NO. COA13-909
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
CHRISTOPHER BENJAMIN, Plaintiff,
v. Durham County No. 12 CVS 4537 CITY OF DURHAM, and NORTH CAROLINA DEPARTMENT OF TRANSPORTATION – DIVISION OF MOTOR VEHICLES, Defendants.
Appeal by plaintiff from order entered 11 April 2013 by
Judge Paul Gessner in Durham County Superior Court. Heard in
the Court of Appeals 19 February 2014.
Bratcher Adams PLLC, by J. Denton Adams and Brice Bratcher, for plaintiff-appellant.
Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellee the City of Durham.
BRYANT, Judge.
Where plaintiff fails to plead each element of a claim for
specific performance, a dismissal pursuant to Rule 12(b)(6) is
appropriate.
On 25 November 2009, plaintiff Christopher Benjamin, a
solid waste truck driver for defendant City of Durham, was
ordered by his supervisor to undergo a random drug screening. -2- When plaintiff arrived at the drug-testing facility, he realized
he did not have his identification; he then left the facility
and returned twenty minutes later. The testing facility
informed plaintiff that because he had left the facility he
would not be permitted to take the drug test and that the City
of Durham would be notified of his refusal to test. The City of
Durham terminated plaintiff’s employment that same day.
On 1 December 2009, the City of Durham notified the North
Carolina Department of Motor Vehicles (“DMV”) that plaintiff had
refused a random drug test. The DMV suspended plaintiff’s
commercial driver’s license (“CDL”) as a result.
On 14 December 2009, plaintiff was reinstated to his
position with the City of Durham upon passing a drug test. On
21 December, the City of Durham notified the DMV that it was
unclear whether plaintiff had actually refused to take the drug
test on 25 November; the DMV reinstated plaintiff’s CDL license
but not did remove a notation on plaintiff’s record indicating
he refused a drug test.
On 21 August 2012, plaintiff filed a complaint against the
City of Durham for specific performance, intentional infliction
of emotional distress and defamation of character. On 23 March
2013, the City of Durham filed motions to dismiss pursuant to -3- N.C. R. Civ. P. 12(b)(1), (2), and (6). On 11 April 2013, the
trial court granted the City of Durham’s motions to dismiss.
Plaintiff appeals.
_________________________________
Plaintiff’s sole argument on appeal is that the trial court
erred in granting the City of Durham’s motion to dismiss his
specific performance claim under Rule 12(b)(6) for failure to
state a claim upon which relief may be granted. We disagree.
"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 (2003).
The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of 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.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615
(1979) (citations omitted), disapproved of on other grounds by
Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
It is well-settled that a plaintiff's claim is properly dismissed under Rule 12(b)(6) when one of the following three conditions -4- is satisfied: (1) the complaint on its face reveals that no law supports the claim; (2) the complaint on its face reveals the absence of facts sufficient to make a valid claim; or (3) the complaint discloses some fact that necessarily defeats the claim.
Woolard v. Davenport, 166 N.C. App. 129, 133, 601 S.E.2d 319,
322 (2004) (citation omitted).
Plaintiff argues that the trial court erred in granting the
City of Durham’s motion to dismiss under Rule 12(b)(6) because
plaintiff’s complaint for specific performance was sufficiently
pleaded to survive a motion to dismiss. The remedy of specific
performance is used "to compel a party to do precisely what he
ought to have done without being coerced by the court." McLean
v. Keith, 236 N.C. 59, 71, 72 S.E. 2d 44, 53 (1952) (citation
omitted). “The party claiming the right to specific performance
must show the existence of a valid contract, its terms, and
either full performance on his part or that he is ready, willing
and able to perform.” Munchak Corp. v. Caldwell, 301 N.C. 689,
694, 273 S.E.2d 281, 285 (1981) (citation omitted). Even if a
party can show a breach of a valid contract, “[s]pecific
performance will not be decreed unless the terms of the contract
are so definite and certain that the acts to be performed can be
ascertained and the court can determine whether or not the
performance rendered is in accord with the contractual duty -5- assumed.” N.C. Med. Soc’y v. N.C. Bd. of Nursing, 169 N.C. App.
1, 11, 610 S.E.2d 722, 727—28 (2005) (citations omitted).
