ANTHONY DOVE,
Plaintiff,
v. Lenoir County
No. 03 CVS 1157
SONYA S. DAVIS,
Defendant.
Anthony Dove, pro se.
William D. Spence, for defendant-appellee.
MARTIN, Chief Judge.
The sole issue on appeal is whether the trial court erred in
dismissing plaintiff's complaint pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(6) for failure to state a claim upon which relief
can be granted. For the reasons discussed herein, we affirm.
Plaintiff's complaint alleges that defendant Davis, an
attorney, represented him in district court on a misdemeanor charge
for assaulting Victor Williams and that attorney Annette Strickland
represented Victor Williams in the assault case. Plaintiff further
alleged that he was subsequently tried for the first degree murder
of Victor Williams. Plaintiff placed defendant Davis on his
witness list for the murder trial and the State placed attorneyStrickland on its witness list. The State called attorney
Strickland, who testified about the assault case. Plaintiff
alleges that on one occasion during the trial, defendant Davis sat
next to attorney Strickland, “directly behind plaintiff and in
direct view of the jury” and on another occasion, defendant Davis
sat with attorney Strickland, “directly behind the family members
of Victor Williams.” Based on these allegations, plaintiff
claimed: (1) defendant Davis breached her fiduciary duty to
plaintiff because her “acts [] were a conflict of interest to her
previous role of counsel for [p]laintiff;” (2) defendant Davis
conspired with the assistant district attorney to influence the
jury against plaintiff; (3) defendant Davis was negligent in
committing certain acts during plaintiff's murder trial; and (4)
defendant Davis committed malicious acts which entitled him to
relief for gross negligence.
Defendant Davis moved to dismiss the complaint pursuant to
N.C.R. Civ. P. Rule 12(b)(6) for failure to state a claim upon
which relief can be granted. Defendant Davis asserted that she did
not represent plaintiff at his murder trial and that no attorney
client relationship existed between them at the time of the murder
trial. On 22 March 2004, the trial court granted the motion and
dismissed with prejudice plaintiff's claims for “Breach of
Fiduciary Duty”, “Conspiracy”, “Negligence” and “Gross Negligence.”
On appeal, plaintiff contends the trial court in dismissing
plaintiff's case against defendant Davis for failure to state a
claim upon which relief could be granted. We disagree. A motion to dismiss “for failure to state a claim upon which
relief may be granted challenges the legal sufficiency of the
pleading.” Walker v. Sloan, 137 N.C. App. 387, 392, 529 S.E.2d
236, 241 (2000). In ruling on a motion to dismiss under Rule
12(b)(6), a court must determine if “as a matter of law, the
allegations of the complaint, treated as true, are sufficient to
state a claim upon which relief may be granted” according to some
legal theory. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C.
App. 217, 225, 517 S.E.2d 406, 413 (1999) (citations omitted).
In the present case, plaintiff asserted claims against
defendant Davis for breach of fiduciary duty, conspiracy,
negligence and gross negligence. “For a breach of fiduciary duty
to exist, there must first be a fiduciary relationship between the
parties.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707
(2001). Our Supreme Court has held that a fiduciary relationship
exists when one with an equitable duty to act in good faith has
been granted “a special confidence” regarding the other's interest,
especially when the recipient of the special confidence is in a
position to dominate and influence the other. Id. at 651, 548
S.E.2d at 707-08.
Taking the allegations raised in his complaint as true,
plaintiff fails to allege facts and circumstances sufficient to
show that a fiduciary relationship existed between the parties.
Plaintiff does not allege any act by defendant Davis, which
resulted in her having taken advantage of a position of confidence
to plaintiff's detriment. Thus, plaintiff has failed to provideevidence of any agreement or transaction between him and defendant
Davis which would constitute the basis for the breach of fiduciary
duty. Because a specific agreement or transaction between
plaintiff and defendant Davis is absent, plaintiff failed to allege
a cause of action for breach of fiduciary duty.
Although there is no recognized action for civil conspiracy in
North Carolina, Fox v. Wilson, 85 N.C. App. 292, 300, 354 S.E.2d
737, 743 (1987), our law nevertheless permits an action for
wrongful acts committed by persons pursuant to a conspiracy.
Henderson v. LeBauer, 101 N.C. App. 255, 260-61, 399 S.E.2d 142,
145, disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991).
This claim requires the showing of an agreement between two or more
persons to do an unlawful act or to do a lawful act in an unlawful
way that results in damages to the claimant. Henderson, 101 N.C.
App. at 260-61, 399 S.E.2d at 145. Here, plaintiff has not
forecast sufficient evidence that an agreement was reached between
defendant Davis and attorney Strickland to perform the acts of
which he complains. Accordingly, the trial court properly
dismissed plaintiff's cause of action for conspiracy.
To properly allege a cause of action for negligence, the
plaintiff must allege: (1) duty, (2) breach of duty, (3) proximate
cause and (4) damages. Southerland v. Kapp, 59 N.C. App. 94, 95,
295 S.E.2d 602, 603 (1982). When an act or conduct is done
purposely and with knowledge that such act is a breach of duty to
others, that is, with a conscious disregard of the safety of
others, it rises to the level of gross negligence. Yancey v. Lea,354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001). In a legal
malpractice action based upon an attorney's negligence, the
plaintiff must allege and prove “(1) that the attorney breached the
duties owed to his client . . . and that this negligence (2)
proximately caused (3) damage to the plaintiff.” Rorrer v. Cooke,
313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985). Assuming arguendo
that defendant Davis breached a duty to plaintiff by sitting with
attorney Strickland, plaintiff has failed to show how defendant's
conduct proximately caused actual injury to plaintiff. Because
plaintiff failed to allege the requisite proximate cause,
plaintiff's complaint is inadequate to allege a necessary element
of plaintiff's negligence claim. Having failed to allege a claim
for negligence, plaintiff's claim for gross negligence on the part
of defendant also fails. The trial court therefore properly
dismissed plaintiff's claims for negligence and gross negligence.
The order dismissing plaintiff's complaint pursuant to N.C.
Gen. Stat. 1A-1, Rule 12(b)(6) is affirmed.
Affirmed.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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