{ "id": 8375036, "name": "JAMES A. BURGIN, Plaintiff v. WILLARD RAY OWEN and wife ARIMELLA H. OWEN, Defendants", "name_abbreviation": "Burgin v. Owen", "decision_date": "2007-02-06", "docket_number": "No. COA06-450", "first_page": "511", "last_page": "518", "citations": [ { "type": "official", "cite": "181 N.C. App. 511" } ], "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": "619 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633992 ], "year": 2005, "pin_cites": [ { "page": "580", "parenthetical": "holding trial court properly dismissed pursuant to 12(b)(6) plaintiff's claim where plaintiff did not allege existence of a valid option contract" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0577-01" ] }, { "cite": "628 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635587 ], "year": 2006, "pin_cites": [ { "page": "428", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0427-01" ] }, { "cite": "173 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354039 ], "year": 2005, "pin_cites": [ { "page": "588", "parenthetical": "holding trial court properly dismissed pursuant to 12(b)(6) plaintiff's claim where plaintiff did not allege existence of a valid option contract" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0586-01" ] }, { "cite": "558 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "355 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220182 ], "year": 2002, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0161-01" ] }, { "cite": "554 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377813 ], "year": 2001, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0052-01" ] }, { "cite": "563 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080776 ], "year": 2002, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0231-01" ] }, { "cite": "106 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "692" } ], "opinion_index": 1 }, { "cite": "249 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617955 ], "year": 1959, "pin_cites": [ { "page": "489" } ], "opinion_index": 1, "case_paths": [ "/nc/249/0486-01" ] }, { "cite": "203 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "70-71" }, { "page": "70" }, { "page": "70", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "21 N.C. App. 38", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553778 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "41" }, { "page": "41" } ], "opinion_index": 1, "case_paths": [ "/nc-app/21/0038-01" ] }, { "cite": "59 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681419 ], "year": 1860, "pin_cites": [ { "page": "72" } ], "opinion_index": 1, "case_paths": [ "/nc/59/0070-01" ] }, { "cite": "378 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "324 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485070 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/324/0326-01" ] }, { "cite": "373 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "305" } ], "opinion_index": 1 }, { "cite": "91 N.C. App. 715", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526510 ], "pin_cites": [ { "page": "723-24" } ], "opinion_index": 1, "case_paths": [ "/nc-app/91/0715-01" ] }, { "cite": "97 S.E. 750", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "751", "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "177 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653534 ], "year": 1919, "pin_cites": [ { "page": "19", "parenthetical": "emphasis supplied" } ], "opinion_index": 1, "case_paths": [ "/nc/177/0017-01" ] }, { "cite": "49 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682378 ], "opinion_index": 1, "case_paths": [ "/nc/49/0249-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 22-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "\"or by some other person by him thereto lawfully authorized\"" } ], "opinion_index": 1 }, { "cite": "371 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "366 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "568" } ], "opinion_index": 1 }, { "cite": "89 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522251 ], "year": 1988, "pin_cites": [ { "page": "371" } ], "opinion_index": 1, "case_paths": [ "/nc-app/89/0358-01" ] }, { "cite": "556 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "14" } ], "opinion_index": 1 }, { "cite": "147 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380487 ], "year": 2001, "pin_cites": [ { "page": "523" } ], "opinion_index": 1, "case_paths": [ "/nc-app/147/0520-01" ] }, { "cite": "588 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "4" } ], "opinion_index": 1 }, { "cite": "160 