{ "id": 8527807, "name": "CINCINNATI THERMAL SPRAY, INC., Plaintiff v. PENDER COUNTY, Defendant", "name_abbreviation": "Cincinnati Thermal Spray, Inc. v. Pender County", "decision_date": "1991-01-15", "docket_number": "No. 905SC324", "first_page": "405", "last_page": "409", "citations": [ { "type": "official", "cite": "101 N.C. App. 405" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "333 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "224", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691903 ], "year": 1985, "pin_cites": [ { "page": "278", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0276-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 159-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "279 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170550 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0601-01" ] }, { "cite": "182 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567198, 8567093, 8567125, 8567165, 8567230 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0348-04", "/nc/279/0348-01", "/nc/279/0348-02", "/nc/279/0348-03", "/nc/279/0348-05" ] }, { "cite": "179 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 692", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555431 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0692-01" ] } ], "analysis": { "cardinality": 407, "char_count": 7207, "ocr_confidence": 0.763, "pagerank": { "raw": 3.294450331073846e-07, "percentile": 0.8715152891153114 }, "sha256": "3b6c0b51c5b4b37cfd5a483dd4a83ecc4c87c3f83c989ccaa46a92a9232077dc", "simhash": "1:0701ed725b5b1e5f", "word_count": 1141 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Lewis concur." ], "parties": [ "CINCINNATI THERMAL SPRAY, INC., Plaintiff v. PENDER COUNTY, Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nCincinnati Thermal Spray, Inc., filed suit against Pender County alleging breach of contract and fraudulent misrepresentation stemming from plaintiffs purchase and development of property in Pender County. Defendant filed a motion to dismiss for failure to state a claim upon which relief can be granted. The trial court dismissed plaintiff\u2019s complaint.\nPlaintiff appeals to this Court asserting that the allegations of its claim based on breach of contract and its claim based on fraud and misrepresentation are sufficient to state a claim upon which relief may be granted. We affirm.\nOur review of the trial court\u2019s dismissal of plaintiff\u2019s complaint is to determine whether the pleading was legally sufficient. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). The issue is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. Brewer v. Hatcher, 52 N.C. App. 601, 279 S.E.2d 69 (1981).\nIn considering a motion to dismiss, the allegations in plaintiff\u2019s complaint are treated as true. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Plaintiff alleges that defendant, through its agent and employee, Cathy Bryan, entered into an oral agreement wherein defendant agreed to cooperate with plaintiff in the provision of adequate water and sewer systems for plaintiff\u2019s proposed facility. Plaintiff alleges that it agreed to purchase the property in Pender County because of defendant\u2019s promise to cooperate with plaintiff in construction of adequate water and sewer facilities. Plaintiff claims that by reason of defendant\u2019s failure to perform as agreed, plaintiff has sustained damages in excess of $40,000.\nSecond, plaintiff claims that Ms. Bryan in her capacity as employee of defendant represented to plaintiff:\n(1) That a permit existed to allow use of the existing septic system on the above described property for twenty-five (25) employees;\n(2) That money had been appropriated by the Pender County Board of Commissioners for a water and sewer system which would be in place within twelve months.\nIn its complaint, Cincinnati Thermal contends these representations were known to be false when made and that they were made to induce plaintiff to purchase the property in Pender County. Plaintiff alleges that, as a result of these misrepresentations made by the defendant, plaintiff has been defrauded and damaged in an amount in excess of $40,000.\nIn its answer, defendant contends that no valid contract was formed as a result of the discussions between plaintiff and Ms. Bryan since the Pender County Board of Commissioners took no official action authorizing the alleged representations made by Ms. Bryan. We agree.\nN.C. Gen. Stat. \u00a7 159-28(a) sets forth the requirements and obligations that must be met before a county may incur contractual obligations. N.C. Gen. Stat. \u00a7 159-28(a) in pertinent part reads:\nNo obligation may be incurred in a program, function, or activity accounted for in a fund included in the budget ordinance unless the budget ordinance includes an appropriation authorizing the obligation and an unencumbered balance remains in the appropriation sufficient to pay in the current fiscal year the sums obligated by the transaction for the current fiscal year. No obligation may be incurred for a capital project or a grant project authorized by a project ordinance unless that project ordinance includes an appropriation authorizing the obligation and an unencumbered balance remains in the appropriation sufficient to pay the sums obligated by the transaction. If an obligation is evidenced by a contract or agreement requiring the payment of money or by a purchase order for supplies and materials, the contract, agreement, or purchase order shall include on its face a certificate stating that the instrument has been preaudited to assure compliance with this subsection. The certificate, which shall be signed by the finance officer or any deputy finance officer approved for this purpose by the governing board, shall take substantially the following form:\n\u201cThis instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act.\n(Signature of finance officer).\u201d\nPlaintiff has made no showing that such a certificate of compliance authorizing construction of water and sewer facilities exists. Further, defendant argues that none exists.\nDismissal of a complaint ,is proper . . . when one or more of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiffs claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats the plaintiff\u2019s claim.\nOates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985) (citations omitted). Therefore, we hold that plaintiff\u2019s first claim for relief fails because plaintiff is unable to show that N.C. Gen. Stat. \u00a7 159-28(a) has been followed.\nPlaintiff\u2019s second claim for relief alleges that Ms. Bryan, as agent of defendant, made certain factual representations to plaintiff which were false when made and known to be false when made. Plaintiff has cited no authority for the proposition that a county is liable for fraud because of the actions of its employees, and we are aware of none. Thus, we hold that the trial court did not err in concluding that plaintiff\u2019s second claim for relief also fails.\nAffirmed.\nJudges Wells and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Burney, Burney, Barefoot & Bain, by Mary Elizabeth Wertz, for plaintiff appellant.", "Womble Carlyle Sandridge & Rice, by Johnny M. Loper and David R. Guin, for defendant appellee." ], "corrections": "", "head_matter": "CINCINNATI THERMAL SPRAY, INC., Plaintiff v. PENDER COUNTY, Defendant\nNo. 905SC324\n(Filed 15 January 1991)\n1. Counties \u00a7 52 (NCI4th)\u2014 promise of cooperation in constructing water and sewer facilities \u2014 no breach of contract\nA complaint alleging that Pender County breached an oral contract to cooperate with plaintiff in the provision of adequate water and sewer systems for plaintiff\u2019s proposed facility failed to state a claim upon which relief could be granted because plaintiff was unable to show compliance with N.C.G.S. \u00a7 159-28(a), which requires a certificate of compliance authorizing construction of water and sewer facilities.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7\u00a7 494, 496, 497.\n2. Counties \u00a7 36 (NCI4th)\u2014 fraudulent representations by agent of county \u2014 county not liable\nA complaint alleging that an agent of defendant made certain factual representations to plaintiff which were false when made and known to be false when made was properly dismissed for failure to state a claim upon which relief could be granted because there is no authority for the proposition that a county is liable for fraud because of the actions of its employees.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7\u00a7 495, 501.\nAPPEAL by plaintiff from order entered 4 December 1989 by Judge Ernest B. Fullwood in PENDER County Superior Court. Heard in the Court of Appeals 23 October 1990.\nBurney, Burney, Barefoot & Bain, by Mary Elizabeth Wertz, for plaintiff appellant.\nWomble Carlyle Sandridge & Rice, by Johnny M. Loper and David R. Guin, for defendant appellee." }, "file_name": "0405-01", "first_page_order": 433, "last_page_order": 437 }