266 N.C. App. 255
N.C. Ct. App.2019Background
- Plaintiff (Humphrey Land Investment Co., LLC) negotiated sale of ~45 acres in Hillsborough for a 2‑phase townhome development; Phase I closed but Phase II (5.5 acres adjacent to defendants' mine) was later terminated by buyer.
- Defendants (Resco Products, Inc. and Piedmont Minerals Co., Inc.) opposed annexation/zoning before the Town and its planning board, making statements about dangers from their blasting operations (fly rock, air blasts, vibrations).
- Plaintiff alleges those statements were malicious misrepresentations that caused Braddock Park Homes to exercise its contractual right to terminate Phase II, injuring Plaintiff ($467,755 claimed).
- Defendants moved to dismiss under Rule 12(b)(6), arguing (inter alia) Noerr‑Pennington immunity and that risks of blasting (an ultrahazardous activity) cannot be overstated as actionable misrepresentations.
- Trial court granted dismissal; the Court of Appeals reversed and remanded, holding (1) Noerr‑Pennington did not bar the claim on these facts, (2) misstatements about an ultrahazardous activity can be actionable, and (3) the tort of tortious interference with prospective economic advantage encompasses termination/modification of part of a multi‑phase contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Noerr‑Pennington immunity | Defendants’ statements to Town are actionable and do not fall within First Amendment petitioning immunity | Statements to government are protected petitioning; Noerr‑Pennington bars the claim absent sham pleading | Noerr‑Pennington does not apply on these facts; complaint does not show defendants enjoy immunity as a matter of law |
| Actionability of statements about blasting (ultrahazardous activity) | Misrepresentations overstating blasting risks can be relied on and cause economic harm | Because blasting is ultrahazardous and strictly liable, risks cannot be overstated as actionable misrepresentations | Misstatements about an ultrahazardous activity can be actionable; strict liability for blasting does not preclude fraud/interference claims |
| Sufficiency of pleading for tortious interference with prospective economic advantage | Complaint alleges business relationship, intentional unjustified interference, causation, malice, and damages | Buyer merely exercised contractual modification/termination rights; tort should not cover contract modifications | Pleading is sufficient; North Carolina tort covers inducing modification/termination of parts of multi‑part agreements |
| Whether plaintiff’s facts foreclose recovery as a matter of law | Plaintiff can prove detrimental reliance and causation from defendants’ misrepresentations | Alleged facts or permit obligations show defendants had justification or no actionable falsehoods | Facts as pleaded do not foreclose recovery; dismissal under 12(b)(6) improper |
Key Cases Cited
- Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (First Amendment petitioning can immunize antitrust liability; recognized sham exception)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (extended Noerr immunity to concerted efforts to influence government regardless of intent)
- Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014) (describes objective‑baseless standard for sham litigation exception)
- Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69 (1963) (blasting is ultrahazardous in North Carolina; strict liability applies)
- Beverage Sys. of the Carolinas v. Assoc. Beverage Repair, 368 N.C. 693 (2016) (elements and contours of tortious interference with prospective economic advantage)
- Reichhold Chemicals, Inc. v. Goel, 146 N.C. App. 137 (2001) (Noerr‑Pennington discussion; inducing non‑petitioning causes of action distinguished)
- Good Hope Hosp., Inc. v. NC Dep’t of Health and Human Svcs., 174 N.C. App. 266 (2005) (applied Noerr‑Pennington in CON context; explained sham pleading requirements)
- North Carolina Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 220 N.C. App. 212 (2012) (discussed Noerr‑Pennington applicability; affirmed nonapplication where claim lacked probable cause)