An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1057 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
MARK TURNER AND JULIE WALLACE, Plaintiffs
v. Wake County No. 12 CVD 12054 ROBERT H. AYERS AND ANN M. AYERS, Defendants
Appeal by plaintiffs from order entered 14 March 2013 by
Judge Debra S. Sasser in Wake County District Court. Heard in
the Court of Appeals 6 February 2014.
Michael W. Strickland & Associates, P.A., by Michael W. Strickland, for plaintiff-appellants.
Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe and Mark R. Sigmon, for defendant-appellees.
CALABRIA, Judge.
Mark Turner and Julie Wallace (collectively “plaintiffs”)
appeal from the trial court’s order dismissing their complaint
against Robert H. Ayers and Ann M. Ayers (collectively
“defendants”) pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)
(2013) for failure to state a claim upon which relief could be
granted. We affirm. -2- According to the allegations in plaintiffs’ complaint, in
August 2011, plaintiffs and defendants executed an “Offer to
Purchase and Contract” (“the Contract”) in which plaintiffs
agreed to purchase defendants’ real property in Raleigh, North
Carolina (“the property”). Pursuant to the terms of the
contract, plaintiffs had the property professionally inspected.
The inspection identified several defects in the property.
As a result, the parties entered into a “Due Diligence Request
and Agreement,” (“the Agreement”) whereby defendants agreed to
make repairs, including, inter alia, to “[r]emove all crawl
space insulation and replace all duct work as indicated . . . .”
[R p 9] However, defendants were unable to complete all repairs
prior to the parties’ agreed upon closing date. Consequently,
the parties mutually agreed to allow defendants to complete the
repairs after closing.
Plaintiffs later discovered that defendants failed to
properly remove and replace the crawl space insulation as
required by the Agreement. Defendants’ failure to adequately
remove the defective insulation resulted in mold spreading
throughout the crawl space. Plaintiffs demanded that defendants
remedy their deficient repairs, but defendants refused to do so. -3- On 28 August 2012, plaintiffs initiated an action against
defendants in Wake County District Court. Plaintiffs’ complaint
alleged that defendants’ failure to properly repair and replace
the crawl space insulation constituted a breach of the Contract.
On 29 October 2012, defendants filed a motion to dismiss
plaintiffs’ claim because the express terms of the Contract
stated that by closing on the property, plaintiffs agreed to
accept the property in its current condition at the time of
closing.
On 12 December 2012, plaintiffs filed an amended complaint
which added additional allegations that the parties had agreed
prior to closing to allow defendants to finish their repairs
after closing was completed. The amended complaint also
included a new claim that defendants were negligent in their
performance of the repairs. Defendants subsequently filed a new
motion to dismiss plaintiffs’ amended complaint. The trial
court conducted a hearing on defendants’ motion to dismiss on 1
March 2013. On 14 March 2013, the court entered an order
granting defendants’ motion to dismiss plaintiffs’ complaint
with prejudice. Plaintiffs appeal. -4- Plaintiffs’ sole argument on appeal is that the trial court
erred by dismissing their breach of contract claim.1
Specifically, plaintiffs contend that the allegations in their
complaint, when taken as true, demonstrate that the parties
orally modified the Contract and that defendants breached the
modified contract. We disagree.
“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). “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, aff’d per curiam,
357 N.C. 567, 597 S.E.2d 673 (2003).
In the instant case, the trial court concluded that the
express terms of the Contract necessarily defeated plaintiffs’
1 On appeal, plaintiffs do not challenge the trial court’s dismissal of their negligence claim. Therefore, it remains undisturbed. -5- claim. Initially, we note that the trial court properly
examined the Contract as part of its consideration of
defendants’ motion to dismiss because the contract was
incorporated by reference into plaintiffs’ complaint and
attached to defendants’ motion to dismiss. See Oberlin Capital,
L.P. v. Slavin, 147 N.C. App. 52, 60, 554 S.E.2d 840, 847
(2001)(“[W]hen ruling on a Rule 12(b)(6) motion, a court may
properly consider documents which are the subject of a
plaintiff's complaint and to which the complaint specifically
refers even though they are presented by the defendant.”). The
Contract stated, in relevant part: “CLOSING SHALL CONSTITUTE
ACCEPTANCE OF THE PROPERTY IN ITS THEN EXISTING CONDITION UNLESS
PROVISION IS OTHERWISE MADE IN WRITING.” The trial court
determined that plaintiffs, by executing this provision, could
not successfully pursue a breach of contract claim based upon a
defective condition of the property.
