Burgin v. Owen

BRYANT, Judge.

TYSON, Judge, dissenting.

The majority's opinion holds "plaintiff's complaint failed to state a legally sufficient claim and . . . affirm[s] the trial court's order granting defendants' [Rule 12(b)(6)] motion to dismiss and canceling the lis pendens attached to the subject property." Taking the allegations in plaintiff's complaint as true, his allegations state a claim for which relief can be granted to survive defendants' Rule 12(b)(6) motion to dismiss. I vote to reverse the trial court's order and respectfully dissent. Our Supreme Court has stated:

The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. A complaint may be dismissed on motion filed under Rule 12 (b) (6) if it is clearly without merit; such lack of merit may consist of an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. For the purpose of a motion to dismiss, the allegations of the complaint are treated as true. A complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim allegedappears onthe face of the complaintand where allegations contained therein are sufficient to give a defendant notice of the nature and basis of plaintiffs' claim so as to enable him to answer and prepare for trial.

Forbis v. Honeycutt,301 N.C. 699,701,273 S.E.2d 240,241(1981) (internal citations omitted) (emphasis supplied).

This Court has stated:

[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief. In analyzing the sufficiency of the complaint, the complaint must be liberally construed.

Dixon v. Stuart,85 N.C. App. 338,340,354 S.E.2d 757,758(1987) (internal citations omitted).Page 515 Plaintiff asserts he properly alleged a claim for breach of contract for sale of real property and entitlement to specific performance, and argues the trial court erred by granting defendants' Rule 12(b)(6) motion to dismiss. I agree.

"The elements of breach of contract are (1) the existence of a valid contract and (2) breach of the terms of the contract."Long v. Long,160 N.C. App. 664,668,588 S.E.2d 1,4(2003). "[S]pecific performance is a proper remedy for enforcement of [a contract] to purchase real estate."Rainbow Props, v. Wilkinson,147 N.C. App. 520,523,556 S.E.2d 11,14(2001). Where real property is the subject to the parties' agreement, either party may seek specific performance of the executory contract without showing the inadequacy of the legal remedy.Deans v. Layton,89 N.C. App. 358,371,366 S.E.2d 560,568,disc.rev. denied,322 N.C. 834,371 S.E.2d 276(1988). A contract for the sale of real property must satisfy the statute of frauds. N.C. Gen. Stat. §22-2(2005) states:

All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing andsigned by theparty to be charged therewith, or by some other personby him thereto lawfully authorized.

(Emphasis supplied). Our Supreme Court has stated:

In various decisions construing the statute, it is held thatthe party to be charged is the one againstwhom relief is sought; and if the contract issufficient to bind him, he can be proceeded againstthough the other could not be held, because as to himthe statute is not sufficiently complied with.As expressed inMizell, Jr. v. Burnett,49 N.C. 249: Under the statute of frauds, a contract in writing to sell land, signed by the vendor, is good against him, although the correlative obligation to pay the price is not in writing and cannot be enforced against the purchaser.

Page 516Lewis v. Murray,177 N.C. 17,19,97 S.E. 750,751(1919) (emphasis supplied).

InBrooks Distributing Co. v. Pugh, our Supreme Court reversed and adoptedper curiamthe rationale of Judge Cozort's dissenting opinion which states in relevant part:

It is inappropriate to consider, for purposes of a motion under 12(b)(6), whether the contract fails to comport with the statute of frauds,because thedefense that the statute of frauds bars enforcement ofa contract is an affirmative defense that can only beraised by answer or reply.

91 N.C. App. 715,723-24,373 S.E.2d 300,305(Cozort, J., dissenting) (emphasis supplied),rev'd per curiam,324 N.C. 326,378 S.E.2d 31(1989). The statute of frauds or other statutory defenses are affirmative defenses, which "can only be raised by answer or reply" and cannot sustain a legal basis to affirm the trial court's grant of defendants' Rule 12(b)(6) motion to dismiss.Id.N.C. Gen. Stat. §1A-1, Rule 8(c) (2005). In addition, if agent of the party "to be charged" signs the contract for the purchase of real property, the contract will be enforceable against the principal whether present or not.Blacknall v. Parish,59 N.C. 70,72(1860);see alsoN.C. Gen. Stat. §22-2("or by some other person by him thereto lawfully authorized").

