerns Real Property Own-

ership.

In the case at bar, Judge Doughton forced the

Eversons to convey their land in the absence of sub-

ject matter jurisdiction, rendering Doughton’s judg-

ment as to the claims for breach of contract and

specific performance void ab initio, thus, violating the

Eversons due process rights. See Int'l Longshoremen’s

Assn. v. Davis, 476 U.S. 380, 392 (1986) (holding that

where a “state court ... hal[s}] no subject matter

jurisdiction to adjudicate the issue ... any judgment

issued by the state court wi!! be void in ab initio”).

Jurisdiction was invoked upon the district court

in the case at bar by the Eversons 42 U.S.C. § 1983

substantive due process claim under the Fourteenth

Amendment which guarantees individuals shall not

be deprived of their property without due process of

law. See U.S. Const. Amend. XIV, § 1; see also John

Corp., 214 F.3d at 577 (“Substantive due process, by

barring certain government actions regardless of the

fairness of the procedures used to implement them, [ ]

serves to prevent government power from being used

for purposes of oppressions.”

“A violation of substantive due process, for exam-

ple, occurs only when the government deprives some-

one of liberty or property; or, to use the current

jargon, only when the government works a depriva-

tion of a constitutionally protected interest.” Brennan

v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988).

“Substantive due process analysis is appropriate

only in cases in which government arbitrarily abuses

its power to deprive individuals of constitutionally

protected rights. Therefore, recognizing that reliance

on substantive due process must be taken with the

‘utmost care.’” Collins v. City of Harker Heights, 503

U.S. 115, 125 (1992).

Judge Doughton forced the Eversons to convey

their land to the Honachers in clear violation of North

Carolina Statutes (§ 22-2), in the absence of subject

matter jurisdiction, and in violation of sufficiently

fair and just legal procedures grossly lacking in

appropriate governmental justification. Doughton

was fully cognizant he lacked subject matter jurisdic-

tion as he was informed the Stanleys were the legal

owners of the land, not the Eversons. Doughton was

also cognizant, the Stanleys did not execute the

“addendum” nor any document with the Honachers,

and the “addendum” violated N.C. Gen. Stat. § 22-2,

yet he turned a blind eye and deaf ear regardless of

law, and forced the Eversons to convey their land

thereby violating their substantive due process rights

at the very core of the Fourteenth Amendment guar-

antee.

As a limitation on Congress, the Due Process

clause has been interpreted by this Court not only as

a remedial requirement when other constitutional

rights have been violated, but furthermore as having

additional “procedural” and “substantive” compo-

nents, meaning that the Clause purportedly imposes

unenumerated restrictions on legal procedures — the

ways in which laws may operate — and also on legal

substance — what laws may attempt to do or prohibit.

The Third Circuit Court of Appeals has deter-

mined that real property “ownership is a property

interest worthy of substantive due process protec-

tion.” See DeBlascio v. Zoning Bd. of Adjustment, 53

F.3d 592, 600 (3d Cir. 1995). As one court has aptly

observed, this is unquestionably “a fundamental

property interest dating back to the foundation of the

American colonies.” Homar, 63 F. Supp. 2d at 577.

“And as we concluded in DeBlascio, ‘one would be

hard-pressed to find a property interest more worthy

of substantive due process protection than |land]

ownership.’” 53 F.2d at 601.

Repeatedly, case law has revealed one guiding

principle in federal courts determining whether

certain property interest embodies the “particular

quality” necessary for a substantive due process

deprivation claim, and that principle is not deter-

mined by reference to state law, but rather depends

on whether that interest is “fundamental” under the

U.S. Constitution.

The Third Circuit has held, “That a non-

legislative government deprivation ‘that comports

with procedural due process may still give rise to

substantive due process claim “upon allegations that

the government deliberately and arbitrarily abused

its power.”’” Independent Enters., Inc. v. Pittsburgh

Water and Sewer Auth., 103 F.3d 1165, 1179 (3d Cir.

1997) (quoting Midnight Sessions, Ltd. v. City of

Philadelphia, 945 F.2d 667, 683 (3d Cir. 1991)). “Ac-

cordingly, we have held that a property interest that

falls within the ambit of substantive due process may

not be taken away by the state for reasons that are

‘arbitrary, irrational, or tainted by improper motive.’”

Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118,

123 (3d Cir. 2000) (quoting Bello v. Walker, 840 F.2d

i124, 1129 (3d Cir. 1988)), or by means of government

conduct so egregious that it “shocks the conscience,”

Boyanowski, 2000 WL 768775, at *4 (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

The Third Circuit defined cases in which a claim

of non-legislative substantive due process deprivation

falls in the case Nicholas v. Pennsylvania State

University, 227 F.3d 133 (38d Cir. 2000) holding as

follows:

“To prevail on a non-legislative substantive

due process claim, a plaintiff must establish

as a threshold matter that he has a protected

property interest to which the Fourteenth

Amendment’s due process protection ap-

plies.” Woodwind Estates, 205 F.3d at 123.

The text of the Fourteenth Amendment

speaks of “property” without qualification,

and it is well-settled that state-created prop-

erty interests, including some _ contract

rights, are entitled to protection under the

procedural component of the Due Process

Clause. See Reich v. Beharry, 883 F.2d 239,

243 (3d Cir. 1989).

“Following Justice Powell, this Circuit has

adopted an approach to substantive due

process that focuses on the nature of the

property interest at stake. By way of illus-

tration, we have so far limited non-

legislative substantive due process review to

cases involving real property ownership. See

e.g. DeBlascio, 53 F.3d at 600 (“[land] owner-

ship is a property interest worthy of substan-

tive due process protection”).

As this Court has held, “To have a property

interest in a benefit, a person clearly must have more

than an abstract need or desire for it. He must have

more than a unilateral] expectation of it. He must,

”

instead, have a legitimate claim of entitlement to it.

Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

This Court has held that the Due Process Clause

of the U.S. Constitution also has a substantive com-

ponent by holding:

(“it is settled that the due process clause of

the Fourteenth Amendment **10 applies to

matters of substantive law as well as to mat-

ters of procedure”) (quoting Whitney v. Cali-

fornia, 274 U.S. 357, 373, 71 L. Ed. 1095, 47

S. Ct. 641 (1927) (Brandies, J., concurring)).

In the case at bar, Judge Doughton deprived the

Eversons of their ownership of their property which

said ownership was “fundamental” and the Eversons

were entitled to, as the claim by the Honachers for

breach of contract “addendum” was proven to concern

not the Eversons property, but the Stanleys, and they

were not joined as a party to the action, and Dough-

ton lacked subject matter jurisdiction to determine

the matter as the indispensable party, the Stanleys

were required to be joined as a party defendant.

Certiorari should be granted because the Ever-

sons proved they held a “fundamental” entitlement to

the property and were deprived of that right under

the Fourteenth Amendment of the U.S. Constitution

thereby establishing Judge Doughton violated the

Eversons substantive due process rights as stated

above.

Ii. THIS COURT HAS HELD THAT WHEN A

JUDGE’S DECISION IN A MATTER OF-

FENDS SOME PRINCIPLE OF JUSTICE

SO ROOTED IN THE TRADITIONS AND

CONSCIENCE OF OUR PEOPLE AS TO

BE RANKED FUNDAMENTAL SUCH DE-

CISIONS VIOLATE THE DUE PROCESS

CLAUSE OF THE U.S. CONSTITUTION.

This Court held in the case Patterson v. New

York, 4382 U.S. 197, 201, 202 (1977), “that it is nor-

mally within the power of the State to regulate pro-

cedures under which its laws are carried out ... and

its decision in this regard is not subject to proscrip-

tion under the Due Process Clause unless it offends

some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fun-

damental.”

The above holding applies to the case at bar in

that Doughton’s bias and prejudice demonstrated in

the matter was the underlying cause of the Eversons

loss of their fundamental right in the ownership of

real property. Doughton turned a deaf ear and blind

eye to the prima facie evidence before him as well-

settled statutory authority, N.C. Gen. Stat. $ 22-2.

Doughton heard the testimonies of the Honach-

ers admitting the Stanleys never executed any docu-

ment agreeing to convey their property to them (See

Pleading No. 6, Am. Compl., Ex. 6-8); admitting the

Everson/Stanley contract contained two (2) conditions

that required all parties to the contract agree in

writing to any changes or assignments, of which they

did not (See Pleading No. 6, Am. Compl., Ex. 2);

admitted the “addendum” was not a binding enforce-

able contract by law (See Pleading No. 6, Am. Compl.,

Ex. 7); admitted the earnest money deposit was

returned to them by the Eversons’ Realtor Dawn

Stone (See Pleading No. 6, Am. Compl., Ex. 10);

admitted there existed no other documents dated

April 21, 2003 (See Pleading No. 6, Am. Compl., Ex.

