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State v. Stockton5/19/1998
ed to exist or defaulted on its legal fees had defendants behaved in accordance with the applicable standard of care.
Although Count III, the facilitating fraud claim, set out allegations that defendants' outstanding legal fees would not be paid if the loan transactions did not occur, these may not be fairly considered as incorporated into Count II of plaintiff's complaint. The latter expressly provided that " he allegations contained in numbered paragraphs 1-98 are incorporated" into Count II, which ended at paragraph 103. The allegations in Count III to the effect that defendants sought a benefit were contained in paragraph 106 of plaintiff's complaint. The complaint thereby expressly provided that the allegations contained in paragraphs 104-115 of the complaint were not incorporated into Count II. Cf. Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624 (1973) (" contract . . . encompasses not only its express provisions but also all such implied provisions as are necessary to effect the intention of the parties unless express terms prevent such inclusion"); Board of Education v. Dickson, 235 N.C. 359, 361, 70 S.E.2d 14, 17 (1952) (" meanings [of statutes] are to be found in what they necessarily imply as much as in what they specifically express").
Therefore, because Count II lacked any allegation that defendants sought a benefit to themselves through the alleged transactions, it fails to state a claim for constructive fraud. Accordingly we hold the trial court did not err in dismissing this claim.
III. Facilitating Fraud
Plaintiff's complaint characterized the third claim set out therein as "facilitating fraud." A cause of action for facilitation of fraud, a type of conspiracy, has been recognized in this jurisdiction. Nye v. Oates, 96 N.C. App. 343, 346-47, 385 S.E.2d 529, 531-32 (1989). When a cause of action lies for injury resulting from a conspiracy,
all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.
Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987).
However, upon careful review, we conclude plaintiff's Count III, denominated "Facilitating Fraud," constituted in sum an extension of plaintiff's negligence claim set forth in Count I, by alleging essentially a "negligence or professional malpractice claim." See Sharp, 113 N.C. App. at 597, 439 S.E.2d at 792 (plaintiff's fraud claims as alleged failed to meet particularity requirements for allegation of fraud and constituted "nothing more than claims for negligence"), and Childress v. Hayes, 77 N.C. App. 792, 795, 336 S.E.2d 146, 148 (plaintiff's breach of fiduciary duty claim essentially comprised "a negligence or professional malpractice claim"), disc. review denied, 316 N.C. 375, 342 S.E.2d 892 (1986). Therefore, because we have held plaintiff's negligence claim in Count I was barred by the applicable statute of limitations, the claim alleged in Count III of the complaint is likewise barred.
IV. "Breach of Duty of Loyalty"
Plaintiff's final claim, directed at defendant Iseman, was denominated "Breach of Duty of Loyalty." Plaintiff alleged Iseman, whose association with Petree terminated at some point following the Googe loan transactions, undertook to represent Peterson and Shugart when ILA later filed suit against the two regarding the allegedly fraudulent loans. Plaintiff's complaint maintained:
ILA has been damaged as a result of the conduct of the Defendant Iseman, in that Shugart and Peterson have been assisted in resisting the claims of ILA by Iseman, and his new firm, who presumably are drawing upon confidential inform
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