The full case caption appears at the
end of this opinion. TIMMONS-GOODSON, Judge. Brenda W. Walker (“Walker”), Stanley G. Laborde (“Laborde”), and Lawrence J. Verny (“Verny”) (collectively,”plaintiffs”)instituted an action on 23 December 1998 against Maceo K. Sloan (“Sloan”), Justin F. Beckett (“Beckett”),Sloan Financial Group, Inc. (“SFG” or “SFG/NCM”), NCM Capital Management Group, Inc. (“NCM” or “SFG/NCM”),New Africa Advisers, Inc. (“New Africa”), Peter J. Anderson (“Anderson”), Morris Goodwin, Jr. (“Goodwin”), and American Express Financial Advisors, Inc. (“American Express”) alleging claims for: (i) tortious interference with prospective economic advantage, (ii) unfair and deceptive trade practices, (iii) constructive fraud, (iv) fraud, (v) breach of contract, (vi)breach of fiduciary duty, and (vii) violation of the North Carolina Wage and Hour Act. On 18 February 1998, Sloan,Beckett, SFG, NCM, and New Africa (collectively, “the Sloan defendants”) filed an answer and motion to dismiss plaintiffs’claims for tortious interference with prospective economic advantage, unfair and deceptive trade practices, constructive fraud, and breach of fiduciary duty under Rule 12(b)(6) of the Rules of Civil Procedure. Additionally, Anderson, Goodwin,and American Express (collectively, “the American Express defendants”) moved to dismiss the claims brought againstthem–unfair and deceptive trade practices, constructive fraud, and breach of fiduciary duty– pursuant to Rule 12(b)(6). On 14 May 1998, the trial court heard arguments on the motions, and during the course of the hearing, plaintiffs moved for leave to amend their complaint. The court allowed plaintiffs leave to amend the claims for unfair and deceptive trade practices and breach of fiduciary duty. However, by order dated 10 June 1998, the trial court, in accordance withRule 12(b)(6), dismissed plaintiffs’ claims for tortious interference with prospective economic advantage and constructive fraud, as well as all claims asserted against New Africa. Plaintiffs filed an amended complaint on 3 June 1998. On 16 June 1998, the Sloan defendants filed a “Renewed Partial Motion to Dismiss” plaintiffs’ claims for unfair and deceptive trade practices and breach of fiduciary duty. The American Express defendants likewise moved to dismiss all claims pertaining to them. The Sloan defendants and the American Expressdefendants also moved to strike portions of plaintiffs’ amended complaint, i.e., new allegations concerning those claims that the court had previously dismissed. In an order dated 17 July 1998, the trial court struck paragraphs 60, 65, 87 and 93 ofthe amended complaint and all references to those paragraphs. Then, on 17 August 1998, the trial court entered an order dismissing plaintiffs’ claims for unfair and deceptive trade practices and breach of fiduciary duty. Plaintiffs filed timely noticesof appeal from the 10 June, 17 July, and 17 August 1998 orders. On 6 November 1998, the trial court found that the three orders affected a substantial right, and in the alternative, certified them as final judgments pursuant to Rule 54(b) of the Rulesof Civil Procedure. The amended complaint alleges that plaintiffs are senior-level offices of NCM, a registered investment advisory firm that provides investment supervisory services to its clients in exchange for a percentage of the assets under management. In 1991,Sloan, Beckett, and American Express formed SFG, a minority-owned holdingcompany incorporated under the laws of North Carolina for the purpose of acquiring NCM from North Carolina Mutual Life Insurance Company. American Express invested approximately $7,000,000 to fund the acquisition, 60% of which consisted of personal loans to Sloan and Beckett. In connection with the capitalization of SFG/NCM, American Express purchased 40% of the stock. Sloan and Beckett purchased 43% and 17% of the stock, respectively, and both pledged their shares as collateral for the loans from American Express. American Express elected two representatives, Anderson and Goodwin, to serve on the Board of Directors (“the Board”)with Sloan and Beckett. The corporation’s bylaws provided that Sloan was to maintain managing control of the company and that American Express would maintain minority voting status on the Board. However, in the event that Sloan failed to paydividends to American Express for three years, the latter would assume voting control, but not managing control, of SFG/NCM. In