Newton v. Whitaker

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 [114] ly 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 [115] out 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.