RGK, Inc. v. United States Fidelity & Guaranty Co.

235 S.E.2d 234, 292 N.C. 668, 1977 N.C. LEXIS 1168
CourtSupreme Court of North Carolina
DecidedJune 13, 1977
Docket111
StatusPublished
Cited by34 cases

This text of 235 S.E.2d 234 (RGK, Inc. v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RGK, Inc. v. United States Fidelity & Guaranty Co., 235 S.E.2d 234, 292 N.C. 668, 1977 N.C. LEXIS 1168 (N.C. 1977).

Opinions

LAKE, Justice.

The sole question before us on this appeal is the correctness of the judgment on the pleadings in favor of the defendant, the alleged basis of which is the failure of the complaint to state a claim on which relief may be granted. Thus, we are not concerned here with whether the plaintiff, if permitted to proceed with trial of this action, can hit a home run or will strike out but only with whether, on the facts alleged, he is entitled to come to bat. In our opinion he is and, therefore, the judgment of the Court of Appeals should be affirmed.

Rule 8 of the Rules of Civil Procedure, G.S. 1A-1, provides:

“General rules of pleadings.
“(a) Claims for relief. — A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, shall contain
“(1) A short and plain statement of the claim sufficiently particular to give the court and the parties [674]*674notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and
“(2) A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
Í ‡ $
“(e) Pleading to be concise and direct; consistency.—
“ (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
* * *
“(f) Constmction of pleadings. — All pleadings shall be so construed as to do substantial justice.”

“A motion for judgment on the pleadings ‘is not favored by the courts; pleadings alleged to state- no cause of action or defense will be liberally construed in favor of the pleader.’ 51 Am. Jur., Pleadings, § 336.” Powell v. Powell, 271 N.C. 420, 156 S.E. 2d 691 (1967) ; Edwards v. Edwards, 261 N.C. 445, 135 S.E. 2d 18 (1964). In the leading case on this question in this Court, we said that a motion to dismiss under Rule 12(b) (6) for failure to state a claim upon which relief can be granted is the modern equivalent of a demurrer under our former Code of Civil Procedure. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). We there said, “[W]e conclude that the legislature intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of ‘notice pleading.’ * * * Under the ‘notice theory of pleading’ a statement of claim is adequate if it gives sufficient notice of the claim asserted ‘to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought.” We also said: “A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and — by using the rules provided for obtaining pretrial discovery — to get any additional information he may need to prepare for trial.” Nevertheless, the plaintiff’s complaint must allege enough “to give the substantive elements of his claim.” 5 Wake Forest Intra. L. Rev. 70, 73; Sutton v. Duke, [675]*675supra. USF&G contends the complaint in this action does not do this.

In Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 160 S.E. 2d 476 (1968), we said, “In an action for breach of a building or construction contract — just as in any other contract case — the complaint must allege the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach.” In Wilmington v. Schutt, 228 N.C. 285, 45 S.E. 2d 364 (1947), speaking through Justice Barnhill, later Chief Justice, this Court said, omitting citations:

“There is no rule which requires a plaintiff to set forth in his complaint the full contents of the contract which is the subject matter of his action or to incorporate the same in the complaint by reference to a copy thereof attached as an exhibit. He must allege in a plain and concise manner the material, ultimate facts which constitute his cause of action. The production of evidence to support the allegations thus made may and should await the trial.”

In Sossamon v. Cemetery, Inc., 212 N.C. 535, 193 S.E. 720 (1937), speaking through Chief Justice Stacy, this Court said, omitting citations:

“The question for decision is whether it is mandatory in an action on a written contract to make the entire writing a part of the complaint. The answer is ‘No,’ especially where the part omitted from the complaint, as in the instant case, is in the possession of the defendant. An allegation containing the substance of the agreement, as in the present complaint, will suffice as against a demurrer.”

This principle of pleading, well established under the former Code, is not specifically set forth in the present Rules of Civil Procedure, G.S. Chapter 1A, but it is implicit in the present requirement of Rule 8 that the plaintiff’s claim for relief be set forth in “a short and plain statement of the claim” and that “each averment of a pleading shall be simple, concise, and direct.”

Relying upon Builders Corp. v. Casualty Co., 236 N.C. 513, 73 S.E. 2d 155 (1952), which we shall discuss below, the defendant contends that the complaint is deficient because the bond, [676]*676on which the plaintiff sues, a copy of which is attached to and made part of the complaint, expressly incorporates into itself, by reference, the construction contract between Cecil’s and Fairway and this contract is not attached to or set forth in the complaint. It is a matter of common knowledge that such contracts, themselves, usually incorporate, by reference, the specifications and plans, including blueprints, of the architect pursuant to which the prime contractor promises to build the structure upon the land of the owner. To hold that, in order to resist successfully a motion to dismiss, a materialman, who sues on a contractor’s payment bond, must set forth in his complaint, by attachment or otherwise, the contract between the builder and the owner, including all plans and specifications for the construction of an apartment complex, would make a farce of the requirement of the present rules that the plaintiff state his claim in a “short and plain statement * * * simple, concise, and direct.” If the complaint, sufficient upon its face to “give the court and the parties notice of the transactions * * * intended to be proved showing that the pleader is entitled to relief,” does not correctly allege the contractual undertaking of the defendant, it is a simple matter for the defendant, in his answer, to deny the making of the alleged contract and put the plaintiff to his proof thereof, whether the supposed inaccuracy be due to some provision in the document incorporated by reference into the contract sued upon or otherwise.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Barings LLC v. Fowler
2025 NCBC 6 (North Carolina Business Court, 2025)
Turpin v. Charlotte Latin Sch.
Court of Appeals of North Carolina, 2024
Johnson v. Cricket Council USA Inc.
E.D. North Carolina, 2023
Graham v. Anderson
E.D. North Carolina, 2023
BEATTY v. PRUITTHEALTH INC.
M.D. North Carolina, 2022
VRX USA, LLC v. VRX Ventures, LTD
W.D. North Carolina, 2020
Price v. Pierce
E.D. North Carolina, 2020
Intersal, Inc. v. Hamilton
Supreme Court of North Carolina, 2019
Vanguard Pai Lung, LLC v. Moody
2019 NCBC 38 (North Carolina Business Court, 2019)
Howe v. Links Club Condo. Ass'n, Inc.
823 S.E.2d 439 (Court of Appeals of North Carolina, 2018)
Wray v. City of Greensboro
802 S.E.2d 894 (Supreme Court of North Carolina, 2017)
Schultheis v. Hatteras Capital Inv. Mgmt., LLC
2014 NCBC 23 (North Carolina Business Court, 2014)
Southern Seeding Service, Inc. v. W.C. English, Inc.
719 S.E.2d 211 (Court of Appeals of North Carolina, 2011)
Beachcrete, Inc. v. Water Street Center Associates, L.L.C.
615 S.E.2d 719 (Court of Appeals of North Carolina, 2005)
North Carolina Medical Society v. North Carolina Board of Nursing
610 S.E.2d 722 (Court of Appeals of North Carolina, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
235 S.E.2d 234, 292 N.C. 668, 1977 N.C. LEXIS 1168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rgk-inc-v-united-states-fidelity-guaranty-co-nc-1977.