Brown v. Brown ( 1993 )

ARNOLD, Chief Judge.

In his sole argument on appeal, Mr. Brown argues the district court erred in dismissing his complaint pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. Mr. Brown contends that his complaint stated a- claim upon which relief could be granted and that the court should have allowed the case to proceed to trial. In reviewing a dismissal under Rule 12(b)(6), this Court is guided by the following principles:

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 legal insufficiency may be due to 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. When making a ruling under this rule, the complaint must be viewed as admitted and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.

State of Tennessee v. Environmental Management Comm., 78 N.C. App. 763, 765, 338 S.E.2d 781, 782 (1986) (citations omitted).

This appeal arises from Mr. Brown’s confusion concerning the meaning of the “Remedies for Breach” provision in the parties’ separation agreement and the rights it confers. The provision has been set out in full above and need not be repeated here. At the hearing on the Rule 12(b)(6) motion, Judge Daisy stated, “I don’t think the language of the Separation Agreement is ambiguous . . . and I don’t think it pertains to the outcome of the 1986 case, so I’m going to grant the 12(b)(6) motion.”

We agree with the trial court and affirm the dismissal of Mr. Brown’s complaint. We also believe the language of the remedies provision is unambiguous. A party must have failed at some performance under the separation agreement in order for the other party to be a prevailing party. Any such failure or default does not appear from the face of Mr. Brown’s complaint. Moreover, Mrs. Brown’s actions, often little more than defensive gestures, cannot be construed as a “failure in the due performance” of her obligations under the separation agreement. Furthermore, she does not become a defaulting party by virtue of these actions. Thus, the trial judge properly dismissed the complaint.

The trial court’s order dismissing this action is affirmed.

Affirmed.

Judges LEWIS and WYNN concur.