Kirkman v. Kirkman , 42 N.C. App. 173 ( 1979 )

256 S.E.2d 264 (1979) 42 N.C. App. 173

John C. KIRKMAN, Jr., Thomas L. Kirkman and Lina Kirkman Hamilton
v.
Minnie H. KIRKMAN.

No. 7814SC934.

Court of Appeals of North Carolina.

July 3, 1979.

Nancy Fields Fadum, Raleigh, for plaintiffs-appellants.

E. C. Harris and Randall, Yaeger & Woodson by John C. Randall, Durham, for defendant-appellee.

HEDRICK, Judge.

Although it has not been raised directly by either party, we first consider the issue of jurisdiction. "An actual controversy between the parties is a jurisdictional prerequisite for a proceeding under the Declaratory Judgment Act." Adams v. North Carolina Department of Natural and Economic Resources, 295 N.C. 683, 703, 249 S.E.2d 402, 414 (1978). When the record shows that there is no basis for declaratory relief, as when the complaint does not allege an actual, genuine existing controversy, this may be taken advantage of by a Rule 12(b)(6) motion to dismiss. North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Newman Machine Co. v. Newman, 275 N.C. 189, 166 S.E.2d 63 (1969). While the Declaratory Judgment Act is to be liberally construed, its provisions are not without limitation. In determining whether an actual controversy exists in the present case, the following principles concerning the scope of the Act are applicable:

[The Act] does not undertake to convert judicial tribunals into counselors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightenment or practical guidance concerning their legal affairs. This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice. [Citations omitted.]

. . . . .

While the Uniform Declaratory Judgment Act thus enables courts to take cognizance of disputes at an earlier stage than that ordinarily permitted by the legal procedure which existed before its enactment, its preserves inviolate the ancient and sound juridic concept that the inherent function of judicial tribunals is to adjudicate genuine controversies between antagonistic litigants with respect to their rights, status, or other legal relations. This being so, an action for a declaratory judgment will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute.

Lide v. Mears, 231 N.C. 111, 117-18, 56 S.E.2d 404, 409 (1949). See also North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. at 446-47, 206 S.E.2d at 187.

Application of the foregoing principles to the facts of the present case compels the conclusion that the trial court lacked jurisdiction to enter a summary judgment. The plaintiffs in the present case are third party donee beneficiaries of the executory contract between their father and the defendant to devise the real property known as 4316 Samoa Court, Durham, North Carolina, in a particular manner. Although the plaintiffs have alleged that the defendant revised her Will to eliminate the provisions relating to disposition of the residence, it is clear that no breach of the Postnuptial Agreement could occur until the defendant either voluntarily disables herself from being able to comply with its terms, as for example by conveying the real property to a third party, or dies without making a Will disposing of the property in accordance with the contract. Even if the allegation of the plaintiffs was true, there is nothing to prevent the defendant from revising her Will prior to her death to bring it into compliance with the Postnuptial Agreement. The courts do not have the authority to declare the legal rights and obligations of the plaintiffs, as third party donee beneficiaries, to an executory contract upon the mere allegation that they anticipate that the obligor will breach the contract at some time in the future. As there has been no breach of the contract, any order entered by the court attempting to secure the obligor's performance in compliance with the terms of the contract would be unenforceable.

In essence, plaintiffs seek a determination of their rights upon a breach of the contract by the defendant. No breach has yet occurred, and there is no assurance that the contract will be breached. The facts here alleged present a wholly abstract question and any decision from this Court on such facts would be purely advisory. See City of Raleigh v. Norfolk Southern Railway Co., 275 N.C. 454, 168 S.E.2d 389 (1969).

Furthermore, plaintiffs pray for the imposition of a constructive trust on the property or on the proceeds from its sale. While proceedings under the Declaratory Judgment Act have been given wide latitude, they nevertheless do not encompass the general equity jurisdiction of the court. See Brandis v. Trustees of Davidson College, 227 N.C. 329, 41 S.E.2d 833 (1947); Elliott v. Ballentine, 7 N.C.App. 682, 173 S.E.2d 552 (1970).

We hold that plaintiffs have failed to allege sufficient facts to show the existence of an actual or justiciable controversy with regard to any interest they have in the property sufficient to invoke the jurisdiction of the court to declare their rights or to impress a constructive trust on the property for their benefit. It follows that the court lacked jurisdiction to make any declaration with respect to the constitutionality of G.S. § 52-6 as prayed for in defendant's "counterclaim."

For the reasons stated, the judgment of the Superior Court entered on 30 June 1978 is vacated, and the matter is remanded to the Superior Court of Durham County for entry of an Order dismissing the proceeding and cancelling the notice of lis pendens.

Vacated and remanded.

VAUGHN and ARNOLD, JJ., concur.