An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-342


Filed: 06 June 2006

Emmaline E. Shella,


v .                         Guilford County
                            No. 02 CVS 11260
Angela C. Foster, PC and
Angela C. Foster, Attorney,


    Appeal by plaintiff from order dated 17 June 2003 by Judge William Z. Wood, Jr. and order dated 19 October 2004 by Judge Catherine Eagles in Guilford County Superior Court. Heard in the Court of Appeals 3 November 2005.

    Emmaline Ellison Shella, pro se plaintiff-appellant.

    Gray Newell Johnson & Blackmon, LLP, by Angela Newell Gray, for defendant-appellees.

    ELMORE, Judge.

    Emmaline E. Shella (plaintiff) commenced this action by filing a complaint in Guilford County Superior Court on 24 October 2002. Plaintiff alleged that Angela C. Foster (Foster), an attorney, had breached a contract to prepare a separation agreement to plaintiff's satisfaction for a fee of $750.00. Foster's draft of the separation agreement was never executed. Plaintiff also asserted claims of fraud, “tort,” and punitive damages. The trial court dismissed plaintiff's claims for fraud, “tort,” and punitive damages in an order dated 17 June 2003. By an unpublished decisionof this Court, plaintiff's appeal of the 17 June 2003 order was dismissed as interlocutory. Shella v. Foster, 164 N.C. App. 598, 596 S.E.2d 473 (2004). In an order dated 19 October 2004, the trial court granted summary judgment to defendants on plaintiff's breach of contract claim. Plaintiff appeals.
    We first review the trial court's order granting defendants' motion to dismiss plaintiff's claims of fraud, punitive damages, and “tort” pursuant to Rule 12(b)(6). A claim for fraud must be pled with particularity. See N.C. Gen. Stat. § 1A-1, Rule 9(b) (2005) (“In all averments of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”). The essential elements of fraud are: “(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.” Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974).
    Here, plaintiff alleges that Foster told her to bring $750.00 to her office; that Foster did not meet with plaintiff in person; and that Foster refused to return plaintiff's $750.00 fee. However, plaintiff does not state the content of any alleged fraudulent representation in connection with these facts. Thus, plaintiff's complaint fails to specifically allege the circumstances of fraud. See Terry v. Terry, 302 N.C. 77, 85, 273 S.E.2d 674, 678 (1981) (plaintiff must allege content of fraudulent representation to meet particularity requirement for pleadingactual fraud; mere conclusory language asserting fraud insufficient).
    The trial court also dismissed plaintiff's claim for “tort.” We agree with defendants that plaintiff failed to state a claim for relief under Rule 8(a)(1) of the North Carolina Rules of Civil Procedure. This Rule requires “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief[.]” N.C. Gen. Stat. § 1A-1, Rule (8)(a)(1) (2005).
        A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and_by using the rules provided for obtaining pretrial discovery_to get any additional information he may need to prepare for trial.

Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970). If the defendant requires additional facts to proceed with the defense of the case, then the defendant's proper remedy is to file a motion for a more definite statement. See id.; Homeowners Assoc. v. Sellers and Homeowners Assoc. V. Simpson, 62 N.C. App. 205, 208, 302 S.E.2d 848, 851 (1983) (where the defendant seeks additional facts beyond the plaintiff's short and plain statement of the claim, remedy is to move for a more definite statement or to use discovery methods). Here, however, the deficiency with plaintiff's complaint was not that it was lacking for facts. Instead,plaintiff did not assert a legally cognizable claim for relief. Plaintiff merely asserted that defendants committed a “tort” against plaintiff. Black's Law Dictionary defines a tort as “[a] civil wrong for which a remedy may be obtained, usu. in the form of damages[.]” Black's Law Dictionary 1496 (7th ed. 1999). A tort is a broad category of legal claims for relief; alleging a tort does not place the defending party on notice of the elements of a legally recognized claim. The trial court did not err in dismissing plaintiff's claim for “tort.”
    The trial court also did not err in dismissing plaintiff's claim for punitive damages. The standard for recovery of punitive damages is set forth in N.C. Gen. Stat. § 1D-15, which provides:
        (a) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:

        (1) Fraud.

        (2) Malice.

        (3) Willful or wanton conduct.

N.C. Gen. Stat. § 1D-15(a) (2005). Plaintiff did not allege any facts supporting fraud or willful or wanton conduct. Plaintiff did aver that Foster prepared the separation agreement “with malice” and “with intent of exerting more stress on the plaintiff.” However, a conclusory assertion of malicious conduct in the plaintiff's complaint is not taken as true upon review of a motion to dismiss. See Miller v. Rose, 138 N.C. App. 582, 592, 532 S.E.2d 228, 235 (2000) (“In ruling on a Rule 12(b)(6) motion to dismiss,the trial court regards all factual allegations of the complaint as true . . . Legal conclusions, however, are not entitled to a presumption of truth.”). Plaintiff simply failed to present any facts in support of fraud, malice, or willful or wanton conduct by defendants. Her claim for punitive damages was properly dismissed.
    Next, plaintiff contends that the trial court erred in granting summary judgment to defendants on the breach of contract claim. Plaintiff's claim is based upon the agreement between herself and Foster that Foster would prepare a separation agreement in return for payment for these services. It is undisputed that Foster did in fact prepare a separation agreement and that plaintiff paid Foster a fee of $750.00. Plaintiff contends that the content of the separation agreement was unsatisfactory and in contravention of plaintiff's stated specifications.
    Summary judgment is proper where the moving party shows the lack of any triable issue. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The moving party may meet this burden “by proving that an essential element of the opposing party's claim is nonexistent[.]” Id. “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). Plaintiff's forecast of evidence must establish that the parties reached an agreement as to definite and certain terms. See Miller v. Rose, 138 N.C. App. 582, 587-88, 532 S.E.2d 228, 232 (2000) (summary judgment for defendants on breach of contract claim properwhere plaintiff's evidence did not show meeting of minds on definite and certain terms); Orthodontic Ctrs. of Am., Inc. v. Hanachi, 151 N.C. App. 133, 135, 564 S.E.2d 573, 575 (2002) (burden of proving valid contract is upon party seeking to enforce alleged contract).
    Here, plaintiff contends that a contract exists because “[t]he defendant agreed to draft the document in accordance with the plaintiff's specifications.” But the record is lacking in any evidence to indicate what particular terms plaintiff desired to be included in the separation agreement and that Foster and plaintiff agreed that these specific terms would be included therein. In short, plaintiff's evidence fails to establish a meeting of the minds as to the terms of an alleged contract entered into by the parties. As there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law, see N.C. Gen. Stat. § 1A-1, Rule 56(c), the trial court properly granted summary judgment on plaintiff's breach of contract claim.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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