10); and, admitted the legal owners of the land were

the Stanleys (See Pleading No. 6, Am. Compl., Ex.

10).

It has been held, “[a] fair trial in a fair tribunal is

a basic requirement of due process.” Callahan ov.

Campbell, 427 F.3d 897, 928 (11th Cir. 2005) (quoting

In re Murchison, 349 U.S. 133, 136-137, 75 S. Ct. 623,

625 (1955)).

In the present matter, it was clearly and convinc-

ingly established with competent evidence and testi-

mony the Honachers had no standing to the bring the

claim for breach of contract “addendum” nor ask the

court for specific performance thereof. As_ stated

above, Doughton was cognizant the claims could not

be decided by the court for lack of subject matter

jurisdiction as it would require the Stanleys being

joined in the action.

Yet, Doughton forced the Eversons to convey

their land to the Honachers in contravention of law,

facts, and guarantees under the U.S. Constitution.

The partiality and prejudice demonstrated by Dough-

ton is glaringly apparent in this matter, and should

certainly fall into the cases where this Court has

determined such demonstrations of bias and preju-

dice by a judge constitute violations of the Due Proc-

ess Clause.

The Due Process Clause of the Fourteenth

Amendment provides that no State shall “deprive any

person of life, liberty, or property without due process

of law.” U.S. Const. Amend. XIV. Although the lan-

guage of the clause may be “cryptic and abstract[,] . . .

there can be no doubt that at a minimum [it] re-

quire[s] that deprivation of life, liberty, or property by

adjudication be preceded by notice and opportunity

for hearing appropriate to the nature of the case.”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428

(1982). If the plaintiff los[t] something that fits into

one of the three protected categories [of] life, liberty,

or property,” Mallette v. Arlington County Employees’

Supp. Net. Sys. II, 91 F.3d 630, 634 (4th Cir. 1996),

then the question that must be answered is whether

the plaintiff “receive[d] the minimum measure of

procedural protection warranted under the circum-

stances.” Id.

In the present case, it was the state court defen-

dants [Eversons] who were deprived of their property

by the state court denying them their fundamental

rights under the Fourteenth Amendment to the U.S.

Constitution by conducting a trial in the absence of

jurisdiction thereby denying them any measure

minimum or otherwise of procedural protection

warranted under the circumstances. Mallette v.

Arlington County Employees’ Supp. Net. Sys. II,

supra.

The Fourteenth Amendment’s Due _ Process

Clause has been interpreted as preventing the States

from denying potential litigants use of established

adjudicating procedures, when such an action would

be “the equivalent of denying them an opportunity to

be heard upon their claimed [rights].” Boddie, supra.

The Fiversons were denied well established

adjudicating procedures as all the evidence in the

case at bar proves unequivocally.

The Court should grant the petition for certiorari

because the Eversons were denied a fair trial in a

tribunal which lacked jurisdiction to determine the

matter resulting in the loss of a fundamental right

being that of the right of real property ownership,

and as such, constitutes a deprivation of substantive

and procedural due process at its very core.

CONCLUSION

For the reasons stated, the Court should grant

this petition.

Respectfully submitted,

DAVID K. EVERSON

PATRICIA M. EVERSON

5100 Eldorado Pkwy.

Suite 102, No. 709

McKinney, Texas 75070

Telephone (214) 491-4102

App. 1

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1846

DAVID K. EVERSON;

PATRICIA M. EVERSON,

Plaintiffs-Appellants,

versus

RICHARD L. DOUGHTON, Individually and

in His Official Capacity as Justice of the

Superior Court of Alleghany/Rockingham

County, North Carolina,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of North Carolina, at Durham. James

A. Beaty, Jr., Chief District Judge. (1:06-cv-01033-

JAB).

Submitted: January 9, 2008

Decided: January 23, 2008

Before NIEMEYER, MICHAEL, and GREGORY,

Circuit Judges.

App. 2

Affirmed by unpublished per curiam opinion.

