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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JAMES A. BURGIN, Plaintiff, v. WILLARD RAY OWEN and wife ARIMELLA
H. OWEN, Defendants
Filed: 6 February 2007
Husband and Wife; Vendor and Purchaser_contract to sell entirety property_signature of
husband_absence of written authorization by wife
A written contract to sell realty owned by defendants as tenants by the entirety was
unenforceable where the complaint shows that the contract was signed only by defendant
husband, and there was no indication that defendant wife provided the husband with written
authority to act on her behalf. N.C.G.S. § 39-13.6.
Judge TYSON dissenting.
Appeal by plaintiff from an order entered 9 January 2006 by
Judge Franklin F. Lanier in Harnett County Superior Court. Heard
in the Court of Appeals 18 October 2006.
Bain, Buzzard & McRae, LLP, by Edgar R. Bain and L. Stacy
Weaver, III, for plaintiff-appellant.
Christopher L. Carr for defendant-appellees.
James A. Burgin (plaintiff) appeals from a 9 January 2006
order granting Willard Ray and Arimella H. Owens' (defendants')
12(b)(6) motion to dismiss plaintiff's complaint and canceling the
lis pendens attached to defendants' real property.
Defendants are owners of the subject property as tenants by
the entirety, per deed recorded at Book 852, Page 533 Harnett
County Registry. Defendant Willard Owen and plaintiff agreed on a
purchase price of $53,000.00 for plaintiff to buy the subject
property from defendants. On 26 April 2005, an Offer to Purchase
and Contract was executed. The Offer to Purchase and Contract wassigned by plaintiff and Willard Owen. Subsequently, plaintiff
employed a real estate attorney to perform the title work and
prepare a deed for closing. On 24 August 2005, the date scheduled
for the real estate closing, Willard Owen delivered a letter to
plaintiff stating he would not sell the subject property.
Plaintiff commenced this action on 26 August 2005 against
defendants and on 29 August 2005 filed a Notice of Lis Pendens on
defendants' subject property. On 9 January 2005, the trial court
entered an order dismissing plaintiff's complaint for failure to
state a claim upon which relief may be granted and canceling the
lis pendens. From this order, plaintiff appeals.
The dispositive issue is whether the trial court erred in
granting defendants' 12(b)(6) motion for failure to state a claim
upon which relief may be granted. Plaintiff contends he has
sufficiently plead two good causes of action for specific
performance and breach of contract. We disagree.
The standard of review of an order granting a 12(b)(6) motion
is whether the complaint states a claim for which relief can be
granted under some legal theory when the complaint is liberally
construed and all the allegations included therein are taken as
true. Country Club of Johnston County, Inc. v. U.S. Fidelity &
, 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002). On
a motion to dismiss, the complaint's material factual allegations
are taken as true. Oberlin Capital, L.P. v. Slavin
, 147 N.C. App.
52, 56, 554 S.E.2d 840, 844 (2001). Dismissal is proper when oneof the following three 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 complaint discloses some fact that
necessarily defeats the plaintiff's claim. Wood v. Guilford Cty.
355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). On appeal of a
12(b)(6) motion to dismiss, this Court conducts a de novo
of the pleadings to determine their legal sufficiency and to
determine whether the trial court's ruling on the motion to dismiss
was correct. Page v. Lexington Ins. Co.
, 177, N.C. App. 246, 248,
628 S.E.2d 427, 428 (2006) (citation omitted); see also McLamb v.
, 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005)
(holding trial court properly dismissed pursuant to 12(b)(6)
plaintiff's claim where plaintiff did not allege existence of a
valid option contract).
North Carolina General Statutes, Section 39-13.6. entitled
Control of real property held in tenancy by the entirety states:
(a) A husband and wife shall have an equal
right to the control, use, possession, rents,
income, and profits of real property held by
them in tenancy by the entirety. Neither
spouse may bargain, sell, lease, mortgage,
transfer, convey or in any manner encumber any
property so held without the written joinder
of the other spouse.
This section shall not be
construed to require the spouse's joinder
where a different provision is made under G.S.
39-13, G.S. 39-13.3, G.S. 39-13.4, or G.S.
N.C.G.S. . 39-13.6 (a) (2005) (emphasis added). Pursuant to
N.C.G.S. § 39-13.6, absent written authorized agency of a spouse,
tenants by the entirety cannot be the subject of a complaint forspecific performance, or breach of contract as to real property
unless the Offer to Purchase and Contract is signed by both
N.C.G.S. § 39-13.6 (2005). This statute gives
married women equal rights to use and control and obtain income
from property held as entireties.
In this case, plaintiff alleges in his complaint that at the
time the Offer to Purchase and Contract was signed, Willard Owen
stated that he was the agent for his wife, Arimella, and therefore
she did not need to sign the contract to execute the sale.
Plaintiff further alleges Willard Owen stated this agency
relationship existed at all time herein and [Willard Owen] was
acting within the scope of his authority as agent of his wife at
the time of signing of the contract. Taking these allegations as
true, the complaint on its face reveals that no law supports
plaintiff's claim for specific performance or breach of contract.
Here, the complaint shows the husband was the only seller who
signed the Offer to Purchase and Contract; and there was no
indication that the wife provided the husband with written
authority to act on her behalf.
(See footnote 1)
We hold plaintiff's complaintfailed to state a legally sufficient claim and therefore affirm the
trial court's order granting defendants' motion to dismiss and
canceling the lis pendens attached to the subject property.
Judge LEVINSON concurs.
Judge TYSON dissents in a separate opinion.
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.
I. Standard of Review
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 alleged appearson the face of the complaint and 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).
II. Motion to Dismiss
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. Statute of Frauds
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 and signed by the party to
be charged therewith, or by some other person
by him thereto lawfully authorized.
(Emphasis supplied). Our Supreme Court has stated:
In various decisions construing the statute,
it is held that the party to be charged is the
one against whom relief is sought; and if the
contract is sufficient to bind him, he can be
proceeded against though the other could not
be held, because as to him the statute is not
sufficiently complied with. As expressed in
Mizell, 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.
Lewis v. Murray, 177 N.C. 17, 19, 97 S.E. 750, 751 (1919) (emphasis
In Brooks Distributing Co. v. Pugh, our Supreme Court reversed
and adopted per curiam the 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 thecontract fails to comport with the statute of
frauds, because the defense that the statute
of frauds bars enforcement of a contract is an
affirmative defense that can only be raised 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).
B. Agent of Party to be Charged
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 also N.C. Gen.
Stat. § 22-2 (or by some other person by him thereto lawfully
In Reichler 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
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 they 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 from Lewis 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 shown aliunde or 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
marked Exhibit A and 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 notneed to sign the contract and agreement which
is attached hereto as Exhibit 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 as Exhibit 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 Johnston Cty., 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 allegations are taken as true and liberally
construed in plaintiff's favor. Oberlin Capital, 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 tooffer 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.
Defendants, in their answer, deny plaintiff's allegations:
Defendant Willard Ray Owen had no authority to
sign the [Offer to Purchase] on her behalf,
and further no signature of the Defendant
Arimella H. Owen was affixed to the Offer to
Purchase by any person, at any time. The
defendant Willard Ray Owen specifically denies
making any representations to the plaintiff
regarding being an agent for his wife, or
regarding the requirement that she sign the
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