InReichler v. Tillman, this Court reviewed facts and allegations very similar to those at bar and held:

[U]nder the pleadings in this case, in which plaintiffs alleged and defendants denied that plaintiffs entered into a binding contract with both defendants, plaintiffs are free to offer such evidence as they may have to show that the husband-defendant was authorized by his wife to act as her agent to contract to sell the lands belonging to both as tenants by the entirety. There was no necessity that plaintiffs allege that the contract was executed by the feme defendant through an agent.

21 N.C. App. 38,41,203 S.E.2d 68,70-71(1974). Judge Parker (now Chief Justice), joined by Judges (later Justices) Britt and Vaughan unanimously held the plaintiffs' allegations of breach of contract and for specific performance were sufficient to survive a Rule 12(c) motion for judgment on the pleadings when the plaintiffs alleged theyPage 517"entered into a binding contract with defendants" for the purchase of the land, even though the "written `memorandum of said contract' which was incorporated by reference into the complaint made no reference to the feme defendant and was not signed by her."Id.at 40,203 S.E.2d at 70.

In so ruling, the Court quoted fromLewis v. Allred,249 N.C. 486,489,106 S.E.2d 689,692(1959), and stated:

The owner of real estate may sell such property through an agent, and when so acting the owner is not required to sign the agreement or to communicate with the purchaser. Moreover, the authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. The agent may sign the contract to sell and convey in his own name or in the name of his principal or principals. Furthermore, the authority of an agent to sell the lands of another may be shownaliundeor by parol.Hargrove v. Adcock, supra.

Reichler,21 N.C. App. at 41,203 S.E.2d at 70(citations omitted).

Here, plaintiff's complaint alleged:

4. On April 26, 2005, an Offer to Purchase and Contract was entered into between the Plaintiff and the Defendants, and a copy of such contract to purchase is attached hereto markedExhibit Aand incorporated herein by reference to the same extent as if set forth herein in full. At the time of the execution of the Offer to Purchase and Contract, Defendant Willard Ray Owen stated that he was the agent for his wife and that she did not need to sign the contract and agreement which is attached hereto asExhibit A.

. . . .

10. Defendant Willard Ray Owen was acting as the agent of his wife, Arimella H. Owen, at all times herein alleged and was acting within his scope of authority as agent of his wife at the time of the signing of the contract which is attached hereto asExhibit A.

Taking plaintiff's allegations as true, as required under a Rule 12(b)(6) motion, this complaint properly alleged the elements of breach of contract for the sale of real property.Country Club of JohnstonCty., Inc. v. U.S. Fidelity Guar. Co.,150 N.C. App. 231,238,563 S.E.2d 269,274(2002). The majority's opinion correctly recognizes on a motion to dismiss, the complaint's material factual allegationsPage 518are taken as true and liberally construed in plaintiff's favor.OberlinCapital, L.P. v. Slavin,147 N.C. App. 52,56,554 S.E.2d 840,844(2001).

It is undisputed that defendant Willard Ray Owen an owner signed the contract as seller. Plaintiff alleges defendant, Willard Ray Owen, also signed the contract as the agent for his wife, Arimella H. Owen. Whether that agent's authority is oral or written is immaterial at this stage of the proceeding. Defendant cannot assert any defenses on its Rule 12(b)(6) motion. The court must consider "as true" plaintiff's allegation that defendant, Willard Ray Owen, signed the contract as agent for his wife. Plaintiff alleged both defendants signed the contract and properly pled all required elements for breach of contract and entitlement to a remedy for specific performance. Plaintiff is entitled to offer proof, through discovery, affidavit, or testimony, to prove his allegations of agency. The trial court erred by granting defendants' Rule 12(b)(6) motion and dismissing plaintiff's claims. Plaintiff properly pled a claim for breach of contract for the sale of real property and entitlement to specific performance of defendants' contractual duty to convey. Under clearly established precedents, the trial court could not consider any statutory or affirmative defenses on defendants' Rule 12(b)(6) motion and was limited to ruling on whether plaintiff stated "a claim upon which relief can be granted."Forbis,301 N.C. at 701,273 S.E.2d at 241; N.C.R. Civ. P. 12(b)(6). The trial court erred when it granted defendants' Rule 12(b)(6) motion to dismiss. I vote to reverse the trial court's order and remand for further proceedings. I respectfully dissent.