David K. Everson, Patricia M. Everson, Appellants

Pro Se. Grady L. Balentine, OFFICE OF THE AT-

TORNEY GENERAL, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

David K. and Patricia M. Everson appeal the

district court’s orders granting Richard L. Doughton’s

motion to dismiss the Eversons’ 42 U.S.C. §§ 1981

and 1983 (2000) complaint. The district court found

the Eversons’ claims were barred by absolute judicial

immunity and the EJ« .enth Amendment. The Ever-

sons challenge both of the district court’s findings. We

have reviewed the record, the parties’ informa! briefs,

and the district court’s orders and find no reversible

error. Accordingly, we affirm.

Judges enjoy absolute judicial immunity from

damages liability for judicial acts unless done “in

clear absence of all jurisdiction.” Stump v. Sparkman,

435 U.S. 349, 356-57 (1978). In making this determi-

nation, “the scope of the judge’s jurisdiction must be

construed broadly.” Jd. at 456. And a judge may “not

be deprived of immunity because the action [taken]

was in error, was done maliciously, or was in excess

of his authority.” Jd.; see also Chu v. Griffith, 771

App. 3

F.2d 79 (4th Cir. 1985). We have identified two im-

portant factors for consideration: whether the func-

tion is one normally performed by a judge and

whether the parties dealt with the judge in his or her

judicial capacity. King v. Myers, 973 F.2d 354, 357

(4th Cir.1992).

The Eversons’ only assertion is that Doughton

wrongly decided the state court action. As a judge on

the state superior court, Doughton had authority to

consider that action and he is immune from suits

arising from those acts.

The Eleventh Amendment provides, in pertinent

part, that “[t]he judicial power of the United States

shall not be construed to extend to any suit in law or

equity, commenced or prosecuted by one of the United

States by Citizens of another State.” The Eversons

correctly note that the Eleventh Amendment does not

bar suits seeking damages from government officials

in their individual capacities. See S.C. State Ports

Auth. v. Fed. Mar. Comm’n, 243 F.3d 165, 170 (4th

Cir. 2001). However, this principle does not aid the

Eversons because the only conduct the Eversons

challenge is Doughton’s disposition of state court

proceedings. Therefore, the district court properly

dismissed the action as being barred by the Eleventh

Amendment. See Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 71 (1989) (“[A] suit against a

state official in his or her official capacity is not a suit

against the official but rather is a suit against the

official’s office” and therefore “is no different from a

App. 4

suit against the State itself.”). Accordingly, the Elev-

enth Amendment also bars the Eversons’ claims.

We dispense with oral argument because the

facts and legal contentions are adequately presented

in the materials before the court and argument would

not aid the decisional process.

AFFIRMED

App. 5

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID K. EVERSON and

PATRICIA M. EVERSON,

Plaintiffs,

Vv.

RICHARD L. DOUGHTON,

Individually and in His Official

Capacity as Justice of the Superior

Court of Alleghany/Rockingham

County, North Carolina,

Defendant.

1:06CV01033

)

ORDER

This matter is currently before the Court on a

Motion to Dismiss [Document #7] by Defendant

Richard L. Doughton (“Defendant”). On April 18,

2007, the United States Magistrate Judge’s Order

and Recommendation [Document #12] was filed and

notice was served on the parties pursuant to 28

U.S.C. § 636(b). Plaintiffs filed timely Objections

[Documents [sic] #14]. The Court has now reviewed

the Gbjections and the portions of the Recommenda-

tion to which objection was made, and has made a de

novo determination that is in accord with the United

States Magistrate judge’s ruling. The Magistrate

Judge’s Recommended Decision is therefore affirmed

and adopted.

App. 6

IT IS THEREFORE ORDERED that Defendant’s

Motion to Dismiss [Document #7] is GRANTED, and

this case wil! be DISMISSED.

This, the 8th day of June, 2007.

/s/ James A. Beaty

United States District Judge

App. 7

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE MiDDLE DISTRICT OF NORTH CAROLINA

DAVID K. EVERSON and

PATRICIA M. EVERSON,

Plaintiffs,

RICHARD L. DOUGHTON,

Individually and in His Official

Capacity as Justice of the Superior

Court of Alleghany/Rockingham

County, North Carolina,

Defendant.

1:06CV01033

)

JUDGMENT

BEATY, Chief Judge.

For the reasons set forth in the Order filed con-

temporaneously herewith, IT IS ORDERED AND

ADJUDGED that Defendant’s Motion to Dismiss

[Document #7] is GRANTED and this case is hereby

DISMISSED.

This, the 8th day of June, 2007.