Plaintiffs do not dispute that they executed the Contract,
including the provision cited by the trial court, but they claim
that the provision was not binding since it was orally modified
by the parties. In support of this argument, they note that our
Supreme Court has held that
[t]he provisions of a written contract may be modified or waived by a subsequent parol -6- agreement, or by conduct which naturally and justly leads the other party to believe the provisions of the contract are modified or waived. This principle has been sustained even where the instrument provides for any modification of the contract to be in writing. . . .
Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628,
636, 32 S.E.2d 34, 39 (1944) (citations omitted).
However, while plaintiffs are correct that Whitehurst
permits oral modification of a contract, even when the contract
expressly requires modification to be in writing, their
complaint still fails to establish that such a modification
occurred in the instant case. As this Court has made clear, “a
modification to a contract must be supported by consideration.”
Sessler v. Marsh, 144 N.C. App.
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1057 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
MARK TURNER AND JULIE WALLACE, Plaintiffs
v. Wake County No. 12 CVD 12054 ROBERT H. AYERS AND ANN M. AYERS, Defendants
Appeal by plaintiffs from order entered 14 March 2013 by
Judge Debra S. Sasser in Wake County District Court. Heard in
the Court of Appeals 6 February 2014.
Michael W. Strickland & Associates, P.A., by Michael W. Strickland, for plaintiff-appellants.
Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe and Mark R. Sigmon, for defendant-appellees.
CALABRIA, Judge.
Mark Turner and Julie Wallace (collectively “plaintiffs”)
appeal from the trial court’s order dismissing their complaint
against Robert H. Ayers and Ann M. Ayers (collectively
“defendants”) pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)
(2013) for failure to state a claim upon which relief could be
granted. We affirm. -2- According to the allegations in plaintiffs’ complaint, in
August 2011, plaintiffs and defendants executed an “Offer to
Purchase and Contract” (“the Contract”) in which plaintiffs
agreed to purchase defendants’ real property in Raleigh, North
Carolina (“the property”). Pursuant to the terms of the
contract, plaintiffs had the property professionally inspected.
The inspection identified several defects in the property.
As a result, the parties entered into a “Due Diligence Request
and Agreement,” (“the Agreement”) whereby defendants agreed to
make repairs, including, inter alia, to “[r]emove all crawl
space insulation and replace all duct work as indicated . . . .”
[R p 9] However, defendants were unable to complete all repairs
prior to the parties’ agreed upon closing date. Consequently,
the parties mutually agreed to allow defendants to complete the
repairs after closing.
Plaintiffs later discovered that defendants failed to
properly remove and replace the crawl space insulation as
required by the Agreement. Defendants’ failure to adequately
remove the defective insulation resulted in mold spreading
throughout the crawl space. Plaintiffs demanded that defendants
remedy their deficient repairs, but defendants refused to do so. -3- On 28 August 2012, plaintiffs initiated an action against
defendants in Wake County District Court. Plaintiffs’ complaint
alleged that defendants’ failure to properly repair and replace
the crawl space insulation constituted a breach of the Contract.
On 29 October 2012, defendants filed a motion to dismiss
plaintiffs’ claim because the express terms of the Contract
stated that by closing on the property, plaintiffs agreed to
accept the property in its current condition at the time of
closing.
