Opinion
No. COA10-726
Filed 5 April 2011
Appeal by plaintiff from order entered 22 April 2010 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 1 December 2010.
McGeachy, Hudson Zuravel, by Donald C. Hudson, for plaintiff-appellant. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for defendants-appellees.
Cumberland County No. 09 CVS 12084.
Where the plaintiff properly pled a claim for breach of contract, the trial court erred in dismissing the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2009).
I. Factual and Procedural History
For sixteen years, Eric Tucker ("plaintiff") was the head women's basketball coach at Fayetteville State University. His employment was documented by a written employment contract. The most recent contract expired on 30 June 2010. On 20 April 2009, plaintiff was told that he must resign and retire or be terminated. The reason for this request was that plaintiff cursed during basketball practices and games. Shortly thereafter, plaintiff retired.
On 23 December 2009, plaintiff filed suit against Fayetteville State University, and its chancellor, James A. Anderson (collectively "defendants"), seeking monetary damages for breach of contract. Defendants filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), (2), and (6). The trial court granted defendants' motion and dismissed the case with prejudice pursuant to Rule 12(b)(6) on 22 April 2010.
Plaintiff appeals.
II. Motion to Dismiss
In his sole argument on appeal, plaintiff contends that the trial court erred in granting defendants' motion to dismiss. We agree.
A. Standard of Review
The dismissal of a case on the basis of Rule 12(b) (6) is subject to de novo review on appeal in this Court. Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009) . For the Rule 12(b)(6) ruling, we review "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, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citing Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)).
B. Discussion
The order of the trial court states "that plaintiff's complaint fails to state a claim upon which relief can be granted. "This tracks the language of N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2009). It is thus clear that the trial court dismissed plaintiff's action pursuant to Rule 12(b)(6). We do not consider the other grounds for dismissal asserted in defendants' motion to dismiss.
Plaintiff's complaint asserts a claim for monetary damage based upon breach of contract. In order to allege a breach of contract, plaintiff must assert "(1) [the] existence of a valid contract and (2) breach of the terms of that contract." Becker v. Graber Builders, Inc., 149 N.C. App. 787, 792, 561 S.E.2d 905, 909 (2002) (quoting Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000)). "[W]here the complaint alleges each of these elements, it is error to dismiss a breach of contract claim under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)." McLamb v. T.P. Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (citation omitted), disc. review denied, 360 N.C. 290, 627 S.E.2d 621 (2006) .
Paragraph four of plaintiff's complaint asserts: "[t]hat the Plaintiff, ERIC TUCKER, was employed under written contract with the Defendant, FAYETTEVILLE STATE UNIVERSITY, . . . and that said contract was to terminate, unless amended, on June 30, 2010." Even though plaintiff did not attach a copy of this written contract to the complaint, we are required to assume that his employment was pursuant to the written contract as alleged, and that plaintiff was not an at-will employee. See Harris, 85 N.C. App. at 670, 355 S.E.2d at 840. Plaintiff properly pled the existence of a contract.
The second element of a breach of contract claim is that the terms of the contract were in fact breached by the defendant. Plaintiff alleged that his retirement "constituted a forced retirement," and that this was a termination of his contract in breach of its provisions. This is a sufficient allegation of breach of contract. Without having the actual contract before us, we cannot ascertain whether the forced retirement of plaintiff actually constituted a breach of the contract. However, this is an issue to be determined either by summary judgment or trial, and not at the motion to dismiss stage of the proceedings. It was error for the trial court to dismiss upon a Rule 12(b)(6) motion.
Whether plaintiff's decision to retire constituted an election of remedies is a matter of affirmative defense, State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App 691, 704, 535 S.E.2d 84, 92-93 (2000) (citations omitted), which must be plead by defendants. As an affirmative defense, defendants bear the burden of proof. This was not an appropriate basis for dismissal upon a Rule 12(b)(6) motion, since defendants had not yet filed an answer and asserted any defenses.
REVERSED AND REMANDED.
Judges STEPHENS and HUNTER, Jr., ROBERT N. concur.
Report per Rule 30(e).