/s/ James A. Beaty

United States District Judge

App. 8

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE MIPDOLE DISTRICT

OF NVERTH CAROLINA

DAVID K. EVERSON and

PATRICIA M. EVERSON,

Plaintiffs,

Vv.

RICHARD L. DOUGHTON,

individually and in his

official capacity as Justice

of the Superior Court of

Alleghany/Rockingham

County, N.C.,

Defendant.

1:06CV1033

(Filed Apr. 18, 2007

Nm Nee Nee eee “ee”

RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

Plaintiffs David K. Everson and Patricia M.

Everson brought this civil action pursuant to 42

U.S.C. §§ 1981 and 1983, alleging that Defendant

Superior Court Judge Richard L. Doughton deprived

them of their constitutional rights under the Fifth

and Fourteenth Amendments during and in relation

to a civil action brought in state court against the

Eversons for breach of contract. Plaintiffs proceed pro

se. In their Amended Complaint (Pleading No. 6),

Plaintiffs assert claims against Judge Doughton

individually and in his official capacity as a Superior

App. 9

Court Judge of the State of North Carolina. In re-

sponse to the Amended Complaint, Defendant Dough-

ton has filed a motion to dismiss pursuant to Rules

12(b)(1) and 12(b)\(6) of the Federal Rules of Civil

Procedure. (Pleading No. 7.) Plaintiffs have filed a

response in opposition to the motion to dismiss.

In the Amended Complaint, Plaintiffs assert that

they were sued in state court in 2003 by Charles S.

Honacher and Catherine M. Honacher. One of the

claims asserted by the Honachers was breach of

contract, arising out a real estate transaction. Plain-

tiffs assert that the state court, and therefore Judge

Doughton, lacked jurisdiction and judicial authority

over the proceeding because the Honachers failed to

join a necessary party to the litigation (the Stanleys)

and because “the last act of making the Everson/

Stanley contract binding by law was the Stanley

Heirs signing of the contract on May 5, 2003, in a

State other than North Carolina.” (Pleading No. 6,

Am. Compl. {q 24, 25.) Plaintiffs further allege that,

at the conclusion of the trial of the action, Judge

Doughton, in violation of due process and equal

protection and the laws of North Carolina, ordered

specific performance, “forcing the Plaintiffs to convey

their rightful land erroneously... .” (id. ¥ 27.) Plain-

tiffs allege that Judge Doughton denied their motion

for a new trial and their amended motion, and en-

tered his final order on December 6, 2004.

Plaintiffs add allegations that Judge Doughton

lacked jurisdiction to adjudicate matters relating to

the rights of Carolina Farm Credit, ACA (“CFC”), a

App. 10

mortgage holder with regard to the property in dis-

pute. Plaintiffs allege that Judge Doughton acted

without jurisdiction and judicial authority because

Plaintiffs and CFC had chosen the State of Texas “as

the footing for all negotiations regarding the pur-

ported Deed of Trust.” (Jd. 7 63.) Plaintiffs allege that

they were denied trial by jury. They allege that the

plaintiffs in the state action, the Honachers, commit-

ted a fraud upon the court by giving perjured testi-

mony, and that Judge Doughton “defiled the court

itself by allowing a sham of a trial to take place when

it was glaringly obvious by admitted testimony,

evidence, and Rule of Law no contract existed for the

land pursuant to N.C.G.S. § 22-2.” Ud. 4109.) For

relief, Plaintiffs ask that Judge Doughton’s orders

and judgments be nullified and that the Court grant

declaratory relief and compensatory damages.

A summary of the allegations of the Amended

Complaint, as set forth above, reveals on its face the

obvious reasons why Defendant’s Rule 12(b)(6)

motion to dismiss this action should be granted.

Defendant Judge Doughton is clearly entitled to

judicial immunity with regard to damages claims

against him in his individual capacity. It is well

settled that judges are immune from damages liabil-

ity for judicia! acts unless done in the clear absence of

all jurisdiction. Stump v. Sparkman, 435 U.S. 349,

356-57 (1978). Immunity is not lost because the

judge’s actions were taken in error, done maliciously,

or exceeded authority. /d. at 355-56. The test for

“judicial acts” focuses upon whether the acts were a

App. 11

function normally performed by a judge. Forrester v.

