Coley v. North Carolina National Bank , 41 N.C. App. 121 ( 1979 )

254 S.E.2d 217 (1979) 41 N.C. App. 121

Larry W. COLEY and Judy B. Coley, his wife
v.
NORTH CAROLINA NATIONAL BANK, Tommy J. Williams, Curtis R. Eudy and Elizabeth W. Eudy, his wife.

No. 7819SC672.

Court of Appeals of North Carolina.

May 1, 1979.

Wesley B. Grant, Concord, for plaintiffs-appellants.

Berry, Bledsoe, Hogewood & Edwards by Ashley L. Hogewood, Jr., and Jackie D. Drum, Charlotte, for defendant-appellee North Carolina Nat. Bank.

HEDRICK, Judge.

Plaintiff first contends that the court erred in granting the Bank's Rule 12(b)(6) motion to dismiss. Plaintiff argues that the complaint contains sufficiently detailed allegations of fact which, if proven, would establish fraud.

The essential elements of active fraud are well-established: There must be a misrepresentation of material fact, made with knowledge of its falsity and with intent to deceive, which the other party reasonably relies on to his deception and detriment. Equally well-established is the requirement that the plaintiff allege all material facts and circumstances constituting the fraud with particularity in the complaint. Mere generalities and conclusory allegations of fraud will not suffice. [Citations omitted.]

Moore v. Wachovia Bank and Trust Co., 30 N.C.App. 390, 391, 226 S.E.2d 833, 834-35 (1976). Under G.S. § 1A-1, Rule 9(b), however, "[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally." The pleader, however, must state with particularity the time, place and content of the false misrepresentation. 2A Moore's Federal Practice ¶ 9.03, at 1924-28 (2d ed. 1978). Furthermore, the plaintiff must identify the particular individuals who dealt with him when he alleges that he was defrauded by a group or association of persons. Trussell v. United Underwriters, Ltd., 228 F. Supp. 757, 774-75 (D.Colo.1964).

We think plaintiffs have failed to allege the circumstances constituting fraud with sufficient particularity, and that the trial judge properly granted defendant's Rule 12(b)(6) motion. At most, plaintiffs' complaint alleges that the Bank misrepresented that a material condition of the contract had been performed and that plaintiffs reasonably relied on this misrepresentation to their detriment. The fatal deficiency in plaintiffs' allegations is that the complaint contains no facts whatsoever setting forth the time, place, or specific individuals who purportedly made the misrepresentations to the plaintiffs. The defendant North Carolina National Bank is a corporation; ipso facto, any fraudulent misrepresentations attributable to it would necessarily have been made by natural persons acting as its agents. It is not sufficient to conclusorily allege that a corporation made fraudulent misrepresentations; the pleader in such a situation must allege specifically the individuals who made the misrepresentations of material fact, the time the alleged misstatements were made, and the place or occasion at which they were made. It would be manifestly unfair to require a corporation to attempt to defend an action for fraud without being informed as to which of its officers, agents, or employees purportedly made the misrepresentations, as well as to all of the facts and circumstances surrounding the transaction. Because no such facts are alleged in the plaintiffs' complaint, it was properly dismissed for failure to state a claim upon which relief may be granted.

Plaintiffs next contend that the court erred by considering materials outside the pleadings in ruling on the motion to dismiss without giving them a reasonable time in which to present additional materials in support of their position. The outside material objected to was the written contract obligating the Eudys to assume the mortgage on the plaintiffs' Rowan County house, which contract was referred to in the complaint.

Rule 12(b) provides in pertinent part:

If, on a motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.

We do not think that defendant's Rule 12(b)(6) motion to dismiss was converted into one for summary judgment by the trial court's referring to the contract which was the subject of the action and specifically referred to in the complaint. The obvious purpose of the above quoted provision contained in Rule 12(b) is to preclude any unfairness resulting from surprise when an adversary introduces extraneous material on a Rule 12(b)(6) motion, and to allow a party a reasonable time in which to produce materials to rebut an opponent's evidence once the motion is expanded to include matters beyond those contained in the pleadings. In the present case these factors are conspicuously absent. Certainly the plaintiffs cannot complain of surprise when the trial court desires to familiarize itself with the instrument upon which the plaintiffs are suing because the plaintiffs have failed to reproduce or incorporate by reference the particular instrument in its entirety in the complaint. Furthermore, by considering the contract, the trial judge did not expand the hearing to include any new or different matters. No prejudice could have resulted to the plaintiffs from the trial judge's actions in any event, as the complaint was dismissed for failure to state with particularity the circumstances of the alleged fraud. This assignment of error has no merit.

For the reasons stated above, the Order dismissing defendant North Carolina National Bank is affirmed.

Affirmed.

PARKER and CARLTON, JJ., concur.