December of 1996, Anderson and Goodwin met with Rodney B. Hare, NCM’s Senior Vice President of Marketing and Client Services for the Midwest Region, to discuss their concerns regarding Sloan’s management of NCM. During the meeting, Hare inquired as to whether American Express would be willing to sell its share of SFG/NCM to a group of keyemployees. Goodwin and Anderson responded affirmatively and quoted an expected sale price for the entire company,stating that they could “persuade” Sloan to sell his interest. On 8 and 9 January 1997, American Express conducted anextensive review of SFG/NCM, which uncovered a series of irregular investment practices that could potentially subject thecompany to liability. Following the review, Goodwin approached Hare and said that if an employee group was still interestedin buying SFG/NCM, “we are very interested in talking to you about that.” Relying on the representations of Goodwin andAnderson, a group (“the employee group”) consisting of plaintiffs and five other senior-level executives of NCM was formedwith the objective of procuring an equity partner to join in the buyout of SFG/NCM. On 10 March 1997, the employeegroup met with Sloan and presented him with a formal letter of interest regarding the purchase of SFG/NCM. The employeegroup sent similar letters to the remaining SFG/NCM Board members. In anticipation of the purchase, the employee group began negotiations with two potential funding sources–the EdgarLomax Company (“Lomax”) in Springfield, Virginia, and Loomis Sayles & Company (“Loomis”) in Bloomfield, Michigan.Representatives of both companies met with the SFG/NCM Board during a 21 March 1997 meeting. The Board expressedits interest in selling the company to the employee group and requested that Randall Eley of Lomax complete a standard formregarding the proposed deal, which was to be forwarded to Eley within 24 hours of the meeting. Goodwin and Andersonalso prepared a letter for Sloan to send to Lomax. Sloan delayed in sending the materials, and when Lomax finally receivedthe documents, their contents were different from what Goodwin and Anderson had drafted. Furthermore, without priorapproval of theBoard, Sloan communicated to Eley that he would only consider a cash deal, rather than theindustry-standard installment sale. Following the 21 March 1997 meeting, Sloan and Beckett terminated several members of the employee group, i.e.,Walker, Hare, Verny, and McCaskill. Despite protests from the group, the SFG/NCM Board took no action to interveneand stop the terminations. The instability brought about by the firings impaired the employee group’s negotiations with thefunding sources, and as a result, they withdrew their offers to finance the purchase. Initially, we note that the dismissal orders from which plaintiffs appeal are interlocutory, as they do not dispose of all claimsbetween all parties. See Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309 (1999)(order isinterlocutory if it does not dispose of entire controversy between the parties). Ordinarily, interlocutory orders are notimmediately appealable. Id. Direct appeal may be had from an interlocutory order, however, if deferring the appeal will injurea substantial right of one or more parties. Abe v. Westview Capital, 130 N.C. App. 332, 502 S.E.2d 879 (1998). The original and amended complaints demonstrate that plaintiffs’ many claims against defendants involve related issues offact. This Court has held that although the right to avoid multiple trials is not, itself, a substantial one, the right to preventseparate trials of the same factual issues is, indeed, asubstantial right. Davidson v. Knauff Ins. Agency, 93 N.C. App. 20,376 S.E.2d 488 (1989). The following rationale applies: [W]hen common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claimshave been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal iseventually successful. This possibility in turn “creat[es] the possibility that a party will be prejudiced by different juries inseparate trials rendering inconsistent verdicts on the same factual issue.” Id. at 25, 376 S.E.2d at 491 (second alteration in original) (quoting Green v. Duke Power Co., 305 N.C. 603, 608, 290S.E.2d 593, 596 (1982)). Accordingly, we conclude that the present orders of dismissal are properly before us, becausethey affect a substantial right of plaintiffs which might be lost if we deny immediate review. That said, we move now to ouranalysis of plaintiffs’ assignments of error. Plaintiffs first assign as error the order dismissing their cause of action against the Sloan defendants for tortious interferencewith prospective economic advantage. Plaintiffs contend that the averments made in their original complaint concerningSloan’s and Beckett’s conduct with regard to the employee group’s efforts to secure financing from Lomax or Loomis weresufficient to state such a claim. We cannot agree. A motion to dismiss a complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be grantedchallenges the legal sufficiency of the pleading. Kane Plaza Associates v. Chadwick, 126 N.C. App. 661, 486 S.E.2d 465(1997). Dismissal is warranted “(1) when the face of the complaint reveals that no law supports plaintiff[s'] claim; (2) whenthe face of the complaint reveals that some fact essential to plaintiff[s'] claim is missing; or (3) when some fact disclosed in thecomplaint defeats plaintiff[s'] claim.” Peterkin v. Columbus County Bd. of Educ., 126 N.C. App. 826, 828, 486 S.E.2d733, 735 (1997) (emphasis omitted). In ruling on a Rule 12(b)(6) motion to dismiss, the trial court regards all factualallegations of the complaint as true. Kane Plaza, 126 N.C. App. at 664, 486 S.E.2d at 467. Legal conclusions, however,are not entitled to a presumption of truth. Peterkin, 126 N.C. App. at 828, 486 S.E.2d at 735. An action for tortious interference with prospective economic advantage is based on conduct by the defendants whichprevents the plaintiffs from entering into a contract with a third party. Owens v. Pepsi Cola Bottling Co., 330 N.C. 666,680, 412 S.E.2d 636, 644 (1992). In Coleman v. Whisnant, 225 N.C. 494, 35 S.E.2d 647 (1945), our Supreme Courtstated the following:We think the general rule prevails that unlawful interference with the freedom of contract is actionable, whether itconsists in maliciously procuring breach of a contract, or in preventing the making of a contract when this is done, not in thelegitimate exercise of the defendant[s'] own rights, but with design to injure the plaintiff[s], or gaining some advantage at[their] expense. . . . In Kamm v. Flink, 113 N.J.L., 582, 99 A.L.R., 1, it was said: “Maliciously inducing a person not toenter into a contract with another, which he would otherwise have entered into, is actionable if damage results.” The word”malicious” used in referring to malicious interference with formation of a contract does not import ill will, but refers to aninterference with design of injury toplaintiff[s] or gaining some advantage at [their] expense. 225 N.C. at 506, 35 S.E.2d at 656. Thus, to state a claim for wrongful interference with prospective advantage, the plaintiffsmust allege facts to show that the defendants acted without justification in “inducing a third party to refrain from entering intoa contract with them which contract would have ensued but for the interference.” Cameron v. New Hanover MemorialHospital, 58 N.C. App. 414, 440, 293 S.E.2d 901, 917, disc. review denied and appeal dismissed, 307 N.C. 127, 297S.E.2d 399 (1982). With respect to their claim for tortious interference with prospective economic advantage, plaintiffs’ original complaintalleges the following: 54. A valid business relationship existed between plaintiffs, as members of the employee group, and Edgar Lomax andLoomis Sayles. 55. Plaintiffs reasonably expected that they, as members of the employee group, would contract with either EdgarLomax or Loomis Sayles regarding the purchase of Sloan Financial and/or NCM. 56. Defendants knew of the relationship between plaintiffs and Edgar Lomax and Loomis Sayles and induced EdgarLomax and Loomis Sayles not to contract with plaintiffs. 57. In so doing, defendants acted without justification, not in the legitimate exercise of defendants’ own rights, but withdesign to injure the plaintiffs or to obtain some advantage at their expense. 