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958177 ], "year": 2003, "pin_cites": [ { "page": "668" } ], "opinion_index": 1, "case_paths": [ "/nc-app/160/0664-01" ] }, { "cite": "354 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "758", "parenthetical": "internal citations omitted" } ], "opinion_index": 1 }, { "cite": "85 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169904 ], "year": 1987, "pin_cites": [ { "page": "340", "parenthetical": "internal citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0338-01" ] }, { "cite": "273 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "241", "parenthetical": "internal citations omitted" }, { "page": "241" } ], "opinion_index": 1 }, { "cite": "301 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570249 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "701", "parenthetical": "internal citations omitted" }, { "page": "701" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0699-01" ] }, { "cite": "554 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "844" } ], "opinion_index": 1 }, { "cite": "147 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377813 ], "year": 2001, "pin_cites": [ { "page": "56" } ], "opinion_index": 1, "case_paths": [ "/nc-app/147/0052-01" ] }, { "cite": "563 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "274" } ], "opinion_index": 1 }, { "cite": "150 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080776 ], "year": 2002, "pin_cites": [ { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/nc-app/150/0231-01" ] } ], "analysis": { "cardinality": 757, "char_count": 17216, "ocr_confidence": 0.742, "pagerank": { "raw": 4.779401138007427e-07, "percentile": 0.9307276215717596 }, "sha256": "9298315ea57224b2d0430136cad34c5dd3827314c79475f925f319282eaa45dd", "simhash": "1:9b91ed6614dd14e6", "word_count": 2895 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "JAMES A. BURGIN, Plaintiff v. WILLARD RAY OWEN and wife ARIMELLA H. OWEN, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nJames A. Burgin (plaintiff) appeals from a 9 January 2006 order granting Willard Ray and Arimella H. Owens\u2019 (defendants\u2019) 12(b)(6) motion to dismiss plaintiff\u2019s complaint and canceling the lis pendens attached to defendants\u2019 real property.\nDefendants are owners of the subject property as tenants by the entirety, per deed recorded at Book 852, Page 533 Harnett County Registry. Defendant Willard Owen and plaintiff agreed on a purchase price of $53,000.00 for plaintiff to buy the subject property from defendants. On 26 April 2005, an Offer to Purchase and Contract was executed. The Offer to Purchase and Contract was signed by plaintiff and Willard Owen. Subsequently, plaintiff employed a real estate attorney to perform the title work and prepare a deed for closing. On 24 August 2005, the date scheduled for the real estate closing, Willard Owen delivered a letter to plaintiff stating he would not sell the subject property.\nPlaintiff commenced this action on 26 August 2005 against defendants and on 29 August 2005 filed a Notice of Lis Pendens on defendants\u2019 subject property. On 9 January 2005, the trial court entered an order dismissing plaintiffs complaint for failure to state a claim upon which relief may be granted and canceling the lis pen-dens. From this order, plaintiff appeals.\nThe dispositive issue is whether the trial court erred in granting defendants\u2019 12(b)(6) motion for failure to state a claim upon which relief may be granted. Plaintiff contends he has \u201csufficiently plead two good causes of action\u201d for specific performance and breach of contract. We disagree.\nThe standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. Country Club of Johnston County, Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002). On a motion to dismiss, the complaint\u2019s material factual allegations are taken as true. Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d 840, 844 (2001). Dismissal is proper \u201cwhen one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff\u2019s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff\u2019s claim.\u201d Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). On appeal of a 12(b)(6) motion to dismiss, this Court \u201cconducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Page v. Lexington Ins. Co., 177, N.C. App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation omitted); see also McLamb v. T.P. Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (holding trial court properly dismissed pursuant to 12(b)(6) plaintiff\u2019s claim where plaintiff did not allege existence of a valid option contract).