Noell v. Winston

276 S.E.2d 766, 51 N.C. App. 455, 1981 N.C. App. LEXIS 2258

• Court: Court of Appeals of North Carolina
• Decided: April 7, 1981
• Docket: No. 8015SC783
• Status: Published

Opinion

MARTIN (Robert M.), Judge.

Plaintiffs sole assignment of error is that Judge Mills erred in allowing defendants’ motion to dismiss the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief could be granted. For reasons stated below, we affirm the action of the trial court in dismissing the complaint.

A complaint is sufficient to withstand a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and the allegations contained therein are sufficient to give the defendant sufficient notice of the nature and basis of the plaintiffs claim to enable him to answer and prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). For purposes of the motion, the allegations of the complaint must be treated as true. Presnell v. Pell, 298 N.C. 715, 260 S.E. 2d 611 (1979).

In their appellate brief, defendants argue that “plaintiffs complaint fails to state a claim for relief in that it pleads no recognized, or even recognizable, cause of action.” If there is an absence of law to support a claim of the sort made, the complaint is properly dismissed pursuant to Rule 12(b)(6). Snyder v. Freeman, 300 N.C. 204, 266 S.E. 2d 593 (1980).

In his appellate brief, plaintiff attempts to give two theoretical bases for the relief sought: (1) denial of his constitutional right of due process and (2) actionable trespass against plaintiffs property rights under N.C. Gen. Stat. § 99A-1. For neither of these two theories would the facts pleaded support a recovery. Plaintiff did not allege any governmental action. The constitutional provisions guaranteeing due process of law act to prohibit any state action which deprives an individual of due process. Likewise, plaintiff has failed to allege any facts which would entitle him to recovery of damages for interference with his property rights under N.C. Gen. Stat. § 99A-1. That statute created a right of action in the owner, his agent or a bailee of stolen property for recovery of damages from one who is criminally guilty of receiving stolen property. Russell v. Taylor, 37 N.C. App. 520, 246 S.E. 2d 569 (1978).

We are aware that many jurisdictions recognize a cause of action for interference with a business relationship or expectancy of an attorney, Annot., 26 A.L.R. 3d 679 (1969); 45 Am. Jur. 2d Interference § 1, et seq. (1969); W. Prosser, Handbook of the Law of Torts § 130 (4th ed. 1971), although we have been unable to find any authority in this State recognizing such a cause of action. Plaintiff has not chosen to raise in his appellate brief the questions of whether this State recognizes the tort of interference with the prospective economic advantage of an attorney or whether his complaint alleges sufficient facts to state such a cause of action, and this Court will not raise such questions on its own initiative. Rule 28(a), N.C. Rules App. Proc.

The order of the trial judge allowing defendants’ motion to dismiss the complaint for failure to state a claim upon which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is affirmed.

Affirmed.

Judges Arnold and Hill concur.