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  "name": "HAROLD LANE PARKER, Plaintiff v. DOUGLAS GLOSSON, Defendant",
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      "Judge STEPHENS concurs.",
      "Judge TYSON dissents by separate opinion."
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    "parties": [
      "HAROLD LANE PARKER, Plaintiff v. DOUGLAS GLOSSON, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nThis is a breach of contract action concerning a standard form Agreement for Purchase and Sale of Real Property (Agreement) that is signed by only one of two named sellers. The dispositive question before this Court is whether there is a valid contract between the buyer and the signing seller. Because the Agreement expressly provides that it \u201cshall become an enforceable contract, when a fully executed copy has been communicated to both parties,\u201d but one party has not signed the Agreement, we conclude that there is no valid contract.\nI. Background\nPlaintiff Harold Parker filed a civil complaint against defendant Douglas Glosson in Superior Court, Davidson County on 4 January 2006. In the complaint, plaintiff alleged that defendant breached a contract to sell thirty-six acres of real property, including a truck shop, warehouse, and offices, located in Lexington, N.C. Plaintiff further alleged that he \u201cmade demand for [c]losing on the [property and offered to tender the closing price,\u201d but that defendant ignored his requests. In his prayer for relief, plaintiff sought specific performance and, alternatively, damages.\nPlaintiff attached a copy of the Agreement to his complaint, labeling the document \u201cExhibit A.\u201d Clause thirteen of the Agreement provides: \u201cThis Agreement shall become an enforceable contract when a fully executed copy has been communicated to both parties.\u201d (Emphasis added.) Although the Agreement names Douglas Glosson and Sandy Glosson as the sellers of the disputed property, only Douglas Glosson has signed the document. Plaintiffs complaint alleged that Douglas Glosson is \u201cthe owner\u201d of the property and the remaining allegations contained therein do not mention Sandy Glosson.\nOn 3 February 2006, defendant filed a motion to dismiss plaintiffs complaint for failure to state a claim upon which relief can be granted pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6). Judge Larry G. Ford heard defendant\u2019s motion on 20 February 2006, at which time defendant argued that no valid contract existed between the parties because the Agreement, on its face, shows that the parties did not intend to be bound by a contractual relationship until both sellers and the buyer signed the document. Plaintiff responded that the Agreement satisfies the statute of frauds and that there are many outstanding questions of fact concerning Sandy Glosson and her interest in the property that make dismissal improper.\nOn 21 February 2006, Judge Ford entered an order dismissing plaintiff\u2019s complaint. In his order, Judge Ford concluded that \u201cthe complaint fails to state a claim upon which the relief prayed in the complaint can be granted because there is no valid contract.\u201d Plaintiff appealed.\nII. Standard of Review\nThis Court reviews dismissal of a complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1,' Rule 12(b)(6), de novo. Acosta v. Byrum, 180 N.C. App. 562, 638 S.E.2d 246 (2006). \u201cThe word \u2018de novo\u2019 means fresh or anew; for a second time,\u201d In re Reassignment of Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964), and an \u201cappeal de novo\u201d is an \u201cappeal in which the appellate court uses the trial court\u2019s record but reviews the evidence and law without deference to the trial court\u2019s rulings,\u201d Black\u2019s Law Dictionary 94 (7th ed. 1999). Thus, we consider the parties\u2019 pleadings, together with the transcript of the parties\u2019 argument below, to determine whether defendant met the applicable burden of.proof.\nTo prevail on a Rule 12(b)(6) motion to dismiss, the defendant must show that \u201cas 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.\u201d Harris v. NCNB Nat\u2019l Bank, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). The^ complaint must \u201callege[] the substantive elements of a legally recognized claim\u201d and must \u201cgive sufficient notice of the events which produced the claim to enable the adverse party to prepare for trial.