Burgin v. Owen

640 S.E.2d 427, 181 N.C. App. 511, 2007 N.C. App. LEXIS 363

• Court: Court of Appeals of North Carolina
• Decided: February 6, 2007
• Docket: COA06-450
• Status: Published

Opinions

BRYANT, Judge.

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 was signed 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 plaintiffs complaint for failure to state a claim upon which relief may be granted and canceling the lis pen-dens. 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 & Guar. Co., 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 one of 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 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.” Page v. Lexington Ins. Co., 177, N.C. App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation omitted); see also McLamb v. T.P. Inc., 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. 52-10.

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 for specific performance, or breach of contract as to real property unless the Offer to Purchase and Contract is signed by both spouses. See 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 plaintiffs 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.¹ We hold plaintiffs complaint failed 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.

Affirmed.

Judge LEVINSON concurs. Judge TYSON dissents in a separate opinion.

1 . Defendants, in their answer, deny plaintiffs 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 Offer.