Plaintiff contends that he pled all three elements required
for specific performance in his complaint. Plaintiff argues
that he established a valid contract by stating in his complaint
that “[plaintiff] is an employee of the City of Durham, and was
so employed in Solid Waste Management as a driver on November
25, 2009[,]” “[the] City of Durham is the employer of Plaintiff
. . . and was his employer on November 25, 2009[,]” that
defendant reported to and was fired by the City of Durham’s
Human Resources department after being refused for drug testing,
“[t]hat on December 14, 2009, Plaintiff’s job position with the
City of Durham was reinstated by the City of Durham[,]” and that
the city manager for the City of Durham wrote to the DMV on
plaintiff’s behalf to have plaintiff’s CDL certification
reinstated. In its answer to plaintiff’s complaint, and again
at the hearing on the City of Durham’s motions to dismiss, the
City of Durham conceded to the trial court that plaintiff was,
and remains, their employee. However, plaintiff did not
provide a copy of his employment agreement with the City of
Durham in his complaint, nor did he present evidence at the
hearing regarding his terms of employment with the City of -6- Durham. As plaintiff’s complaint must be liberally construed,
we find that plaintiff has alleged sufficient facts to show the
existence of a valid contract. Moreover, the City of Durham’s
acknowledgement of an employee-employer relationship with
plaintiff provides evidence that a valid contract did exist
between the parties.
To sustain a claim for specific performance, plaintiff must
also show the terms of the contract.
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NO. COA13-909
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
CHRISTOPHER BENJAMIN, Plaintiff,
v. Durham County No. 12 CVS 4537 CITY OF DURHAM, and NORTH CAROLINA DEPARTMENT OF TRANSPORTATION – DIVISION OF MOTOR VEHICLES, Defendants.
Appeal by plaintiff from order entered 11 April 2013 by
Judge Paul Gessner in Durham County Superior Court. Heard in
the Court of Appeals 19 February 2014.
Bratcher Adams PLLC, by J. Denton Adams and Brice Bratcher, for plaintiff-appellant.
Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellee the City of Durham.
BRYANT, Judge.
Where plaintiff fails to plead each element of a claim for
specific performance, a dismissal pursuant to Rule 12(b)(6) is
appropriate.
On 25 November 2009, plaintiff Christopher Benjamin, a
solid waste truck driver for defendant City of Durham, was
ordered by his supervisor to undergo a random drug screening. -2- When plaintiff arrived at the drug-testing facility, he realized
he did not have his identification; he then left the facility
and returned twenty minutes later. The testing facility
informed plaintiff that because he had left the facility he
would not be permitted to take the drug test and that the City
of Durham would be notified of his refusal to test. The City of
Durham terminated plaintiff’s employment that same day.
On 1 December 2009, the City of Durham notified the North
Carolina Department of Motor Vehicles (“DMV”) that plaintiff had
refused a random drug test. The DMV suspended plaintiff’s
commercial driver’s license (“CDL”) as a result.
On 14 December 2009, plaintiff was reinstated to his
position with the City of Durham upon passing a drug test. On
21 December, the City of Durham notified the DMV that it was
unclear whether plaintiff had actually refused to take the drug
test on 25 November; the DMV reinstated plaintiff’s CDL license
but not did remove a notation on plaintiff’s record indicating
he refused a drug test.
On 21 August 2012, plaintiff filed a complaint against the
City of Durham for specific performance, intentional infliction
of emotional distress and defamation of character. On 23 March
2013, the City of Durham filed motions to dismiss pursuant to -3- N.C. R. Civ. P. 12(b)(1), (2), and (6). On 11 April 2013, the
trial court granted the City of Durham’s motions to dismiss.
Plaintiff appeals.
_________________________________
Plaintiff’s sole argument on appeal is that the trial court
erred in granting the City of Durham’s motion to dismiss his
specific performance claim under Rule 12(b)(6) for failure to
state a claim upon which relief may be granted. We disagree.
"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 (2003).
The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of 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.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615
(1979) (citations omitted), disapproved of on other grounds by
Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
It is well-settled that a plaintiff's claim is properly dismissed under Rule 12(b)(6) when one of the following three conditions -4- is satisfied: (1) the complaint on its face reveals that no law supports the claim; (2) the complaint on its face reveals the absence of facts sufficient to make a valid claim; or (3) the complaint discloses some fact that necessarily defeats the claim.
Woolard v. Davenport, 166 N.C. App. 129, 133, 601 S.E.2d 319,
322 (2004) (citation omitted).