58. Defendants [sic] actions resulted in actual damage to the plaintiffs. The complaint further alleges that Sloan delayed in sending necessary information to Lomax and informed the lender thathewould only consider a cash deal, rather than an industry-standard installment sale. Plaintiffs aver that these behaviors weremotivated by Sloan’s desire to cause Lomax to withdraw as a potential funding source for the employee group. Additionally,the complaint alleges that Sloan and Beckett terminated several key members of the employee group, causing Lomax tocease negotiations with the group regarding financing. The complaint also relevantly states the following: The motives of Defendants Sloan and Beckett in interfering with plaintiff’s [sic] prospective contractual relations withEdgar Lomax and Loomis Sayles were not reasonably related to the protection of a legitimate business interest of SloanFinancial but were for their own personal benefit, including but not limited to preventing further disclosures of their ownmalfeasance and mismanagement of NCM and Sloan Financial and preventing the repayment of their personal loan toAmerican Express, and were motivated by personal ill will, spite and a desire to retaliate against the employee group forforming an alliance to purchase the company, and for responding to requests for information from the American ExpressBoard members regarding Sloan’s and Beckett’s mismanagement of Sloan Financial and NCM. Plaintiffs contend that in stating their claim for wrongful interference with a prospective economic advantage, they were notrequired to allege that a contract with Lomax or Loomis would have ensued “but for” defendants’ actions. Assumingarguendo that a “but for” allegation was not necessary, plaintiffs were, nonetheless, required to assert some measurabledamages resulting from defendants’ allegedly tortious activities, i.e., what “economic advantage” was lost to plaintiffs as aconsequence ofdefendants’ conduct. Regarding damages, the complaint states only that “Defendants [sic] actions resulted inactual damage to the plaintiffs.” It is unclear from this averment precisely what damages plaintiffs contend they have suffered.Our Supreme Court has stated that “[a] defendant is entitled to know from the complaint the character of the injury for whichhe must answer.” Thacker v. Ward, 263 N.C. 594, 599, 140 S.E.2d 23, 28 (1965). Because plaintiffs have failed tosufficiently plead damages, we conclude that the trial court properly dismissed their claim for tortious interference withprospective economic advantage pursuant to Rule 12(b)(6). With their next assignment of error, plaintiffs argue that the trial court erred in dismissing their claim for unfair anddeceptive trade practices against the Sloan defendants. After careful examination of plaintiffs’ amended complaint, we areconstrained to agree.Under section 75-1.1 of the General Statutes, “[u]nfair methods of competition in or affecting commerce, and unfair ordeceptive acts or practices in or affecting commerce, are declared unlawful.” N.C. Gen. Stat. � 75-1.1(a) (1999). Thestatute defines “commerce” as “all business activities, however denominated.” N.C.G.S. � 75-1.1(b). To state a claim forunfair and/or deceptive trade practices, the plaintiffs must allege that (1) the defendants committed an unfair or deceptive actor practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury totheplaintiffs or to the plaintiffs’ business. Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d47 (1995). “‘A [trade] practice is unfair when it offends established public policy as well as when the practice is immoral,unethical, oppressive, unscrupulous, or substantially injurious to consumers.’” Opsahl v. Pinehurst Inc., 81 N.C. App. 56,69, 344 S.E.2d 68, 76 (1986) (quoting Johnson v. Insurance Co., 300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980)),disc. review dismissed as improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987). Furthermore, “‘[a] party isguilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power orposition.’” Opsahl, 81 N.C App. at 69, 344 S.E.2d at 76 (alteration in original) (quoting Johnson, 300 N.C. App at 264,266 S.E.2d at 622). The question of whether a particular practice is unfair or deceptive is a legal one reserved for the court.Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 282-83, 432 S.E.2d 428, 436 (1993), aff’d percuriam, 339 N.C. 602, 453 S.E.2d 146 (1995).Plaintiffs’ amended complaint alleges that the Sloan defendants violated the Unfair Trade Practices Act by engaging in thefollowing “unfair, unethical, unscrupulous, immoral, and oppressive” activities:67. a. On March 10, 1997 Sloan attempted to break up the employee group immediately upon learning of itsformation by attempting to bribe the portfolio managers into withdrawing from the group by promising them they would be”taken care of” later financially if they disassociated themselves from the group. Sloan’s intent was to keep the employeegroup from buying Sloan Financial. Sloan’s conduct was