\u201d People\u2019s Sec. Life Ins. Co. v. Hooks, 322 N.C. 216, 218, 367 S.E.2d 647, 648-49 (1988). If a complaint \u201cdisclos[es] ... [a] fact which will necessarily defeat\u201d the plaintiff\u2019s claim, then it will be dismissed. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1980). \u201cDocuments attached as exhibits to the complaint and incorporated therein by reference are properly considered when ruling on a 12(b)(6) motion.\u201d Woolard v. Davenport, 166 N.C. App. 129, 133-34, 601 S.E.2d 319, 322 (2004).\nIII. Contract Formation\n\u201cThe elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.\u201d Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). No contract is formed without an agreement to which at least two parties manifest an intent to be bound. Croom v. Goldsboro Lumber Co., Inc., 182 N.C. 217, 220, 108 S.E. 735, 737 (1921) (mutual assent is an \u201cessential element\u201d of every contract); see also Kirby v. Stokes Cty. Bd. of Educ., 230 N.C. 619, 626, 55 S.E.2d 322, 327 (1949) (\u201cA contract is an agreement between two or more persons or parties [based] on sufficient consideration to do or refrain from doing a particular act.\u201d). In law, this agreement is commonly called mutual assent and is customarily described as a \u201cmeeting of the minds.\u201d See Charles Holmes Mach. Co. v. Chalkley, 143 N.C. 181, 183, 55 S.E. 524, 525 (1906) (\u201cThe first and most essential element of an agreement is the consent of the parties, an aggregatio mentium, or meeting of two minds in one and the same intention, and until the moment arrives when the minds of the parties are thus drawn together, the contract is not complete, so as to be legally enforceable.\u201d).\nThere is no meeting of the minds, and, therefore, no contract, when \u201cin the contemplation of both parties . . . something remains to be done to establish contract relations.\u201d Fed. Reserve Bank v. Neuse Mfg. Co. Inc., 213 N.C. 489, 493, 196 S.E. 848, 850 (1938). This rule has been described as \u201ctoo well established to require the citation of authority.\u201d Id. Thus, if negotiating parties impose a condition precedent on the effectiveness of their agreement, no contract is formed until the condition is met. Likewise, when negotiating parties make it clear that they do not intend to be bound by a contract until a formal written agreement is executed, no contract exists until that time. Hilliard v. Thompson, 81 N.C. App. 404, 409, 344 S.E.2d 589, 592 (1986) (Whichard, J., concurring and stating the majority holding) (concluding because \u201c[t]he uncontroverted forecast of evidence . . . establishes that defendant manifested an intent that the alleged agreement was not to be binding unless his wife became a party by agreeing to it, and that his wife refused to sign and become a party.... I would hold that the plaintiffs cannot enforce the alleged agreement\u201d); see also Burgin v. Owen, 181 N.C. App. 511, \u2014 S.E.2d \u2014 (filed Feb. 6, 2007) (affirming the trial court order which granted the defendant\u2019s Rule 12(b)(6) motion to dismiss plaintiffs complaint alleging breach of contract and specific performance because (1) N.C. Gen. Stat. \u00a7 39-13.6(a) (2005) provides that a husband may not convey real property held as tenancy by the entirety without his wife\u2019s signature, and (2) the defendant\u2019s wife did not sign the Offer to Purchase and Contract).\nHere, clause 13 of the Agreement for Purchase and Sale of Real Property [the Agreement] expressly provides \u201c[t]his [agreement shall become an enforceable contract when a fully executed copy has been communicated to both parties.\u201d (Emphasis added.) From this language, we conclude that the sellers did not intend to sell, and the buyer did not intend to buy, until the Agreement was signed by all parties. The parties identified as \u201cSeller[s]\u201d at the top of the first page of the Agreement are Douglas Glosson and Sandy Glosson; however, only Douglas Glosson has signed on the \u201cSeller\u201d signature lines at the end of the Agreement. Because Sandy Glosson has not signed the Agreement, the Agreement is not \u201cfully executed\u201d and, therefore, no contract has been formed between the parties as a matter of law.