Green v. Harbour

437 S.E.2d 719, 113 N.C. App. 280, 1994 N.C. App. LEXIS 6

Opinion

ARNOLD, Chief Judge.

The issue before this Court is whether the trial court erred in allowing defendants’ motion to dismiss one of plaintiffs alternative causes of action pursuant to N.C.R. Civ. P. 12(b) for failure to state a claim upon which relief could be granted. We conclude, as defendants concede, that the trial court erred in allowing defendants’ motion to dismiss.

Defendants’ motion to dismiss asserted the statute of frauds, an affirmative defense which must be pleaded. Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820 (1960); N.C. Gen. Stat. § 1A-1, Rule 8(c) (1990). “It is settled in this jurisdiction that the provisions of the statute of frauds cannot be taken advantage of by demurrer.” Weant v. McCanless, 235 N.C. 384, 386, 70 S.E.2d 196, 197 (1952). Defendants’ motion to dismiss for failure to state a claim upon which relief could be granted tests the legal sufficiency of the complaint and performs the same function as the old common law demurrer. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Therefore, defendants may not take advantage of the provisions of the statute of frauds by a motion to dismiss for failure to state a claim upon which relief could be granted. For the reasons stated, the trial court’s order must be reversed.

Reversed.

Judges WYNN and MARTIN concur.