immoral, illegal, and unscrupulous. b. When Sloan’s overt effort to break up the employee group failed, he turned to other methods designed to keep theemployee group from buying Sloan Financial, including refusing to participate in good faith in due diligence; refusing to sendthe letter drafted by Goodwin and Anderson to Edgar Lomax as instructed; telling Randall Eley of Edgar Lomax that hewould only consider a “cash deal” for the purchase of the entire company when he had absolutely no right or authority to setthe terms of the deal; and finally, terminating the plaintiffs. Sloan’s conduct was immoral and oppressive and constitutes aninequitable assertion of his power or position. The complaint further alleges that Sloan’s acts “were in or affecting commerce” and that they “proximately caused injury tothe plaintiffs, consisting of lost profits, lost wages and other benefits and income, and expenses including attorneys fees.”Plaintiffs also aver that “[SFG], NCM, and New Africa are liable for the acts of Sloan under respondeat superior or agencyprinciples.” We note, in addition, that plaintiffs specifically incorporate prior allegations that Beckett acted with Sloan andpursuant to the same improper motive in terminating members of the employee group. The allegations of Sloan’s (and Beckett’s) misconduct, on their face, point to the kind of bad faith business dealing which, ifproved, could constitute an unfair trade practice within the meaning of section 75.1-1 of the General Statutes. Thus,plaintiffshave successfully stated a claim for unfair trade practices against Sloan and Beckett. The complaint also sufficiently alleges anunfair trade practice claim against SFG and NCM on the basis of respondeat superior. A principal will be liable for the wrongful acts of its agent if the plaintiffs demonstrate the following: the agent’s act [was] (1) expressly authorized by the principal; (2) committed within the scope of the agent’semployment and in furtherance of the principal’s business–when the act comes within his implied authority; or (3) ratified bythe principal. B.B. Walker Co. v. Burns International Security Services, 108 N.C. App. 562, 565, 424 S.E.2d 172, 174 (1993).Ratification is “‘the affirmance by a person of a prior act which did not bind him but which was done or professedly done onhis account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.’” In re Espinosa v.Martin, ___ N.C. App. ___, ___, 520 S.E.2d 108, 111 (1999) (quoting American Travel Corp. v. Central CarolinaBank, 57 N.C. App. 437, 442, 291 S.E.2d 892, 895, disc. review denied, 306 N.C. 555, 294 S.E.2d 369 (1982)(citation omitted)), cert. denied, ___ N.C. ___, ___S.E.2d ___, 2000 WL 284501 (Mar. 2, 2000) (No. 513P99). Toestablish ratification, the plaintiffs must show that the principal “‘had knowledge of all material facts and circumstances relativeto the wrongful act, and that the [principal], by words or conduct, show[ed] an intention to ratify the act.’” Phelps v. Vassey,113 N.C. App. 132, 136, 437 S.E.2d 692, 695 (1993) (second alteration in original) (quoting Brown v. Burlington Indus.,Inc., 93 N.C. App. 431, 437, 378 S.E.2d232, 236 (1989). Ratification “‘may be express or implied, and intent may beinferred from failure to repudiate an unauthorized act[.]‘” Espinosa, ___ N.C. App. at ___, 520 S.E.2d at 111 (quotingAmerican Travel, 57 N.C. App. at 442, 291 S.E.2d at 895) (citation omitted). Plaintiffs’ cause of action against the Sloan defendants for unfair trade practices incorporates, by reference, the followingallegations, in pertinent part: 43. Upon information and belief, Board members Anderson and Goodwin knew that Sloan was delaying in sending thefinancial records, the form, and letter to Randall Eley but failed to intervene to ensure that Sloan acted in the best interests ofSloan Financial. . . . . . .46. Shortly after the April 1 terminations [of Walker and Hare], the employee group asked the Sloan Financial Boardto intervene to stop the terminations because they were adversely affecting the stability and value of the company and wereinterfering with the group’s ability to negotiate the purchase of the company. 47. The Board failed to intervene to stop the terminations. The Board also failed to take any action to ensure that Sloancooperated as directed in due diligence, such as by providing information and assurances as requested to Edgar Lomax. 