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NCSU ARE 306 - ANTHONY DOVE, Plaintiff v. NICHOLAUS HARVEY

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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative. ANTHONY DOVE, Plaintiff v. NICHOLAUS HARVEY, (correct: “Nicholas E. Harvey, Sr.”), Defendant NO. COA04-477 Filed: 1 March 2005 Appeal by plaintiff from an order entered 12 January 2004 by Judge Russell J. Lanier, Jr. in Lenoir County Superior Court. Heard in the Court of Appeals 1 December 2004. Anthony Dove, plaintiff-appellant, pro se. Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by Thomas H. Morris and Kimberly A. Connor, for defendant- appellee. HUNTER, Judge. Anthony Dove (“plaintiff”) presents the following issues for our consideration: (I) Did the trial court erroneously dismiss his complaint against his criminal trial attorney pursuant to N.C.R. Civ. P. 12(b)(6), and (II) did the trial court violate plaintiff's due process rights by precluding plaintiff from obtaining discovery. After careful review, we affirm the order below. In October 1999, Nicholaus Harvey (“defendant”) was court appointed to represent plaintiff in a first degree murder case in which the State was seeking the death penalty. Plaintiff was convicted of first degree murder, sentenced to life imprisonment, and his conviction and sentence was affirmed by this Court in 2002. See State v. Dove, 153 N.C. App. 524, 570 S.E.2d 153 (2002) (unpublished). Plaintiff alleges that prior to trial he informed defendant that he did not want defendant's legal representation if he had been having an affair with a particular married woman. According to plaintiff's complaint, defendant had been assaulted by the married woman's husband. This was of concern to plaintiff because the State contended plaintiff murdered his wife's boyfriend. Defendant denied the rumors and indicated he would zealously represent plaintiff. Plaintiff contends defendant committed several errors during the trial in order to help secure his conviction. He contends defendant should have sought a special venire due to pretrial publicity, that defendant failed to adequately cross-examine key State witnesses, and that defendant failed to consult with plaintiff and defendant's co-counsel regarding trial strategy. After the trial, plaintiff alleges he became aware of an affair between defendant and the assistant district attorney prosecuting his case. He alleges defendant's affair with the assistant district attorney caused defendant to intentionally seek plaintiff'sconviction by not zealously representing plaintiff. Plaintiff also alleges defendant lied to plaintiff when he stated he was not having an affair with a married woman, who was not the assistant district attorney. Based upon the alleged misrepresentations and defendant's conduct during trial, plaintiff filed a civil complaint against defendant on 22 September 2003. In his complaint, plaintiff brought a claim for civil conspiracy, breach of fiduciary duty, negligence, and gross negligence. Defendant moved to dismiss plaintiff's complaint, and on 12 January 2004, the trial court dismissed plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Plaintiff appeals. A motion to dismiss for failure to state a claim upon which relief may be granted challenges the legal sufficiency of a pleading. Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 316-17, 551 S.E.2d 179, 181, per curiam affirmed, 354 N.C. 568, 557 S.E.2d 528 (2001). In ruling on a motion to dismiss under Rule 12(b)(6), a court must determine whether, taking all allegations in the complaint as true, relief may be granted under any recognized legal theory. Taylor v. Taylor, 143 N.C. App. 664, 668, 547 S.E.2d 161, 164 (2001). A complaint may be dismissed for failure to state a claim if no law supports the claim, if sufficient facts to make out a good claim are absent, or if a fact is asserted that defeatsthe claim. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 225, 517 S.E.2d 406, 413 (1999). [1] Plaintiff seeks damages from his criminal trial attorney for acts and omissions that allegedly occurred during his capital first degree murder trial. According to plaintiff's allegations, defendant did not zealously represent plaintiff due to his alleged affair with the prosecuting attorney. Specifically, defendant did not adequately cross-examine the State's key witnesses, did not consult with co-counsel and plaintiff regarding key strategical decisions, and did not request a special venire. Thus, plaintiff brought claims of civil conspiracy, breach of fiduciary duty, negligence, and gross negligence against defendant. We first note, however, that there is not a separate civil action for civil conspiracy in North Carolina. See Shope v. Boyer, 268 N.C. 401, 404-05, 150 S.E.2d 771, 773-74 (1966); Fox v. Wilson, 85 N.C. App. 292, 300, 354 S.E.2d 737, 742-43 (1987). Rather: “In civil conspiracy, recovery must be on the basis of sufficiently alleged wrongful overt acts. The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all.” Fox, 85 N.C. App. at 301, 354 S.E.2d at 743 (citation omitted); see also Norman v. Nash Johnson & Sons' Farms, Inc., 140 N.C. App. 390, 416, 537 S.E.2d 248, 265 (2000) (citation omitted) (stating that “[i]n order to state a claim for civil conspiracy, 'a complaint must allege a conspiracy, wrongful acts done by certain of the alleged conspirators, and injury'”). In this case, plaintiff seeks damages for the alleged wrongful acts and omissions committed bydefendant in furtherance of the conspiracy with the prosecutor. Plaintiff's claim for civil conspiracy fails and was properly dismissed for two reasons. First: A threshold requirement in any cause of action for damages caused by acts committed pursuant to a conspiracy must be the showing that a conspiracy in fact existed. The existence of a conspiracy requires proof of an agreement between two or morepersons. Although civil liability for conspiracy


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NCSU ARE 306 - ANTHONY DOVE, Plaintiff v. NICHOLAUS HARVEY

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