\nThe reason for holding the instrument void is that it was intended that all the parties should execute it and that each executes it on the implied condition that it is to be executed by the others, and, therefore, that until executed bv all it is inchoate and incomplete and never takes effect as a valid contract, and this is especially true where the agreement expressly provides or its manifest intent, is. that it is not to be binding until signed.\nHilliard, 81 N.C. App. at 409, 344 S.E.2d at 591 (Whichard, J. concurring) (internal quotation omitted) (emphasis added).\nIn reaching this result, we take the word \u201cexecute\u201d to mean \u201csign,\u201d which is a familiar usage of this term at law and which is the apparent meaning of the term in context. See Black\u2019s Law Dictionary 589 (7th ed. 1999) (defining \u201cexecute\u201d as a verb which means \u201c[t]o make [a legal document] valid by signing\u201d); Harris v. Latta, 298 N.C. 555, 558, 259 S.E.2d 239, 241 (1979) (\u201cIn construing contracts ordinary words are given their ordinary meaning unless it is apparent that the words were used in a special sense.\u201d). For example, in Hilliard v. Thompson, this Court repeatedly used the term \u201cexecute\u201d to refer to the \u201csigning\u201d of a real estate contract. 81 N.C. App. at 408-09, 344 S.E.2d at 591-92.\nAlthough we agree with plaintiff that a contract to sell or convey an interest in real property is enforceable if the essential terms of the parties\u2019 agreement are evidenced in writing and that writing is \u201csigned by the party to be charged,\u201d see N.C. Gen. Stat. \u00a7 22-2 (2005) (contracts concerning interests in real property must be in writing); Durham Consol. Land & Improvement Co. v. Guthrie, 116 N.C. 381, 384, 21 S.E. 952, 953 (1895) (explaining \u201cthat if A contracts in writing to sell a tract of land to B, whose promise to pay is not in writing, A would be bound to perform, but B would not, if he s\u00e1w proper to avail himself of the statute [of frauds]\u201d), the issue subjudice is one of contract formation, not contract enforceability. Although plaintiff asserts that there are outstanding questions of fact concerning Sandy Glosson\u2019s identity and interest in the disputed property, plaintiff can \u201cprove no set of facts in support of his claim which would entitle him to relief.\u201d Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987). The complaint \u201cdisclos[es] ... [a] fact which will necessarily defeat\u201d plaintiffs claim for breach of contract. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981). The dispositive fact is that Sandy Glosson has not executed the Agreement.\nIV. Conclusion\nFor the reasons stated above, we affirm the trial court order granting defendant\u2019s motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6).\nAFFIRMED.\nJudge STEPHENS concurs.\nJudge TYSON dissents by separate opinion.\n. Although Judge Whichard\u2019s opinion in Hilliard is titled as a \u201cconcurring opinion,\u201d Judge Johnson joined in Judge Whichard\u2019s concurrence. 81 N.C. App. at 404, 344 S.E.2d at 589. Therefore, the majority holding is actually contained in Judge Whichard\u2019s \u201cconcurrence.\u201d See, e.g., Maraman v. Cooper Steel Fabricators, 355 N.C. 482, 483, 562 S.E.2d 420, 421 (2002) (affirming the Court of Appeals\u2019 opinion in part and reversing the Court of Appeals\u2019 opinion in part because \u201ca portion of the majority opinion was erroneously designated a dissent, while a portion of the dissent was found in what purported to be the majority opinion\u201d); Jones v. Asheville Radiological Group, P.A., 350 N.C. 654, 655, 517 S.E.2d 380, 380 (1999) (remanding for modification of the Court of Appeals\u2019 opinion because \u201cthe majority holding is found within an opinion authored by Judge Green titled \u2018concurrence and dissent\u201d); Knight Pub. Co., Inc. v. Chase Manhattan Bank, N.A., 351 N.C. 98, 98, 530 S.E.2d 54, 54 (1999) (remanding for modification of the Court of Appeals\u2019 opinion because the \u201cmajority holding ... is found in Judge Walker\u2019s concurring in part and dissenting in part opinion\u201d).\n. No party is identified as the Buyer. An illegible signature, alleged to be the signature of Harold Parker, is written on the \u201cBuyer\u201d signature line at the end of the document.",
        "type": "majority",
        "author": "STROUD, Judge."
