Peoples Security Life Insurance Co. v. Hooks
357 S.E.2d 411
N.C. Ct. App.
1987
Check Treatment
*356 JOHNSON, Judge.

Plaintiff argues on appeal that the trial court erred in dismissing both counts of its complaint for failure to state a claim upon which relief may be granted. We disagree.

The test a trial court must apply when ruling on a motion to dismiss a complaint for failure to state a claim upon which relief may be granted is whether the pleading, when liberafly construed, is legally sufficient. E.g., Fowler v. Williamson, 39 N.C. App. 715, 251 S.E. 2d 889 (1979). “To prevent a Rule 12(b)(6) dismissal, a party must (1) give sufficient notice of the events on which the claim is based to enable the adverse party to respond and prepare for trial, and (2) ‘state enough to satisfy the substantive elements of at least some legally recognized claim.' ” Hewes v. Hewes, 61 N.C. App. 603, 604, 301 S.E. 2d 120, 121 (1983) (emphasis supplied) (quoting Orange County v. Dep’t of Transportation, 46 N.C. App. 350, 378-79, 265 S.E. 2d 890, 909 (1980)). A dismissal pursuant to Rule 12(b)(6), N.C. Rules Civ. P. is proper when the complaint reveals on its face that some fact essential to plaintiff s claim is missing. Schloss Outdoor Adv. Co. v. The City of Charlotte, 50 N.C. App. 150, 272 S.E. 2d 920 (1980).

Count I

In the case suh judice Count I of plaintiffs complaint purports to state tortious interference with contract as a claim for relief. There are no cases reported in the state of North Carolina wherein a North Carolina Court has recognized a claim for hiring or recruiting another employer’s employee whose employment contract is terminable at will. To the contrary, two Supreme Court opinions stand for the opposite of such a proposition. See Haskins v. Royster, 70 N.C. 601 (1874). See also Morgan v. Smith, 77 N.C. 37 (1877).

Plaintiff relies upon Childress v. Abeles, 240 N.C. 667, 84 S.E. 2d 176 (1954) and Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E. 2d 282 (1976). Although both Smith and Childress involved claims based upon malicious interference with employment contracts terminable at will, neither case was decided in the context of a competitive business setting wherein a competitor recruited the competition’s employees whose contracts were terminable at will. We decline to extend the Supreme Court’s holdings in Smith and *357 Childress to the distinguishable facts in the case sub judice. The trial court did not err in dismissing plaintiffs complaint for failure to state a claim upon which relief may be granted.

Count II

Count II of plaintiffs complaint purports to state breach of an employment contract as a claim for relief. After thoroughly reviewing the pleadings we fail to find any factual allegations to support a claim for a breach of defendant’s employment contract with plaintiff.

The pertinent contractual provision that plaintiff claims defendant breached is as follows:

District manager shall thereafter for a period of one year refrain from further solicitation or servicing of policyholders of the Company or F & C of any district to which District Manager has been assigned, or in any way interfering with existing policies.

Plaintiff, in its complaint, did not allege that defendant solicited or serviced any of plaintiffs policyholders. There were no allegations that any of plaintiffs former agents solicited or serviced any of plaintiffs policyholders. The only allegation with which plaintiff attempted to support its claim for breach of the non-competition covenant was that due to the departure of its employees it was left “without adequate means” to service its existing policyholders. We hold that Count II of plaintiffs complaint fails to allege facts sufficient to state a claim upon which relief may be granted. Hewes, supra.

We conclude that the trial court did not err in dismissing plaintiffs complaint for failure to state a claim upon which relief may be granted.

Affirmed.

Judges Arnold and Parker concur.