On 12 December 2012, plaintiffs filed an amended complaint
which added additional allegations that the parties had agreed
prior to closing to allow defendants to finish their repairs
after closing was completed. The amended complaint also
included a new claim that defendants were negligent in their
performance of the repairs. Defendants subsequently filed a new
motion to dismiss plaintiffs’ amended complaint. The trial
court conducted a hearing on defendants’ motion to dismiss on 1
March 2013. On 14 March 2013, the court entered an order
granting defendants’ motion to dismiss plaintiffs’ complaint
with prejudice. Plaintiffs appeal. -4- Plaintiffs’ sole argument on appeal is that the trial court
erred by dismissing their breach of contract claim.1
Specifically, plaintiffs contend that the allegations in their
complaint, when taken as true, demonstrate that the parties
orally modified the Contract and that defendants breached the
modified contract. We disagree.
“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). “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, aff’d per curiam,
357 N.C. 567, 597 S.E.2d 673 (2003).
In the instant case, the trial court concluded that the
express terms of the Contract necessarily defeated plaintiffs’
1 On appeal, plaintiffs do not challenge the trial court’s dismissal of their negligence claim. Therefore, it remains undisturbed. -5- claim. Initially, we note that the trial court properly
examined the Contract as part of its consideration of
defendants’ motion to dismiss because the contract was
incorporated by reference into plaintiffs’ complaint and
attached to defendants’ motion to dismiss. See Oberlin Capital,
L.P. v. Slavin, 147 N.C. App. 52, 60, 554 S.E.2d 840, 847
(2001)(“[W]hen ruling on a Rule 12(b)(6) motion, a court may
properly consider documents which are the subject of a
plaintiff's complaint and to which the complaint specifically
refers even though they are presented by the defendant.”). The
Contract stated, in relevant part: “CLOSING SHALL CONSTITUTE
ACCEPTANCE OF THE PROPERTY IN ITS THEN EXISTING CONDITION UNLESS
PROVISION IS OTHERWISE MADE IN WRITING.” The trial court
determined that plaintiffs, by executing this provision, could
not successfully pursue a breach of contract claim based upon a
defective condition of the property.
Plaintiffs do not dispute that they executed the Contract,
including the provision cited by the trial court, but they claim
that the provision was not binding since it was orally modified
by the parties. In support of this argument, they note that our
Supreme Court has held that
[t]he provisions of a written contract may be modified or waived by a subsequent parol -6- agreement, or by conduct which naturally and justly leads the other party to believe the provisions of the contract are modified or waived. This principle has been sustained even where the instrument provides for any modification of the contract to be in writing. . . .
Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628,
636, 32 S.E.2d 34, 39 (1944) (citations omitted).
However, while plaintiffs are correct that Whitehurst
permits oral modification of a contract, even when the contract
expressly requires modification to be in writing, their
complaint still fails to establish that such a modification
occurred in the instant case. As this Court has made clear, “a
modification to a contract must be supported by consideration.”
Sessler v. Marsh, 144 N.C. App. 623, 634, 551 S.E.2d 160, 166-67
(2001). “Consideration consists of any benefit, right, or
interest bestowed upon the promisor, or any forbearance,
detriment, or loss undertaken by the promisee.” Id. at 634, 551
S.E.2d at 167 (internal quotations and citations omitted).
Plaintiffs’ complaint merely alleges that the parties agreed to
allow defendants more time to complete repairs which defendants
had already agreed to perform. There are no allegations that
suggest that this oral agreement provided any additional benefit
to defendants or any “forbearance, detriment, or loss” to -7- plaintiffs. Id. Consequently, plaintiffs cannot rely upon an
oral modification of the Contract to support their breach of
contract claim.
Since plaintiffs proceeded to closing, they agreed to
accept the property in its current condition under the express
terms of the Contract. Pursuant to the Contract, they could not
thereafter claim that defendants’ repairs to the property were
inadequate. Thus, the trial court properly concluded that
plaintiffs’ complaint failed to state a valid claim for breach
of contract. The trial court’s order is affirmed.
Affirmed.
Judges STROUD and DAVIS concur.
Report per Rule 30(e).