Noell v. Winston, 51 N.C. App. 455 (1981)

April 7, 1981 · North Carolina Court of Appeals · No. 8015SC783

51 N.C. App. 455

F. LLOYD NOELL v. BARRY T. WINSTON, ADAM STEIN, J. KIRK OSBORN, LUNSFORD LONG, and DOUG HARGRAVE

No. 8015SC783

(Filed 7 April 1981)

Attorneys at Law § 7- deletion of name from indigent defendant appointment list - failure to state claim for damages

Plaintiff attorney’s allegations that defendant members of a county Bar Association committee had deleted plaintiffs name from indigent defendant appointment lists and that the District Bar had not adopted a plan authorizing defendants to formulate rules for appointment of counsel failed to state a claim for damages based on a denial of due process or trespass against plaintiffs property rights under G.S. 99A-1. Furthermore, where plaintiff failed 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, the Court of Appeals will not raise such questions on its own initiative. Appellate Rule 28(a).

Appeal by plaintiff from Mills, Judge. Order entered 16 June 1980 in Superior Court, Orange County. Heard in the Court of Appeals 4 March 1981.

Plaintiff, a licensed attorney practicing in Orange County, filed a complaint alleging that he had received a letter dated 21 November 1979 from defendant Winston advising him that an Orange County Bar Association Committee, of which the individual defendants are members, had deleted plaintiffs name from all lists for appointment of counsel in indigent cases effective 1 December 1979. The plaintiff further alleged that the legislature enacted statutes in 1969 requiring the North Carolina State Bar Council to make rules and regulations relating to the assignment of counsel for indigent defendants (see N.C. Gen. Stat. § 7A-459); that pursuant to this statutory authority, the Bar Council adopted such regulations (Appendix VIII of Volume 4A of the General Statutes); that since the adoption of those regulations, the plaintiffs name has appeared on the attorney list for indigent appointments; that the representation of indigent criminal defendants constituted a substantial part of the plaintiffs law practice; and that the District 15-B Bar has never adopted a plan authorizing the defendants to formulate rules for appointment of counsel. The plaintiff also alleged that the defendants’ actions resulted in the plaintiffs name being removed from all appointment lists for indigent defendants; that those actions constituted wrongful and malicious interference with plaintiffs right to pursue the practice of law, were done without any lawful excuse, and were contrary to the North Carolina State Bar Council’s rules and regulations; and that those actions have permanently damaged plaintiffs law practice.

Plaintiff sought to recover jointly and severally from the defendants, $100,000.00 in actual damages, $500,000.00 in punitive damages, and costs. Defendants moved to dismiss the complaint, pursuant to N.C. Gen. Stat. § 1-1A, Rule 12(b)(6), for failure to state a claim for relief. The court granted that motion and plaintiff appealed.

Graham & Cheshire by Lucius M. Cheshire, for the plaintiff - appellant.

Manning, Fulton & Skinner by Howard E. Manning, for the defendants-appellees.

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.