\nNorth Carolina General Statutes, Section 39-13.6. entitled \u201cControl of real property held in tenancy by the entirety\u201d states:\n(a) A husband and wife shall have an equal right to the control, use, possession, rents, income, and profits of real property held by them in tenancy by the entirety. Neither spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner encumber any property so held without the written joinder of the other spouse. This section shall not be construed to require the spouse\u2019s joinder where a different provision is made under G.S. 39-13, G.S. 39-13.3, G.S. 39-13.4, or G.S. 52-10.\nN.C.G.S. \u00a7 39-13.6 (a) (2005) (emphasis added). Pursuant to N.C.G.S. \u00a7 39-13.6, absent written authorized agency of a spouse, tenants by the entirety cannot be the subject of a complaint for specific performance, or breach of contract as to real property unless the Offer to Purchase and Contract is signed by both spouses. See N.C.G.S. \u00a7 39-13.6 (2005). This statute gives married women equal rights to use and control and obtain income from property held as entireties.\nIn this case, plaintiff alleges in his complaint that at the time the Offer to Purchase and Contract was signed, Willard Owen stated that he was the agent for his wife, Arimella, and therefore she did not need to sign the contract to execute the sale. Plaintiff further alleges Willard Owen stated this agency relationship existed \u201cat all time herein and [Willard Owen] was acting within the scope of his authority as agent of his wife at the time of signing of the contract.\u201d Taking these allegations as true, the complaint on its face reveals that no law supports plaintiffs claim for specific performance or breach of contract. Here, the complaint shows the husband was the only seller who signed the Offer to Purchase and Contract; and there was no indication that the wife provided the husband with written authority to act on her behalf. We hold plaintiffs complaint failed to state a legally sufficient claim and therefore affirm the trial court\u2019s order granting defendants\u2019 motion to dismiss and canceling the lis pendens attached to the subject property.\nAffirmed.\nJudge LEVINSON concurs.\nJudge TYSON dissents in a separate opinion.\n. Defendants, in their answer, deny plaintiffs allegations:\nDefendant Willard Ray Owen had no authority to sign the [Offer to Purchase] on her behalf, and further no signature of the Defendant Arimella H. Owen was affixed to the Offer to Purchase by any person, at any time. The defendant Willard Ray Owen specifically denies making any representations to the plaintiff regarding being an agent for his wife, or regarding the requirement that she sign the Offer.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion holds \u201cplaintiff\u2019s complaint failed to state a legally sufficient claim and .'. . affirm[s] the trial court\u2019s order granting defendants\u2019 [Rule 12(b)(6)] motion to dismiss and canceling the lis pendens attached to the subject property.\u201d Taking the allegations in plaintiff\u2019s complaint as true, his allegations state a claim for which relief can be granted to survive defendants\u2019 Rule 12(b)(6) motion to dismiss. I vote to reverse the trial court\u2019s order and respectfully dissent.\nI. Standard of Review\nOur Supreme Court has stated:\nThe test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. A complaint may be dismissed on motion filed under Rule 12 (b) (6) if it is clearly without merit; such lack of merit may consist of an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. For the purpose of a motion to dismiss, the allegations of the complaint are treated as true. A complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and where allegations contained therein are sufficient to give a defendant notice of the nature and basis of plaintiffs\u2019 claim so as to enable him to answer and prepare for trial.\nForbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981) (internal citations omitted) (emphasis supplied).\nThis Court has stated:\n[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief. In analyzing the sufficiency of the complaint, the complaint must be liberally construed.\nDixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) (internal citations omitted).\nII. Motion to Dismiss\n. Plaintiff asserts he properly alleged a claim for breach of contract for sale of real property and entitlement to specific performance, and argues the trial court erred by granting defendants\u2019 Rule 12(b)(6) motion to dismiss. I agree.