48. On or about May 1, 1997 Sloan and Beckett terminated Lawrence Verny and Dennis McCaskill, Jr. Sloan’s andBeckett’s intent in terminating Verny and McCaskill was to break up the group and stop the group from contracting withLoomis Sayles or Edgar Lomax. Again, the Board failed to intervene to stop the terminations. These allegations, taken as true, are sufficient to show that theSFG/NCM Board impliedly ratified the allegedly wrongfulactions of Sloan and Beckett. Accordingly, we hold that plaintiffs’ claim for unfair and deceptive trade practices againstSloan, Beckett, SFG, and NCM were adequately plead so as to withstand a challenge under Rule 12(b)(6). The claimagainst New Africa for unfair trade practices was properly dismissed, as the complaint is devoid of any factual allegations tosupport such a claim. Plaintiffs contend that they also stated a cause of action against the American Express defendants under section 75-1.1 ofthe General Statutes. We must disagree. Regarding the American Express defendants, plaintiffs’ amended complaint states as follows: 72. . . . the actions described below had the tendency or capacity to deceive the public and plaintiffs and actuallydeceived plaintiffs, or were unfair to the plaintiffs. a. Goodwin and Anderson deceived the plaintiffs into believing that American Express had control of Sloan Financialand Sloan’s and Beckett’s shares and that American Express would take all steps necessary to effectuate the sale of SloanFinancial to the plaintiffs. b. American Express misrepresented to plaintiffs its intent to sell to the plaintiffs. c. Goodwin and Anderson actively encouraged the plaintiffs to form a group to buy Sloan Financial yet failed todisclose to plaintiffs the results of the review of January 8-9, 1997 as set forth in paragraph 30. d. Goodwin’s and Anderson’s deceptive misrepresentations and omissions caused plaintiffs to incur in excess of$20,000 in attorneys’ fees, costs and otherexpenses related to the formation of the group. e. Goodwin’s and Anderson’s actions were unfair and unethical in that after inducing the plaintiffs’ group to form andexpend a considerable amount of time and money in their efforts to negotiate with the two funding sources, Goodwin andAnderson stood by and did nothing while Sloan intentionally refused to participate in due diligence, then gutted the firm byterminating the plaintiffs. In paragraph 30 of the complaint, plaintiffs contend that the review uncovered a multitude of investment activities by NCMwhich subjected the company to liability for self-dealing and “rais[ed] significant regulatory and liability issues.” The complaintfurther alleges that the actions of Goodwin and Anderson “were in or affecting commerce” and that such actions “proximatelycaused actual injury to the plaintiffs.” Plaintiffs also aver that American Express is liable for the actions of Goodwin andAnderson in that such actions “were taken in the course and scope of their employment with American Express or infurtherance of American Express’s business.” As previously stated, an act is “unfair” within the meaning of section 75-1.1 if the act “‘is immoral, unethical, oppressive,unscrupulous, or substantially injurious to consumers.’” Jones v. Capitol Broadcasting Co., 128 N.C. App. 271, 276, 495S.E.2d 172, 175 (1998) (quoting Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981)). A practice isdeemed to be deceptive if it “‘possess[es] the tendency or capacity to mislead, or creat[es] the likelihood of deception.’”Forsyth Memorial Hospital v.Contreras, 107 N.C. App. 611, 614, 421 S.E.2d 167, 170 (1992) (quoting Overstreet v.Brookland, Inc., 52 N.C. App. 444, 279 S.E.2d 1 (1981)). Recovery will not be had, however, where the complaint failsto demonstrate that the act of deception proximately resulted in some adverse impact or actual injury to the plaintiffs. Millerv. Ensley, 88 N.C. App. 686, 365 S.E.2d 11 (1988). At the outset, we note that plaintiffs’ complaint completely lacks any allegations suggesting that any of the AmericanExpress defendants committed an act or engaged in a practice that could be characterized as “unfair” under section 75-1.1.Similarly, we hold that plaintiffs’ complaint does not allege sufficient facts to show that the American Express defendants weredeceptive in their dealings with the employee group. The statements or representations of which plaintiffs complain are set outas follows: 24. . . . Goodwin and Anderson indicated that American Express would be very interested in selling to an employeegroup, and stated that since Sloan and Beckett had not paid interest in three years thereby not complying with the agreementbetween Sloan, Beckett, and American Express, and in fact were in default under that agreement, that the price at whichAmerican Express would sell the entire company was ten to eleven million dollars. Goodwin and Anderson also indicatedthat if necessary they could “persuade” Sloan to sell his interest. . . . 