Court of Appeals of North Carolina, 1986

Newton v. Whitaker

Newton v. Whitaker
Court of Appeals of North Carolina · Decided October 21, 1986 · Martin, Parker, Phillips
83 N.C. App. 112; 349 S.E.2d 333; 1986 N.C. App. LEXIS 2662

Newton v. Whitaker

Opinion of the Court

PHILLIPS, Judge.

The gist of plaintiffs claim is that the several defendants conspired to force him out of the automobile dealership, which he operated and partially owned, by terminating the credit arrangements under which the dealership did business. The sole question presented by plaintiffs appeal is whether the complaint sufficient*114ly states a claim of civil liability for conspiracy, a recoverable tort under our law. If it does the unfair and deceptive business practice claim, also asserted in the complaint, can rest thereon, at least at this stage of the case; but if it does not both claims necessarily fail, since the unfair or deceptive business practice claim has no other basis. In this state a civil claim for conspiracy is governed by the following legal principles:

A conspiracy is generally defined to be “an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.” Holt v. Holt, 232 N.C. 497, 61 S.E. 2d 448 (1950). (Other citations omitted.)
In the Holt case, supra, in opinion by Ervin, J., this Court held that “to create civil liability for conspiracy, a wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object. The gravamen of the action is the resultant injury, and not the conspiracy itself.”

Muse v. Morrison, 234 N.C. 195, 198, 66 S.E. 2d 783, 784-85 (1951).

The defendant appellees contend and the judge below apparently held that no recoverable conspiracy has been alleged because the defendants Whitaker had a right to stop guaranteeing the dealership’s credit and GMAC had a right to stop financing its purchase of new cars and General Motors Corporation had a right to stop selling cars and parts to the dealership on credit. But the complaint, all that we have to go by at this stage, does not so state; and liberally construed, as the spirit of our rules requires, Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E. 2d 494 (1974), it cannot be interpreted to so imply. Nor is the complaint fatally deficient because it does not expressly state that the acts which allegedly damaged plaintiff were wrongful. Under our modern practice only claims for fraud, duress, libel and slander have to be pleaded with any particularity at all. Rule 9, N.C. Rules of Civil Procedure. In all other instances the complaint is sufficient if it gives “the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, . . .” Rule 8, N.C. Rules of Civil Procedure. Plaintiffs complaint provides that notice, in our opinion. It lists the acts that allegedly forced him *115out of the business and alleges that those acts were done pursuant to a conspiracy; which in effect is an allegation that the acts were wrongful, since a conspiracy imparts wrongful conduct. Thus, defendants have been notified of both the factual and legal basis for the claim — all that they need to know in order to answer the complaint and test its allegations through discovery. Further allegations are not required. The unlikelihood of plaintiff being able to prove that the acts which allegedly injured him were wrongful is irrelevant at this juncture; as a complaint is dismiss-able for want of proof under Rule 12(b)(6), N.C. Rules of Civil Procedure, only when it appears that the proof needed is beyond the realm of possibility. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). And such does not appear in this instance.

Vacated and remanded.

Judge PARKER concurs. Judge Martin dissents.

Concurring Opinion

Judge Martin

dissenting.

Notwithstanding the liberal construction accorded pleadings by our Rules of Civil Procedure, the allegations of a complaint must be sufficient to state, at least, the substantive elements of some legally recognized claim. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979); Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). Otherwise, it is subject to dismissal pursuant to G.S. 1A-1, Rule 12(b)(6). Id. “For the purpose of the motion, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of facts are not admitted.” Sutton, supra, at 98, 176 S.E. 2d at 163. In other words, the sufficiency of the complaint must be judged by the facts alleged, rather than by the conclusions of the pleader.

The substantive elements necessary to support a civil claim for damages caused by a conspiracy consist of (1) an agreement between two or more persons, (2) to commit an unlawful act or to accomplish a lawful purpose in an unlawful manner, and (3) the commission, pursuant to the scheme and in furtherance of its objective, of some act or acts resulting in damage to the plaintiff. Evans v. GMC Sales, 268 N.C. 544, 151 S.E. 2d 69 (1966). The com*116plaint in the present action is deficient in two respects. First, there is no factual allegation that General Motors Corporation (GM) or General Motors Acceptance Corporation (GMAC), or anyone acting on behalf of either of them, entered into any agreement or combination among themselves or with the other defendants to take any action with respect to Empire Oldsmobile-Cadillac, Inc. or plaintiff. Nor may such an agreement be reasonably inferred .from the facts alleged. According to the allegations of the complaint, all of the acts taken by GM and by GMAC were taken in response to information provided them by defendants Whitaker concerning the financial instability of the dealership, rather than by reason of any agreement to take any action to accomplish some wrongful purpose. Thus, the primary allegation upon which the majority bases its opinion, that of “conspiracy,” is in reality nothing more than a conclusion or deduction which is not warranted from the facts which plaintiff has alleged.

Second, even if the complaint was sufficient to allege an agreement, no facts alleged in the complaint would indicate that the acts which GM and GMAC are alleged to have taken, i.e., the cancellation of credit to Empire, or the means by which those acts were accomplished, were unlawful. “An agreement to do a lawful act cannot constitute a conspiracy regardless of the motives of the parties. . . .” Evans, supra at 546, 151 S.E. 2d at 71.

Since, in my view, the complaint is insufficient to allege the substantive elements of a claim against either GM or GMAC for damages resulting from a conspiracy, I vote to affirm the trial court’s dismissal of plaintiffs claim against both GM and GMAC.

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