White, 484 U.S. 219 (1988). The kinds of arguments

made here by Plaintiffs, that Judge Doughton erred

in jurisdictional rulings, failed to join a necessary

party, improperly found that proceedings should take

place in North Carolina rather than Texas, and

misapplied North Carolina law are utterly remote

from the “clear absence of all jurisdiction” required

for a forfeiture of judicial immunity. To the extent

Plaintiffs ask for declaratory judgment, they essen-

tially ask this Court to sit as a court of error with

respect to a state court civil trial. This notion reveals

a fundamental misunderstanding of the relationship

between the federal and state courts.

Plaintiffs’ action against Judge Doughton in his

official capacity fares no better. Such an action is in

essence an action against the State of North Carolina.

However, the Eleventh Amendment generally bars

suits directly against states or it agencies, regardless

of the nature of relief sought. Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 58 (1996). A state may

waive such immunity, but there is no allegation of

waiver here, and it is readily apparent that there has

been no such waiver by the State of North Carolina

with regard to the rulings of its state court judges.

In sum, the Court finds that Defendant’s Rule

12(b)(6) motion is well-taken and that the pro se

Plaintiffs have stated no legally cognizable claim

against the Defendant.

App. 12

Conclusion

For reasons set forth above, IT IS RECOM-

MENDED that Defendant’s motion to dismiss (Plead-

ing No. 7) be granted and that this action be

dismissed with prejudice.

/s/ P. Trevor Sharp

United States

Magistrate Judge

Date: April 18, 2007

App. 13

APPENDIX E

FILED: February 26, 2008

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1846

(1:06-cv-01033-JAB)

DAVID K. EVERSON; PATRICIA M. EVERSON,

Plaintiffs-Appellants

RICHARD L. DOUGHTON, Individually and in

His Official Capacity as Justice of the Superior Court

of Alleghany/Rockingham County, North Carolina,

Defendant-Appellee

ORDER

The petition for rehearing en banc was circulated

to the full Court. No poll was requested. The Court

denies the petition for rehearing en banc.

For the Court

/s/ Patricia S. Connor, Clerk

App. 14

APPENDIX F

MAIL TO: John T. Weigel

PO Box 2993

Greens Boro, NC 27402

This Deed drawn by

John T. Weigel, Jr. Attorney At Law

Permanent Address of Grantee:

PO BOX 56, STANLEYTOWN, VA

This Deed, made this 20th day of December, 1989,

by and between Helen C. Stanley, Trustee under the

Trust Agreement of Thomas B. Stanley and Ann B.

Stanley, hereinafter called Grantor, and John David

Stanley, Jr., Elizabeth Anne Stanley Hannula and

Allen Bonson Stanley, as Tenants in Common, here-

inafter called Grantee.

WITNESSETH: That the Grantor, for and in

consideration of the sum of Ten Dollars, other good

valuable consideration to him in hand paid by the

Grantee, the receipt and sufficiency whereof is hereby

acknowledged, has given granted, bargained, sold and

conveyed, and by these presents does give, grant,

bargain, sell, convey and confirm unto the Grantee

his heirs and/or successors and assigns, premises in

Madison Township, Rockingham County, North

Carolina, described as follows:

SEE EXHIBIT “A” ATTACHED HERETO AND

INCORPORATED HEREIN BY REFERENCE.

App. 15

This conveyance is subject to easements, restric-

tions, and rights-of-way of record and current year Ad

Valorum taxes.

TO HAVE AND TO HOLD the above described

premises, with all the appurtenances thereunto

belonging, or in any way appertaining, unto the

Grantee, his heirs and/or successors and assigns

forever.

And the Grantor covenants that he is seized of

said premises in fee, and has the right to convey the

same in fee simple; that said premises are free from

encumbrances (with the exceptions above stated, if

any); and that he will warrant and defend the said

title to the same against the lawful claims of all

persons whomsoever.

When reference is made to the Grantor or

Grantee, the singular shall include the plural and the

masculine shall include the feminine or the neuter.

IN WITNESS WHEREOF, the Grantor has

hereunto set his hand and seal, the day and year

above written.

/s/ Helen C. Stanley (Seal)

Helen C. Stanley, Trustee

STATE OF Virginia

COUNTY OF Henrv

I, J. Greg Haley , a Notary Public for said

County and State, do hereby certify that Helen C.

App. 16

Stanley, Trustee personally appeared before me this

day and acknowledged the due execution of the

foregoing instrument.

Witness my hand and official seal, this the 20th

day of December, 1989.