30. . . . Goodwin further stated to Hare that if the employee group was interested in buying “we are very interested intalking to you about that.” Goodwin assured Hare thatAmerican Express would do what was necessary to make thetransaction happen. . . . We have said that dismissal under Rule 12(b)(6) is appropriate if “the face of the complaint reveals that some fact essentialto plaintiff[s'] claim is missing” or if “some fact disclosed in the complaint defeats plaintiff[s'] claim.” Peterkin, 126 N.C.App. at 828, 486 S.E.2d at 735 (emphasis omitted). Plaintiffs allege, as one basis for their claim of deceptive tradepractices, that the American Express defendants failed to disclose the results of the 8 and 9 January review, i.e., thatSFG/NCM had engaged in various investment practices that subjected the company to potential liability. This fact, even iftaken as true, is not a sufficient basis for plaintiffs’ claim, because their purchase of SFG/NCM was not achieved, and theycannot show any actual injury resulting from the alleged omission. Additionally, plaintiffs complain that they relied to their detriment on Goodwin’s and Anderson’s allegedly fraudulentrepresentations (1) that American Express had control of SFG/NCM, (2) that American Express wanted to sell the companyto the employee group, and (3) that American Express would take all necessary steps to effectuate the sell. The pleading,however, contains allegations which would indicate that Goodwin’s and Anderson’s statements were neither false normisleading. For instance, plaintiffs allege the following facts: 27. . . . On or about January 1, 1997 American Express took control of Sloan Financial and NCM and . . . becauseSloan and Beckett had defaulted on their personal loans from American Express for three years, AmericanExpress as ofJanuary 1, 1997 had actual or de facto control of Sloan’s and Beckett’s shares of Sloan Financial and NCM. . . . 39. . . . Upon information and belief, Goodwin and Anderson instructed Sloan and Beckett to cooperate regarding duediligence and all other steps necessary to effectuate the sell. . . . . . . 51. Upon information and belief, at no time relevant to this Complaint did American Express decide that it no longerwanted to sell Sloan Financial to the plaintiffs, and, in fact, American Express has continued to try to sell Sloan Financial toother entities after the two funding sources pulled out of negotiations with the plaintiffs. These averments necessarily defeat plaintiffs’ claim that the American Express defendants violated the prohibition againstunfair and deceptive trade practices. Therefore, the trial court was correct in dismissing this claim under Rule 12(b)(6). Plaintiffs’ next assignment of error is that the trial court improvidently dismissed their claims against the Sloan and AmericanExpress defendants for constructive fraud. Our review of plaintiffs’ original complaint, however, compels us to disagree. To state a cause of action for constructive fraud, “plaintiff[s] must allege facts and circumstances which created the relationof trust and confidence and ‘which led up to and surrounded the consummation of the transaction in which defendant[s] [are]alleged to have taken advantage of [their] position of trust to the hurt of plaintiff[s].’” Ridenhour v. IBMCorp., 132 N.C.App. 563, 566, 512 S.E.2d 774, 777 (quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215,224 (1997) (citation omitted)), disc. review denied, ___ N.C. ___, ___ S.E.2d ___, 1999 WL 601451 (Jun. 25, 1999)(No. 187P99). Moreover, “an essential element of constructive fraud is that ‘defendants sought to benefit themselves’ in thetransaction.” State ex rel. Long v. Petree Stockton, L.L.P., 129 N.C. App. 432, 445, 499 S.E.2d 790, 798 (1998)(quoting Barger, 346 N.C. at 667, 488 S.E.2d at 224), cert. dismissed as improvidently granted, 350 N.C. 57, 510S.E.2d 374 (1999). In essence, plaintiffs’ action for constructive fraud against the Sloan and American Express defendants states that “[a]relationship of trust and confidence existed