Davis v. Davis ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1168
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
ELIZABETH S. MCGILL DAVIS,
Plaintiff,
v. Onslow County
No. 12 CVS 4163
GARY EDWARD DAVIS, WANDA SUE
BENNETT, DONNA THOMAS, BRIAN
GRAF, JR., AND CHRIS GRAF,
Defendants.
Appeal by plaintiff from order entered 1 August 2013 by
Judge Jack Jenkins in Onslow County Superior Court. Heard in
the Court of Appeals 3 February 2014.
George Collins, PA, by George L. Collins, for plaintiff-
appellant.
Mewborn & DeSelms, Attorneys at Law, by Brett J. DeSelms,
for defendants-appellees.
HUNTER, JR., Robert N., Judge.
Plaintiff Elizabeth S. McGill Davis (“Plaintiff”) appeals
from a 1 August 2013 order granting a motion to dismiss under
N.C. R. Civ. P. 12(b)(6) in favor of Gary Edward Davis, Wanda
Sue Bennett, Donna Thomas, Brian Graf, Jr., and Chris Graf
(collectively “Defendants”). After careful review, we affirm.
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I. Facts & Procedural History
Plaintiff filed a complaint against Defendants on 22
October 2012 seeking one-half of gross rents collected on
“rental property” owned by her deceased husband, Virgil E. Davis
(“Virgil”). Plaintiff and Virgil entered into a pre-marital
agreement (the “Agreement”) on 5 April 2011, which was attached
to the Complaint. The Agreement includes a handwritten clause
under Section VI which says
If at my death, [Plaintiff] so desires to
continue to live in my home at 263 Batchelor
Rd. Richlands, NC, until her death, or she
remarries, she may do so provided she does
not cohabit with another man. [Plaintiff]
will also receive one half of rental income
from rental property under same conditions
as stated above.
Virgil passed away on 9 October 2011. Plaintiff recorded
the Agreement in the Onslow County Register of Deeds Office on 4
November 2011.
The complaint alleged that “Defendants have refused to pay
rents to Plaintiff subsequent to April 2012 contrary to her
entitlement to one-half (1/2) of rental income as stated in the
Agreement.” The complaint also alleged that Plaintiff was
“entitled to one-half (1/2) of the rents collected each month
without reduction for depreciation and expenses.”
Defendant Gary Davis filed a motion to dismiss pursuant to
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N.C. R. Civ. P. 12(b)(6) on 30 October 2012 and defendants Wanda
Sue Bennett, Donna Thomas, Brian Graf, Jr., and Chris Graf filed
a motion to dismiss on 2 November 2012. Defendants provided
Plaintiff with notice of hearing for both motions to dismiss on
28 June 2013. The trial court dismissed Plaintiff’s complaint
with prejudice on 1 August 2013. Plaintiff filed timely notice
of appeal on 6 August 2013.
II. Jurisdiction & Standard of Review
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat.
§ 7A–27(b) (2013), as Plaintiff appeals from a final order of
the superior court as a matter of right.
The only issue on appeal is whether Plaintiff’s complaint
is sufficient under the notice pleading standard of N.C. R. Civ.
P. 8 to survive a Rule 12(b)(6) motion. “This Court must
conduct a de novo review of the pleadings to determine their
legal sufficiency and to determine whether the trial court’s
ruling on the motion to dismiss was correct.” Leary v. N.C.
Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4,
aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). “‘On a
Rule 12(b)(6) motion to dismiss, the question is whether, as a
matter of law, the allegations of the complaint, treated as
true, state a claim upon which relief can be granted.’” Allred
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v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 282, 669
S.E.2d 777, 778 (2008) (quoting Wood v. Guilford Cty., 355 N.C.
161, 166, 558 S.E.2d 490, 494 (2002)). Thus, we must consider
Plaintiff’s complaint “to determine whether, when liberally
construed, it states enough to give the substantive elements of
a legally recognized claim.” Governors Club, Inc. v. Governors
Club Ltd. P’ship., 152 N.C. App. 240, 246, 567 S.E.2d 781, 786
(2002) (internal citations omitted), aff’d per curiam, 357 N.C.
46, 577 S.E.2d 620 (2003).
Under de novo review, we examine the case with new eyes.
“The word de novo means fresh or anew; for a second time, and an
appeal de novo is an appeal in which the appellate court uses
the trial court’s record but reviews the evidence and law
without deference to the trial court’s rulings.” Parker v.
Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007)
(quotation marks and citations omitted).
III. Analysis
Dismissal of a claim under Rule 12(b)(6) is proper when one
of the three following conditions is satisfied: “(1) the
complaint on its face reveals that no law supports the
plaintiff’s claim; (2) the complaint on its face reveals the
absence of facts sufficient to make a good claim; or (3) the
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complaint discloses some fact that necessarily defeats the
plaintiff’s claim.” Burgin v. Owen, 181 N.C. App. 511, 512, 640
S.E.2d 427, 428–29 (2007).
At its core, the present dispute concerns a pre-marital
contract between Virgil and Plaintiff and whether or not its
terms may be enforced against Defendants. However, “[a]s a
general matter, a contract must be sufficiently definite in
order that a court may enforce it.” Brooks v. Hackney, 329 N.C.