[SEAL]

/s/ J. Greg Haley

NOTARY PUBLIC

My Commission Expires:

December 13, 1991

App. 17

APPENDIX G

FILED

ROCKINGHAM COUNTY NC

REBECCA B. CIPRIANI

7-10-2003 2:49:58

RECORDING 21.00

PROBATE 2.00

EXCISE TAX 470.00

NONSTAND

RECEIPT NO. 14077-001

BOOK 1158 PAGE 2049

NORTH CAROLINA

GENERAL WARRANTY DEED

Excise Tax: $ 470.00

Tax Map No. Parcel Identifier No.

This instrument prepared by:

John M. Thomas, Attorney at Law, George B.

Daniel, P.A., P.O. Box 999, Yanceyville, North

Carolina 27379 (without title examination)

Return after recording to the Grantee at:

5871 AC Washburn Rd

Madison, NC 270625

NORTH CAROLINA

ROCKINGHAM COUNTY

HIS DEED, made and entered into this 14th day of

May, 2003, by and between, JOHN DAVID STANLEY,

JR., and wife, JANET N. STANLEY; ELIZABETH

STANLEY SCEARCE (f/k/a ELIZABETH ANNE

STANLEY HANNULA) and = =husband, EARL

App. 18

SCEARCE, and ALLAN B. STANLEY (a/k/a Allen

Bonson Stanley) and wife, CONNIE J. STANLEY,

hereinafter referred to as Grantor, and DAVID K.

EVERSON and wife, PATRICIA M. EVERSON,

hereinafter referred to as Grantee. The designation

Grantor and Grantee as used herein shall include

said parties, their heirs, successors, and assigns, and

shall include singular, plural, masculine, feminine, or

neuter as required by context.

WITNESSETH:

That the Grantor, in consideration of the sum of

Ten Dollars ($10.00) and other valuable consideration

paid by the Grantee, the receipt of which is hereby

acknowledged, has, and by there presents, does grant,

bargain, sell, and convey unto the Grantee, in fee

simple, all of his interest in that certain tract or

parcel of land lying and being in Madison Township,

Rockingham County, North Carolina, more particu-

larly described as follows:

BEGINNING at an existing concrete monu-

ment in the north right of way line of N.C.

State Road 2326 (paved), W. Raymond Sharp

heirs (Deed Book 206, Page 381) and running

thence with said Sharp heirs line, North 01

deg. 18 min. 40 sec. West 2095.89 feet to an

iron. Sharp heirs corner in the South line of

Dr. Robert T. Harned (Deed Book 668, Page

341); thence with Harned’s line South 84

deg. 28 min. East 136.03 feet to a concrete

monument, the southwest corner of Sitting

Rock Farm, Inc. (Deed Book 668, Page 759,

see also Lot No 1., Map of W. Earl Thomas in

App. 19

Map Book 9, at Page 60); thence with Sitting

Rock Farm, Inc. line, South 84 deg. 30 min.

East passing through an iron in line at

1279.93 feet, a total distance of 1297.27 feet

to a point in the centerline of State Road No.

2321 (Gravel); thence with the centerline of

that road, South 03 deg. 33 min. West

1242.88 feet to a point; thence continuing

with the centerline of that road, South 00

deg. 08 min. West 101.57 feet; thence still

with the centerline of the road and on its

paved portion South 03 deg. 56 min. East

123.82 feet; thence still with the centerline of

the paved portion of State Road No. 2321

South 13 deg. 19 min. East 93.04 feet to the

point of intersection of the centerline of that

road with the centerline of State Road No.

2326; thence with the centerline of State

Road No. 2326; thence with the courses and

distances; South 59 deg. 59 min. West 194.19

feet, South 66 deg. 12 min. West 307.81 feet,

and South 76 deg. 33 min. West 905.63 feet

to a point; thence leaving the centerline of

the road, North 01 deg. 18 min. 40 sec. West

30.69 feet to the point of BEGINNING, and

containing 58.712 acres, more or less. The

foregoing description was prepared from a

map of survey by Kenneth A. Vaughn,

R.L.S., dated May 12, 1978, entitled “Prop-

erty of John G. Sharp”. For further reference

and chain of title see Deed Book 206, at page

380, Deed Book 249, at page 41. This being

the same property shown as Tract 1 as con-

veyed by Warranty Deed dated December 20,

1989, recorded in Book 830, on Page 1294,

App. 20

Rockingham County Registry, the descrip-

tion therein being incorporated herein by

reference.

