Fox v. Wilson
354 S.E.2d 737
N.C. Ct. App.
1987
Check Treatment
MARTIN, Judge.

The order of the trial court did not dismiss Count I of the amended complaint and thus did not adjudicate all of the claims or the rights and liabilities of all of the parties. The order dismissing Count II did not contain a certification that “there is no just reason for delay” as required by G.S. 1A-1, Rule 54(b) for entry of a final judgment where fewer than all of the claims or parties are disposed of. Therefore the order is interlocutory and we must determine the threshold issue of whether plaintiffs present appeal is premature.

Although it is the general rule that no appeal lies from an interlocutory order, G.S. 1-277 and G.S. 7A-27(d) permit an im mediate appeal from an interlocutory order which affects a substantial right. Newton v. Standard Fire Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976); Oestreicher v. American National Stores, Inc., 290 N.C. 118, 225 S.E. 2d 797 (1976). We hold that the dismissal of Count II of the amended complaint, resulting in dismissal of plaintiffs claim against defendant professional corporation, affects a substantial right to have determined in a single proceeding the issues of whether she has been damaged by the actions of one, some or all defendants, especially since her claims against all of them arise upon the same series of transactions. See Bernick v. Jurden, 306 N.C. 435, 293 S.E. 2d 405 (1982); Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E. 2d 354, disc. rev. denied, 311 N.C. 758, 321 S.E. 2d 136 (1984). The appeal is not premature.

Plaintiff seeks reversal of the order dismissing Count II of her amended complaint. She contends first that the allegations of Count II are sufficient to state claims for relief against defendant Wilson for fraud, both actual and constructive, and for legal malpractice. She also contends that Count II is sufficient to state a claim, based on the doctrine of respondeat superior, against defendant professional corporation. Defendants argue, however, that, as to defendant Wilson, the allegations of Count II are mere surplusage because the allegations of Count I are sufficient to allege claims for actual and constructive fraud against him. They contend further that dismissal of the claim against defendant professional corporation was appropriate because the amended complaint makes clear that any alleged wrongdoing on the part of defendant Wilson was not committed in his capacity as an agent or employee of the firm.

In order to withstand a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), the complaint must provide sufficient notice of the events and circumstances from which the claim arises, and must make allegations sufficient to satisfy the substantive elements of at least some recognized claim. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979); Hewes v. Johnston, 61 N.C. App. 603, 301 S.E. 2d 120 (1983). In considering the motion, the allegations contained within the complaint must be treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E. 2d 282, 79 A.L.R. 3d 651 (1976). “[A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. ” Sutton v. Duke, 277 N.C. 94, 103, 176 S.E. 2d 161, 166 (1970) (emphasis original).

While the allegations of Count II of the amended complaint are, in large measure, repetitive of Count I with respect to defendant Wilson, some new allegations appear. For example, plaintiff alleges in Count II that Wilson entered into an attorney-client relationship with her in February, 1985, and that the very transaction in which she claims she was defrauded occurred during the pendency of that relationship. In order to establish a claim for constructive fraud, a plaintiff must allege facts sufficient to show the creation of a relationship of trust and confidence and that the defendant took advantage of that relationship to plaintiffs detriment. Terry v. Terry, 302 N.C. 77, 273 S.E. 2d 674 (1981). A relationship of trust and confidence “exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). It has long been recognized that the relationship of attorney and client creates such a relationship of trust and confidence. See Egerton v. Logan, 81 N.C. 172 (1879); Lee v. Pearce, 68 N.C. 76 (1873); Stilwell v. Walden 70 N.C. App. 543, 320 S.E. 2d 329 (1984). The allegations of Count II are therefore relevant to plaintiffs claim against defendant Wilson for constructive fraud.

