Fox v. Wilson

• Decision Date: 21 April 1987
• Docket Number: No. 8625SC924,8625SC924
• Citation: 354 S.E.2d 737,85 N.C.App. 292
• Parties: Frances A. FOX v. J. Bradley WILSON, Sam Erby, Jr., and Carpenter, Bost, Wilson and Cannon, P.A., A Professional Corporation.
• Court: North Carolina Court of Appeals

Page 737

354 S.E.2d 737

85 N.C.App. 292

Frances A. FOX v. J. Bradley WILSON, Sam Erby, Jr., and Carpenter, Bost Wilson and Cannon, P.A., A Professional Corporation.

No. 8625SC924.

Court of Appeals of North Carolina.

April 21, 1987.

Wilson and Palmer, P.A. by W.C. Palmer, Lenoir, for plaintiff-appellant.

Sigmon, Clark and Mackie by Jeffrey T. Mackie, Hickory, for defendant-appellee, Sam Erby, Jr.

Patton, Starnes, Thompson & Aycock, P.A. by Thomas M. Starnes, Morganton, for defendants-appellees, J. Bradley Wilson and Carpenter, Bost, Wilson and Cannon, P.A.

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 plaintiff's 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 immediate 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 plaintiff's 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 plaintiff's 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 plaintiff's 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...