Cardinal Travel Serv., Inc. v. Advance Stores Co.

2022 NCBC 12

• Court: North Carolina Business Court
• Decided: February 25, 2022
• Docket: 21-CVS-8406
• Status: Published

Opinion

Cardinal Travel Serv., Inc. v. Advance Stores Co., 2022 NCBC 12.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION WAKE COUNTY 21 CVS 8406

CARDINAL TRAVEL SERVICE, INC.,

Plaintiff and Counterclaim Defendant, ORDER AND OPINION ON DEFENDANT’S PARTIAL MOTION TO v. DISMISS VERIFIED COMPLAINT ADVANCE STORES COMPANY, INCORPORATED,

Defendant and Counterclaim Plaintiff.

1. THIS MATTER is before the Court upon Defendant Advance Stores

Company, Incorporated’s (“Defendant”) Partial Motion to Dismiss Verified Complaint

(the “Motion”) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil

Procedure (“Rule(s)”). (ECF No. 13.)

2. The Motion seeks the dismissal of Plaintiff Cardinal Travel Service, Inc.’s

(“Plaintiff”) claims for unfair and deceptive trade practices under N.C.G.S. § 75-1.1

(“UDTPA”) and for “course of dealing,” each arising from a dispute over payment for

travel services provided by Plaintiff to Defendant.

3. Having considered the Motion, the related briefing, and the arguments of

counsel at the hearing on the Motion, the Court, in the exercise of its discretion and

for the reasons set forth below, DENIES Defendant’s Motion.

Jordan Price Wall Gray Jones & Carlton, PLLC, by Matthew J. Waters and Rhian C. Mayhew, for Plaintiff Cardinal Travel Service, Inc. Williams Mullen, by Alexander M. Gormley, Lauren E. Fussell, and Camden R. Webb, for Defendant Advance Stores Company, Inc.

Bledsoe, Chief Judge. I.

FACTUAL AND PROCEDURAL BACKGROUND

4. The Court does not make findings of fact on a motion to dismiss under Rule

12(b)(6), reciting instead only those facts in the Verified Complaint relevant to the

Court’s determination of the Motion.

5. Plaintiff initiated this action on 18 June 2021 asserting claims for unjust

enrichment, (Verified Compl. ¶¶ 102–09 [hereinafter “Compl.”], ECF No. 3), “course

of dealing,” (Compl. ¶¶ 110–13), and unfair and deceptive trade practices under the

UDTPA, (Compl. ¶¶ 114–26).

6. On 27 August 2021, Defendant filed the Motion, seeking to dismiss

Plaintiff’s claims under the UDTPA and for “course of dealing.”

7. On 27 January 2022, Plaintiff voluntarily dismissed its UDTPA claim

without prejudice. 1

8. The parties agreed in their briefing on the Motion that Plaintiff’s “course of

dealing” claim was mislabeled and should properly be considered a claim for breach

of an implied-in-fact contract. 2 Rather than withdraw the Motion based on this

1 (Pl.’s Notice Voluntary Dismissal Without Prejudice, ECF No. 35.)

2 (Pl.’s Br. Opp’n Def.’s Partial Mot. Dismiss 5 [hereinafter “Pl.’s Opp’n”], ECF No. 27; Reply

to Resp. Opp’n Partial Mot. Dismiss Verified Compl. 2–3 [hereinafter “Def.’s Reply”], ECF No. 31.) agreement, however, Defendant sought a hearing, contending that the Motion still

presented an issue for judicial determination.

9. The Motion has been fully briefed, and, at Defendant’s request, the Court

held a hearing on the Motion on 23 February 2022 (the “Hearing”), at which all

parties were represented by counsel.

10. The Motion is now ripe for resolution.

II.

LEGAL STANDARD

11. “A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the

complaint by presenting ‘the question whether, as a matter of law, the allegations of

the complaint, treated as true, are sufficient to state a claim upon which relief can be

granted under some [recognized] legal theory.’ ” Forsyth Mem’l Hosp., Inc. v.

Armstrong World Indus., Inc., 336 N.C. 438, 442 (1994) (alteration in original)

(quoting Lynn v. Overlook Dev., 328 N.C. 689, 692 (1991)).

III.

ANALYSIS

12. The Court first notes that Plaintiff’s dismissal of its UDTPA claim renders

Defendant’s Motion moot as to that claim. The Court shall therefore deny

Defendant’s Motion in this respect.

13. The Court next notes that the parties agree that Plaintiff’s “course of

dealing” claim is not a properly titled cause of action and instead is a claim for breach of an implied-in-fact contract. 3 Defendant also acknowledged at the Hearing the legal

principle that “[t]he fact that [a] plaintiff might have mislabeled his claim . . . is of no

significance in ruling on [a] motion to dismiss pursuant to Rule 12(b)(6).” Warren v.

Halifax Cnty., 90 N.C. App. 271, 273 (1988). Indeed, North Carolina law is clear that

“[t]he question for the court is whether, as a matter of law, the allegations of the

complaint, treated as true, are sufficient to state a claim upon which relief may be

granted under some legal theory, whether properly labeled or not.” Harris v. NCNB

Nat’l Bank, 85 N.C. App. 669, 670 (1987) (emphasis added).

14. Having acknowledged these facts and the applicable law, Defendant elected

not to argue at the Hearing that Plaintiff’s allegations supporting its “course of

dealing” claim failed to state a claim under Rule 12(b)(6) and instead urged the Court

to order Plaintiff to file an amended complaint because, according to Defendant, the

Complaint fails to put Defendant on notice of the terms of the implied-in-fact contract

on which Plaintiff’s claim for breach is based. Defendant’s argument and request,

however, disregard the fact that Defendant brought its Motion seeking dismissal for

failure to state a claim under Rule 12(b)(6)—not for a more definite statement under

Rule 12(e), the relief Defendant appeared to seek at the Hearing.

15. The resolution of this aspect of the Motion is straightforward. The parties

agree that Plaintiff’s “course of dealing” claim is actually a claim for breach of an

implied-in-fact contract, and the Court is satisfied from its review that the Complaint

states a claim to that effect, even if mislabeled. That conclusion marks the end of the

3 (See Pl.’s Opp’n 5; Def.’s Reply 2–3.) Court’s inquiry under Rule 12(b)(6), and any further relief Defendant may wish to

seek must be by separate motion under appropriate authority. Defendant’s Motion

with respect to Plaintiff’s mislabeled claim for breach of an implied-in-fact contract is

without merit and shall therefore be denied.

IV.

CONCLUSION

16. WHEREFORE, for the reasons set forth above, the Court hereby:

a. DENIES the Motion as moot as to Plaintiff’s UDTPA claim; and

b. DENIES the Motion as to Plaintiff’s claim for breach of an implied-in-

fact contract (mislabeled in the Complaint as a claim for “course of

dealing”).

SO ORDERED, this the 25th day of February, 2022.

/s/ Louis A. Bledsoe, III Louis A. Bledsoe, III Chief Business Court Judge