166, 170, 404 S.E.2d 854, 857 (1991). “Furthermore, to be
binding, the terms of a contract must be definite and certain or
capable of being made so; the minds of the parties must meet
upon a definite proposition.” Elliott v. Duke University, Inc.,
66 N.C. App. 590, 596, 311 S.E.2d 632, 636, disc. rev. denied,
311 N.C. 754, 321 S.E.2d 132 (1984). Contracts describing
property must be described with some particularity to be
enforceable. See Snug Harbor Prop. Owners Ass’n v. Curran, 55
N.C. App. 199, 204, 284 S.E.2d 752, 755 (1981).
These principles apply to pre-marital agreements. N.C.
Gen. Stat. § 52B-2 (2013) (defining a pre-marital agreement as
an “agreement”); Turner v. Turner, 242 N.C. 533, 539, 89 S.E.2d
245, 249 (1955) (“The principles of construction applicable to
antenuptial contracts and to contracts generally are the
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same.”). While pre-marital agreements do not require
consideration to be valid, pre-marital agreements require the
other elements of construction inherent in contract law. N.C.
Gen. Stat. § 52B-3 (2013); Howell v. Landry, 96 N.C. App. 516,
525, 386 S.E.2d 610, 615 (1989). Pre-marital agreements may
convey property upon the death of one of the parties to the
agreement. N.C. Gen. Stat. § 52B-4(a)(3) (2013).
Here, the complaint and its appended pre-marital agreement
do not describe with any particularity the “rental property” at
issue. Paragraph I(A) states that the parties to the contract,
Virgil and Plaintiff, release “any claim of the other Party,
upon separation or otherwise, without regard to any time or
effort invested during the course of the marriage in the
maintenance, management, or improvement of the Separate
Property.” Virgil’s separate property listed under Schedule A1
of the Agreement includes his home at 263 Batchelor Rd., several
mobile homes located on Batchelor Rd., 110 acres of land, a
pickup truck, a van, two other cars, two lawnmowers, two farm
tractors, two bank accounts, stocks, a life insurance policy, a
retirement account, and a 401(k) account.
1
Schedule A includes a subtitle of “Separate Property and
Financial Disclosure of Husband-to-Be.”
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Virgil also handwrote an “additional clause” into Section
VI of the Agreement which said:
If at my death, [Plaintiff], so desires to
continue to live in my home at 263 Batchelor
Rd. Richlands, NC, until her death, or she
remarries, she may do so, provided she does
not cohabit with another man. Sue will also
receive one half of rental income from
rental property under same conditions as
stated above.2
At no point within the pre-marital agreement or the complaint is
“rental property” identified. Reading Sections I(A) and VI
together, Plaintiff could only feasibly claim a right to rental
income produced by properties besides those listed in Schedule
A, which are explicitly identified as separate property.
However, the property outside of the separate property is never
identified in either the complaint or the Agreement. As such,
“rental property” may not be identified based on the face of the
complaint, meaning the complaint contained an “absence of facts
sufficient to make a good claim.” Burgin, 181 N.C. App. at 512,
640 S.E.2d at 428–29.
In addition, the complaint contains no statement showing
why Defendants are the proper parties against whom suit should
be brought. The complaint contains only the names of each
2
We also note that Plaintiff was represented by counsel in the
drafting of the pre-marital agreement, while Virgil was not.
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defendant and the counties where they live. The complaint does
not state that Defendants are Virgil’s heirs at law or legatees.
Lacking this information, no chain of ownership showing the
nexus between the “rental property” and any of the defendants,
whether possessed for rental income producing purposes or not,
is provided. Even if Plaintiff’s complaint included a
sufficient description of the rental property, the complaint
made no attempt to describe Defendants’ ownership interests in
it or their duty to pay rents to Plaintiff.
Accordingly, Plaintiff’s complaint does not include enough
facts “to give the substantive elements of a legally recognized
claim,” Governors Club, 152 N.C. App. at 246, 567 S.E.2d 781 at
786, and dismissal under Rule 12(b)(6) was proper.
“The decision to dismiss an action with or without
prejudice is in the discretion of the trial court and will not
be disturbed on appeal absent an abuse of discretion.” First
Fed. Bank v. Aldridge, ___ N.C. App. ___, ___, 749 S.E.2d 289,
292 (2013). “Abuse of discretion results where the court’s
ruling is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.”
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
The North Carolina Rules of Civil Procedure provide that “[a]
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party may amend his pleading once as a matter of course at any
time before a responsive pleading is served. . . . Otherwise a
party may amend his pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely
given when justice so requires.” N.C. R. Civ. P. 15(a).
“[W]hen the plaintiff completely fails to make any effort to
amend the pleading, take a voluntary dismissal, or move that the
complaint be dismissed without prejudice, the trial court does
not abuse its discretion in dismissing the complaint with
prejudice.” First Fed. Bank, ___ N.C. App. at ___, 749 S.E.2d
at 292.
Here the record lacks evidence showing that Plaintiff
attempted to amend her complaint prior to Defendants filing
their answer or evidence that Plaintiff moved that dismissal of
her claim be without prejudice. As we held in First Federal
Bank, Plaintiff cannot “claim that the trial court abused its
discretion by not offering Plaintiff, sua sponte, an opportunity
to amend the complaint.” Id. at ___, 749 S.E.2d at 293.
Plaintiff did not raise this issue below or on appeal. As such,
we do not address it further. Viar v. N.C. Dep’t of Transp.,
359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (“It is not the
role of the appellate courts, however, to create an appeal for
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an appellant.”).
IV. Conclusion
For the reasons stated above, the decision of the trial
court is
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).