\n\u201cThe elements of breach of contract are (1) the existence of a valid contract and (2) breach of the terms of the contract.\u201d Long v. Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 4 (2003). \u201c[Specific performance is a proper remedy for enforcement of [a contract] to purchase real estate.\u201d Rainbow Props. v. Wilkinson, 147 N.C. App. 520, 523, 556 S.E.2d 11, 14 (2001). Where real property is the subject to the parties\u2019 agreement, either party may seek specific performance of the executory contract without showing the inadequacy of the legal remedy. Deans v. Layton, 89 N.C. App. 358, 371, 366 S.E.2d 560, 568, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 276 (1988).\nA. Statute of Frauds\nA contract for the sale of real property must satisfy the statute of frauds. N.C. Gen. Stat. \u00a7 22-2 (2005) states:\nAll contracts to sell or convey any lands, tenements or heredita-ments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.\n(Emphasis supplied). Our Supreme Court has stated:\nIn various decisions construing the statute, it is held that the party to be charged is the one against whom relief is sought; and if the contract is sufficient to bind him, he can be proceeded against though the other could not be held, because as to him the statute is not sufficiently complied with. As expressed in Mizell, Jr. v. Burnett, 49 N.C. 249: Under the statute of frauds, a contract in writing to sell land, signed by the vendor, is good against him, although the correlative obligation to pay the price is not in writing and cannot be enforced against the purchaser.\nLewis v. Murray, 177 N.C. 17, 19, 97 S.E. 750, 751 (1919) (emphasis supplied).\nIn Brooks Distributing Co. v. Pugh, our Supreme Court reversed and adopted per curiam the rationale of Judge Cozort\u2019s dissenting opinion which states in relevant part:\nIt is inappropriate to consider, for purposes of a motion under 12(b)(6), whether the contract fails to comport with the statute of frauds, because the defense that the statute of frauds bars enforcement of a contract is an affirmative defense that can only be raised by answer or reply.\n91 N.C. App. 715, 723-24, 373 S.E.2d 300, 305 (Cozort, J., dissenting) (emphasis supplied), rev\u2019d per curiam, 324 N.C. 326, 378 S.E.2d 31 (1989). The statute of frauds or other statutory defenses are affirmative defenses, which \u201ccan only be raised by answer or reply\u201d and cannot sustain a legal basis to affirm the trial court\u2019s grant of defendants\u2019 Rule 12(b)(6) motion to dismiss. Id; N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (2005).\nB. Agent, of \u201cParty to be Charged\u201d\nIn addition, if agent of the party \u201cto be charged\u201d signs the contract for the purchase of real property, the contract will be enforceable against the principal whether present or not. Blacknall v. Parish, 59 N.C. 70, 72 (1860); see also N.C. Gen. Stat. \u00a7 22-2 (\u201cor by some other person by him thereto lawfully authorized\u201d).\nIn Reichler v. Tillman, this Court reviewed facts and allegations very similar to those at bar and held:\n[U]nder the pleadings in this case, in which plaintiffs alleged and defendants denied that plaintiffs entered into a binding contract with both defendants, plaintiffs are free to offer such evidence as they may have to show that the husband-defendant was authorized by his wife to act as her agent to contract to sell the lands belonging to both as tenants by the entirety. There was no necessity that plaintiffs allege that the contract was executed by the feme defendant through an agent.\n21 N.C. App. 38, 41, 203 S.E.2d 68, 70-71 (1974). Judge Parker (now Chief Justice), joined by Judges (later Justices) Britt and Vaughan unanimously held the plaintiffs\u2019 allegations of breach of contract and for specific performance were sufficient to survive a Rule 12(c) motion for judgment on the pleadings when the plaintiffs alleged they \u201centered into a binding contract with defendants\u201d for the purchase of the land, even though the \u201cwritten \u2018memorandum of said contract\u2019 which was incorporated by reference into the complaint made no reference to the feme defendant and was not signed by her.\u201d Id. at 40, 203 S.E.2d at 70.