TITLE NOT EXAMINED

BY PREPARER OF DEED

TO HAVE AND TO HOLD the aforesaid tract or

parcel of land and all privileges and appurtenances

thereunto belonging to the Grantee in fee simple.

And the Gantor covenants with the Grantee, that

Grantor is seized of the premises in fee simple, has

the right to convey the same in fee simple, that title

is marketable and free and clear from all encum-

brances, and Grantor will warrant and defend the

title against the lawful claims of all persons whomso-

ever except for the exceptions hereinafter stated.

Title to the property hereinabove described is subject

to the following exceptions:

1. The 2003 Rockingham County property taxes

which because a lien on the land January 1, 2003, but

are not due and payable until September 1, 2003.

2. Any and all valid recorded and unrecorded

easements and rights of way over and across subject

property, including those for public utilities and

highways.

3. Any inaccuracies and discrepancies which an

up to date survey might reveal.

4. Any environmental defects of property which

_might be revealed by on-site investigation.

App. 21

5. Restrictions of record, if any.

IN WITNESS WHEREOF, the Grantor has

hereunto set his hand and seal, the day and year first

above written.

/s/ John David Stanley, Jr. /s/ Janet N. Stanley

(SEAL) (SEAL)

John David Stanley, Jr. Janet N. Stanley

/s/ Elizabeth Stanley Scearce _ /s/ Earl Scearce

(SEAL) (SEAL)

Elizabeth Stanley Scearce Earl Scearce

(/k/a Elizabeth Anne /s/ Connie J. Stanley

Stanley Hannula) (SEAL)

/s/ Allen B. Stanley Connie J. Stanley

(SEAL)

Allan B. Stanley

(a/k/a Allen Bonson Stanley)

STATE OF NEVADA , COUNTY OF Washoe

I, a Notary Public of the State and County aforesaid,

certify that John David Stanley, Jr., and wife, Janet

N. Stanley, personally appeared before me this day

and acknowledged the execution of the foregoing

instrument.. Witness my hand and official stamp or

seal, this 21st day of May , 2003.

My commission expires: 11-19-06

/s/ Jennifer Hublar Notary Public

JENNIFER HUBLAR

[SEAL] Notary Public — State of Nevada

Appointment Recorded in Washoe County

No: 02-79253-3 — Expires November 19, 2006

App. 22

STATE OF NEVADA , COUNTY OF Washoe

I, a Notary Public of the State and County aforesaid,

certify that Elizabeth Stanley Scearce (f/k/a Elizabeth

Anne Stanley Hannula), personally appeared before

me this day and acknowledged the execution of the

foregoing instrument. Witness my hand and official

stamp or seal, this 27th day of May , 2003.

My commission expires: Aug. 7, 2006

/s/ C.B. Paguio Notary Public

C.B. PAGUIO

[SEAL] Notary Public — State of Nevada

Appointment Recorded in Washoe County

No: 02-78070-2 — Expires August 7, 2006

STATE OF Delaware , COUNTY OF Kent

I, a Notary Public of the State and County aforesaid,

certify that Allan B. Stanley (a/k/a Allen Bonson

Stanley) and wife, Connie J. Stanley, personally

appeared before me this day and acknowledged the

execution of the foregoing instrument. Witness my

hand and official stamp or seal, this 3 dayofJune __,

2003.

My commission expires: 8/3/04

/s/ Dorothy M. Litano Notary Public

[STAMP]

App. 23

STATE OF Virginia , COUNTY OF Henry

I, a Notary Public of the State and County aforesaid,

certify that Earl Scearce, personally appeared before

me this day and acknowledged the execution of the

foregoing instrument. Witness my hand and official

stamp or seal, this 2 day of June , 2003.

My commission expires:

My Commission Expires October 31, 2007

/s/ Rolanda R. Stockton Notary Public

[SEAL] NORTH CAROLINA-ROCKINGHAM COUNTY

The certificate(s) of Jennifer Hublar, C.B. Paguio,

Dorothy M. Litano

& Rolanda R. Stockton

a Notary (Notaries) Public is (are) certified to

be correct. This instrument and this certifi-

cate are daily registered at the date and time

shown herein.

REBECCA B. CIPRIANI,

BY /s/ Amy L. Simpson

Assistant/Deputy Register of Deeds

The foregoing certificate of [Illegible]

is certified to be co[Illegible] re duly registered

at the date and time and in the Book and Page shown

on the first page hereof.

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