Plaintiff also sought to predicate her claim for legal malpractice upon the allegations of Count II that defendant Wilson, while acting as her attorney, took advantage of the relationship to his own benefit and that of defendant Erby. An attorney “is answerable in damages for any loss to his client which proximately results from . . . the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.” Hodges v. Carter, 239 N.C. 517, 520, 80 S.E. 2d 144, 146, 45 A.L.R. 2d 1, 4 (1954). “[A]n attorney who makes fraudulent misstatements of fact or law to his client, or who fails to impart to his client information as to matters of fact and the legal consequences of those facts, is liable for any resulting damages which his client sustains.” 7 Am. Jur. 2d, Attorneys At Law § 215, at 258 (1980). Taking the allegations of Count II of the amended complaint as true, which we must do at this stage in the litigation, Smith v. Ford Motor Co., supra, we hold that plaintiff has adequately stated a claim for relief for legal malpractice as against defendant Wilson.

Plaintiff also contends that Count II of the amended complaint was sufficient to state a claim for relief against defendant professional corporation for the acts committed by defendant Wilson. We agree. Plaintiff alleged that defendant Wilson and another attorney who was an officer and employee of the professional corporation undertook to represent her with respect to the newspaper, and that at all relevant times they were acting within the course and scope of their capacities as “agents, officers and employees” of the professional corporation. She alleged that, at Wilson’s direction, the other attorney prepared documents by which the alleged fraudulent transfer occurred and procured her signature thereon.

Our Supreme Court has held that a professional corporation may be held liable for the misconduct of one of its officers where the officer is apparently acting within the scope of his authority and as agent for the corporation. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E. 2d 795 (1974). Liberally construed, the complaint sufficiently alleges that Wilson was acting within the course and scope of his employment and with the knowledge of at least one other officer of the corporation. No insurmountable bar to recovery against the corporation appears on the face of the complaint and plaintiffs claim against it was, therefore, erroneously dismissed. Snug Harbor Property Owners Association v. Curran, 55 N.C. App. 199, 284 S.E. 2d 752 (1981), disc. rev. denied, 305 N.C. 302, 291 S.E. 2d 151 (1982).

For the foregoing reasons, we hold that it was error to dismiss Count II of plaintiffs amended complaint. It was also error to dismiss plaintiffs claim against defendant professional corporation and to discharge the corporation as a party defendant to the suit.

Plaintiff also contends that the trial court erred by dismissing her “claim of civil conspiracy as alleged in the Amended Complaint.” Although plaintiff has labeled her action as one for “civil conspiracy,” there is actually no such thing as an action for civil conspiracy. Evans v. Star GMC Sales and Service, Inc., 268 N.C. 544, 151 S.E. 2d 69 (1966). Our Supreme Court has stated:

[accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof — the damage —not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable.

Reid v. Holden, 242 N.C. 408, 414-15, 88 S.E. 2d 125, 130 (1955) quoting 11 Am. Jur., Conspiracy, § 45. “In civil conspiracy, recovery must be on the basis of sufficiently alleged wrongful overt acts. The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all.” Shope v. Boyer, 268 N.C. 401, 405, 150 S.E. 2d 771, 773-74 (1966).

A claim for damages resulting from a conspiracy exists where there is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way, and, as a result of acts done in furtherance of, and pursuant to, the agreement, damage occurs to the plaintiff. Dickens v. Puryear, 302 N.C. 437, 276 S.E. 2d 325 (1981); Burton v. Dixon, 259 N.C. 473, 131 S.E. 2d 27 (1963). In such a case, all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement. Burton, supra.

In the present case, plaintiff has alleged that defendants Erby and Wilson conspired to defraud her in order to obtain ownership of the newspaper. She has also alleged that each of them committed certain specific overt acts by which she was defrauded and, as a result of which, she was damaged. These allegations are sufficient to allege a claim for damages caused by acts committed pursuant to a conspiracy. See Burton, supra. It was error for the trial court to dismiss the claim and strike the allegations of conspiracy from the amended complaint.

The order appealed from is reversed and this cause is remanded to the Superior Court, Caldwell County for further proceedings.

Reversed and remanded.

Judges Parker and Cozort concur.