      },
      {
        "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion concludes no contract was formed between Harold Lane Parker (\u201cplaintiff\u201d) and Douglas Glosson (\u201cdefendant\u201d) because Sandy Glosson (\u201cSandy\u201d) did not execute the agreement. The majority\u2019s opinion erroneously affirms the trial court\u2019s order granting defendant\u2019s Rule 12(b)(6) motion to dismiss plaintiff\u2019s breach of contract claim. I vote to reverse the trial court\u2019s order. I respectfully dissent.\nI. Background\nOn 16 March 2005, plaintiff and defendant entered into a written agreement for the purchase and sale of real property located in Lexington, North Carolina. Plaintiff and defendant signed a standard form \u201cAgreement for Purchase and Sale of Real Property,\u201d approved by the North Carolina Association of Realtors. Undisputed evidence shows the agreement: (1) did not include plaintiff\u2019s name in the blank space as \u201cBuyer\u201d on its first page; (2) listed defendant and Sandy as \u201cSeller;\u201d (3) included a description of the property; (4) provided the purchase price; (5) was signed by plaintiff as \u201cBuyer\u201d and defendant as \u201cSeller ;\u201d and (6) was not signed by Sandy.\nOn 4 January 2006, plaintiff filed a complaint against defendant alleging breach of the agreement to sell and convey the real property. The agreement between the parties was attached to and incorporated by reference into the complaint. Plaintiff sought specific performance of the agreement or, in the alternative, damages for defendant\u2019s breach of contract. Defendant did not answer plaintiff\u2019s complaint. On 3 February 2006, defendant moved to dismiss the complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) \u201con the ground that the complaint on its face failfed] to show a claim upon which relief c[ould] be granted.\u201d\nOn 20 February 2006, a hearing was conducted on defendant\u2019s motion to dismiss. Defendant asserted the lack of an enforceable contract with plaintiff and argued the complaint must be dismissed because: (1) the \u201cBuyer\u201d line on the first page of the agreement was left blank and (2) Sandy did not execute or sign the agreement. The trial court concluded \u201cthere [was] no valid contract\u201d on 21 February 2006 and granted defendant\u2019s motion to dismiss. Plaintiff appeals.\nII.Issue\nPlaintiff argues the trial court erred by concluding \u201cthere [was] no valid contract\u201d and granting defendant\u2019s motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6).\nIII. 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 plaintiff s\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, \u201cA 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.\u201d Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) (internal citations omitted).\nIV. Motion to Dismiss\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) (citation omitted). Plaintiff\u2019s complaint alleged \u201c[plaintiff] and [defendant] entered into a written agreement (\u201cContract\u201d) for the purchase and' sale of the Property.\u201d Plaintiff also alleged defendant stated he \u201cwas going to \u2018back out\u2019 of the Contract and would not sell the Property to [plaintiff]\u201d and that plaintiff had tendered performance to close the transaction. Plaintiff alleged a valid breach of contract claim. Id.\nA. Statute of Frauds\nPlaintiff argues the trial court improperly relied upon the statute of frauds in reaching its decision. The majority\u2019s opinion wholly fails to address this argument. The trial court committed reversible error by relying on the statute of frauds upon defendant\u2019s motion to dismiss.\nAt the hearing, defendant asserted no valid contract existed between the parties and argued the complaint must be dismissed because: (1) the \u201cBuyer\u201d line on the first page of the agreement was left blank and (2) Sandy did not execute or sign the agreement. During the hearing, plaintiff\u2019s counsel asked to provide the trial court a case analyzing the statute of frauds. Although the trial court responded the statute of frauds was \u201cnot the whole reason I made the decision\u201d to grant defendant\u2019s motion to dismiss, the transcript shows the trial court granted defendant\u2019s motion based in part upon a violation of the statute of frauds. N.C. Gen. Stat. \u00a7 22-2 (2005). The trial court stated:\n[The statute of frauds is] not the whole reason I made the decision. A lot of other reasons I made the decision what [defendant\u2019s counsel] said there. It wasn\u2019t just that. That\u2019s not the whole reason. That technicality \u2014 -we are dealing with lots of technicalities here, but I think I\u2019m going to grant the 12(b)(6) motion and I think I\u2019m correct. Maybe I\u2019m not, that\u2019s why the roads are paved between here and Raleigh.