between the plaintiffs and defendants” and that “[t]he defendants failed to act ingood faith with respect to the transaction between the parties, to the hurt of the plaintiffs.” The complaint does not, however,allege that the Sloan or American Express defendants sought to benefit themselves through their conduct. Accordingly,plaintiffs’ claim for constructive fraud must fail. Plaintiffs further contend that the trial court erred by dismissing all claims in their original complaint against New Africa.However, after thoroughly examining the pleading, we are satisfied that the court did not err, in that the complaint fails toallege any cause of action against New Africa. As to plaintiffs’ final contention that the court should have permitted themleave to amend their claims for tortious interference withprospective economic advantage and constructive fraud, we find noabuse of discretion. Once an answer has been served, plaintiffs must seek leave of court to amend their complaint, and “leave shall be freelygiven when justice so requires.” N.C.R. Civ. P. 15(a). A motion to amend, however, is addressed to the discretion of thetrial judge, whose ruling will not be disturbed absent proof that the judge manifestly abused that discretion. Smith v. McRary,306 N.C. 664, 295 S.E.2d 444 (1982). Where the court’s reason for denying leave to amend is not stated in the record,”‘this Court may examine any apparent reasons for such denial.’” Martin v. Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632,634 (1985) (quoting United Leasing Corp. v. Miller, 60 N.C. App. 40, 42-43, 298 S.E.2d 409, 411 (1982), pet. disc.review denied, 308 N.C. 194, 302 S.E.2d 248 (1983)). Reasons warranting a denial of leave to amend include “(a) unduedelay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previousamendments.” Id. Here, plaintiffs orally moved to amend their complaint during the 14 May 1998 hearing on the motions to dismiss made bythe Sloan and American Express defendants. Plaintiffs’ original complaint was filed 23 December 1997, and the Sloandefendants filed their answer on 18 February 1998. Nothing in the record before us explains plaintiffs’ delay in seeking toamend their complaint. Plaintiffs, therefore, have not met their burden of showing an abuse of the court’s discretion. SeeCaldwell’s Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 340 S.E.2d 518 (1986)(affirmingdenial of leave to amendwhere record does not indicate why plaintiff waited three months from filing of answer before moved to amend complaint).Furthermore, we have reviewed the proposed amendment and conclude that it still fails to state a claim for constructive fraudagainst any defendant. Thus, we uphold the court’s order denying plaintiffs’ motion to amend. In sum, we affirm dismissal of the following claims: (1) tortious interference with prospective economic advantage againstthe Sloan defendants; (2) unfair and deceptive trade practices against the American Express defendants; (3) constructivefraud against the Sloan and American Express defendants; and (4) all claims against New Africa. We, however, reverse thedismissal of plaintiffs’ claim for unfair and deceptive trade practices against the Sloan defendants (excluding New Africa), andremand this cause for further appropriate proceedings. Affirmed in part, reversed in part, and remanded. Chief Judge EAGLES and Judge MARTIN concur.
Walker v. Sloan NORTH CAROLINA COURT OF APPEALS NO. COA98-1541 Filed: 18 April 2000 BRENDA W. WALKER, STANLEY G. LABORDE and LAWRENCE J. VERNY,Plaintiffs v . MACEO K. SLOAN, JUSTIN F.BECKETT, PETER J. ANDERSON,MORRIS GOODWIN, JR., SLOAN FINANCIAL GROUP, INC., NCM CAPITAL MANAGEMENT GROUP, INC., NEW AFRICA ADVISERS, INC., and AMERICAN EXPRESS FINANCIAL ADVISORS, INC.,Defendants No. 97 CVS 14152 Wake County Appeal by plaintiffs from orders entered 10 June 1998, 17 July 1998 and 17 August 1998 by Judge Henry V. Barnette, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 20 September 1999. SMITH HELMS MULLISS & MOORE, L.L.P., by J. Anthony Penry, and FONTANA & LANIER, P.A., by LynnFontana, for plaintiffs- appellants. MOORE & VAN ALLEN, PLLC, by Lewis A. Cheek and Andrew B. Cohen, for defendants-appellees Maceo K. Sloan, Justin F. Beckett, Sloan Financial Group, Inc., NCM Capital Management Group, Inc., and New Africa Advisers, Inc. R. Jonathan Charleston for defendants-appellees Peter J. Anderson, Morris Goodwin, Jr., and American Express Financial Advisors, Inc.