\nIn so ruling, the Court quoted from Lewis v. Allred, 249 N.C. 486, 489, 106 S.E.2d 689, 692 (1959), and stated:\nThe owner of real estate may sell such property through an agent, and when so acting the owner is not required to sign the agreement or to communicate with the purchaser. Moreover, the authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. The agent may sign the contract to sell and convey in his own name or in the name of his principal or principals. Furthermore, the authority of an agent to sell the lands of another may be shown aliunde or by parol. Hargrove v. Adcock, supra.\nReichler, 21 N.C. App. at 41, 203 S.E.2d at 70 (citations omitted).\nHere, plaintiffs complaint alleged:\n4. On April 26, 2005, an Offer to Purchase and Contract was entered into between the Plaintiff and the Defendants, and a copy of such contract to purchase is attached hereto marked Exhibit A and incorporated herein by reference to the same extent as if set forth herein in full. At the time of the execution of the Offer to Purchase and Contract, Defendant Willard Ray Owen stated that he was the agent for his wife and that she did not need to sign the contract and agreement which is attached hereto as Exhibit A.\n. . . .\n10. Defendant Willard Ray Owen was acting as the agent of his wife, Arimella H. Owen, at all times herein alleged and was acting within his scope of authority as agent of his wife at the time of the signing of the contract which is attached hereto as Exhibit A.\nTaking plaintiffs allegations as true, as required under a Rule 12(b)(6) motion, this complaint properly alleged the elements of breach of contract for the sale of real property. Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002). The majority\u2019s opinion correctly recognizes on a motion to dismiss, the complaint\u2019s material factual alie-gations are taken as true and liberally construed in plaintiff\u2019s favor. Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d 840, 844 (2001).\nIt is undisputed that defendant Willard Ray Owen an owner signed the contract as seller. Plaintiff alleges defendant, Willard Ray Owen, also signed the contract as the agent for his wife, Arimella H. Owen. Whether that agent\u2019s authority is oral or written is immaterial at this stage of the proceeding. Defendant cannot assert any defenses on its Rule 12(b)(6) motion. The court must consider \u201cas true\u201d plaintiff\u2019s allegation that defendant, Willard Ray Owen, signed the contract as agent for his wife. Plaintiff alleged both defendants signed the contract and properly pled all required elements for breach of contract and entitlement to a remedy for specific performance. Plaintiff is entitled to offer proof, through discovery, affidavit, or testimony, to prove his allegations of agency. The trial court erred by granting defendants\u2019 Rule 12(b)(6) motion and dismissing plaintiff\u2019s claims.\nIII. Conclusion\nPlaintiff properly pled a claim for breach of contract for the sale of real property and entitlement to specific performance of defendants\u2019 contractual duty to convey. Under clearly established precedents, the trial court could not consider any statutory or affirmative defenses on defendants\u2019 Rule 12(b)(6) motion and was limited to ruling on whether plaintiff stated \u201ca claim upon which relief can be granted.\u201d Forbis, 301 N.C. at 701, 273 S.E.2d at 241; N.C.R. Civ. P. 12(b)(6). The trial court erred when it granted defendants\u2019 Rule 12(b)(6) motion to dismiss. I vote to reverse the trial court\u2019s order and remand for further proceedings. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "Bain, Buzzard, & McRae, LLP, by Edgar R. Bain and L. Stacy Weaver, III, for plaintiff-appellant.", "Christopher L. Carr for defendant-appellees." ], "corrections": "", "head_matter": "JAMES A. BURGIN, Plaintiff v. WILLARD RAY OWEN and wife ARIMELLA H. OWEN, Defendants\nNo. COA06-450\n(Filed 6 February 2007)\nHusband and Wife; Vendor and Purchaser\u2014 contract to sell entirety property \u2014 signature of husband \u2014 absence of written authorization by wife\nA written contract to sell realty owned by defendants as tenants by the entirety was unenforceable where the complaint shows that the contract was signed only by defendant husband, and there was no indication that defendant wife provided the husband with written authority to act on her behalf. N.C.G.S. \u00a7 39-13.6.\nJudge Tyson dissenting.\nAppeal by plaintiff from an order entered 9 January 2006 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 18 October 2006.\nBain, Buzzard, & McRae, LLP, by Edgar R. Bain and L. Stacy Weaver, III, for plaintiff-appellant.\nChristopher L. Carr for defendant-appellees." }, "file_name": "0511-01", "first_page_order": 543, "last_page_order": 550 }