Plaintiff argues that the trial court erred in granting the
City of Durham’s motion to dismiss under Rule 12(b)(6) because
plaintiff’s complaint for specific performance was sufficiently
pleaded to survive a motion to dismiss. The remedy of specific
performance is used "to compel a party to do precisely what he
ought to have done without being coerced by the court." McLean
v. Keith, 236 N.C. 59, 71, 72 S.E. 2d 44, 53 (1952) (citation
omitted). “The party claiming the right to specific performance
must show the existence of a valid contract, its terms, and
either full performance on his part or that he is ready, willing
and able to perform.” Munchak Corp. v. Caldwell, 301 N.C. 689,
694, 273 S.E.2d 281, 285 (1981) (citation omitted). Even if a
party can show a breach of a valid contract, “[s]pecific
performance will not be decreed unless the terms of the contract
are so definite and certain that the acts to be performed can be
ascertained and the court can determine whether or not the
performance rendered is in accord with the contractual duty -5- assumed.” N.C. Med. Soc’y v. N.C. Bd. of Nursing, 169 N.C. App.
1, 11, 610 S.E.2d 722, 727—28 (2005) (citations omitted).
Plaintiff contends that he pled all three elements required
for specific performance in his complaint. Plaintiff argues
that he established a valid contract by stating in his complaint
that “[plaintiff] is an employee of the City of Durham, and was
so employed in Solid Waste Management as a driver on November
25, 2009[,]” “[the] City of Durham is the employer of Plaintiff
. . . and was his employer on November 25, 2009[,]” that
defendant reported to and was fired by the City of Durham’s
Human Resources department after being refused for drug testing,
“[t]hat on December 14, 2009, Plaintiff’s job position with the
City of Durham was reinstated by the City of Durham[,]” and that
the city manager for the City of Durham wrote to the DMV on
plaintiff’s behalf to have plaintiff’s CDL certification
reinstated. In its answer to plaintiff’s complaint, and again
at the hearing on the City of Durham’s motions to dismiss, the
City of Durham conceded to the trial court that plaintiff was,
and remains, their employee. However, plaintiff did not
provide a copy of his employment agreement with the City of
Durham in his complaint, nor did he present evidence at the
hearing regarding his terms of employment with the City of -6- Durham. As plaintiff’s complaint must be liberally construed,
we find that plaintiff has alleged sufficient facts to show the
existence of a valid contract. Moreover, the City of Durham’s
acknowledgement of an employee-employer relationship with
plaintiff provides evidence that a valid contract did exist
between the parties.
To sustain a claim for specific performance, plaintiff must
also show the terms of the contract.
The sole function of the equitable remedy of specific performance is to compel a party to do that which in good conscience he ought to do without court compulsion. The remedy rests in the sound discretion of the trial court, and is conclusive on appeal absent a showing of a palpable abuse of discretion.
Munchak Corp. v. Caldwell, 46 N.C. App. 414, 418, 265 S.E.2d
654, 657 (1980) (citations omitted), modified in part, 301 N.C.
689, 273 S.E.2d 281 (1981).
Plaintiff argues that he “alleged relevant, specific terms
of this contract in his complaint” because “[a] contract that
requires an employee to hold a CDL requires both employer and
employee to comply with these laws, and is therefore a term of
the contract.” In his complaint, plaintiff stated that: his job
required him to have a CDL; to keep his CDL he had to submit to
random drug screenings; the City of Durham violated its drug -7- testing policies by failing to establish a chain of custody on
plaintiff’s drug test refusal when it terminated plaintiff; and
because the City of Durham did not follow its own procedures
regarding chain of custody, plaintiff’s “CDL and record was
blemished.” The trial court, in granting the City of Durham’s
motion to dismiss, noted that plaintiff failed to sufficiently
plead the terms or elements of specific performance. We agree,
as by not including the City of Durham’s drug testing policies
or his employment documentation with or in his complaint,
plaintiff has failed to provide the specific terms of the
policies upon which his complaint is based. "Specific
performance will not be decreed unless the terms of the contract
are so definite and certain that the acts to be performed can be
performance rendered is in accord with the contractual duty
assumed." N.C. Med. Soc'y, 169 N.C. App. at 11, 610 S.E.2d at
727—28. As such, without evidence of the contract and its terms
the trial court could not ascertain “the acts to be performed”
or whether “the performance rendered [was] in accord” with those
terms. Accordingly, the trial court did not err in dismissing
plaintiff’s claim for specific performance for failure to
demonstrate the required elements of the claim. -8- Affirmed.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).