\nThis Court addressed similar facts in Brooks Distributing Co. v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300, rev\u2019d per curiam, 324 N.C. 326, 378 S.E.2d 31 (1989). In Brooks, the trial court dismissed a complaint that alleged breach of contract. 91 N.C. App. at 717, 373 S.E.2d at 302. The trial court dismissed on the ground that the statute of frauds required all the essential elements of a covenant not to compete to be in writing. Id. This Court affirmed the trial court\u2019s decision in part and reversed in part on other matters, with Judge Cozort dissenting in part. Id. at 722, 373 S.E.2d at 305.\nOur Supreme Court reversed and adopted the rationale of Judge Cozort\u2019s dissenting opinion which stated 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 \u2022 statute of frauds bars enforcement of a contract is an affirmative defense that can only be raised by answer or reply.\nId. at 723-24, 373 S.E.2d at 305 (internal citation and quotation omitted) (emphasis supplied).\nThe statute of frauds is an affirmative defense that \u201ccan only b\u00e9 raised by answer or reply\u201d and cannot sustain any legal basis to grant defendant\u2019s Rule 12(b)(6) motion to dismiss. Id.) N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (2005). Defendant failed to raise the statute of frauds by answer or reply. This defense was not properly before the trial court upon defendant\u2019s Rule 12(b)(6) motion to dismiss. Id. The trial court erred by considering defendant\u2019s statute of frauds defense in ruling, in part, on defendant\u2019s Rule 12(b)(6) motion to dismiss. I vote to reverse the trial court\u2019s order granting defendant\u2019s motion to dismiss on this basis alone.\nB. Contract Formation\nAlternatively, the majority\u2019s opinion holds plaintiff\u2019s complaint discloses a dispositive fact that will defeat his claim for breach of contract. The majority\u2019s opinion states Sandy\u2019s failure to execute the agreement is dispositive in determining whether a contract existed between plaintiff and defendant. I disagree.\nIn reaching their conclusion, the majority\u2019s opinion relies on section thirteen of the agreement which states, \u201cThis Agreement shall become an enforceable contract when a fully executed copy has been communicated to both parties.\u201d Here, the agreement was executed by plaintiff as \u201cBuyer\u201d and defendant as \u201cSeller\u201d. Both parties, the buyer and seller, executed the agreement. Sandy\u2019s failure to execute the agreement is not dispositive in determining whether a contract existed between plaintiff and defendant.\nAs noted above, a contract for the sale of real property must satisfy the statute of frauds. N.C. Gen. Stat. \u00a7 22-2. The statute 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).\nLong standing precedents hold that only \u201cthe party to be charged\u201d is required to sign the agreement in order for the contract to be enforceable against him. Id. 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, 20, 97 S.E. 750, 751 (1919).\nAn agent of the party \u201cto be charged\u201d may also sign the contract for the sale of land, and the contract will be enforceable against the principal whether present or not. Blacknall v. Parish, 59 N.C. 70, 72-73 (1860); see also N.C. Gen. Stat. \u00a7 22-2 (\u201cor by some other person by him thereto lawfully authorized\u201d). Parol evidence may be used to prove the agent\u2019s authority to sign. Wellman v. Horn, 157 N.C. 170, 172-73, 72 S.E. 1010, 1011 (1911); see also Lewis v. Allred, 249 N.C. 486, 489, 106 S.E.2d 689, 692 (1959) (\u201c[Authority of an agent to sell the lands of another may be shown aliunde or by parol.\u201d).\nHere, Sandy\u2019s failure to execute the agreement does not render the agreement per se unenforceable and cannot sustain the trial court\u2019s grant of defendant\u2019s motion to dismiss. Sandy is not a party to this action. \u201cSandy\u2019s\u201d status and the nature of his or her interest, if any, is not disclosed in the complaint, in the agreement, or in the record on appeal.\nDefendant is the \u201cSeller\u201d in this transaction and his signature, as \u201cSeller,\u201d appears at the end of the agreement. Only \u201cthe party to be charged\u201d is required to sign the agreement for it to be enforceable. N.C. Gen. Stat. \u00a7 22-2. \u201c[T]he party to be charged is the one against whom relief is sought.\u201d Lewis, 177 N.C. at 20, 97 S.E. at 751. Defendant does not'dispute he signed the agreement as \u201cSeller\u201d in this transaction. Defendant is \u201cthe party to be charged.\u201d Id. Plaintiff is seeking relief only from the named defendant. N.C. Gen. Stat. \u00a7 22-2; Lewis, 177 N.C. at 20, 97 S.E. at 751. The fact that Sandy did not execute or sign the agreement does not render the agreement per se unenforceable against defendant.\nAlso, no evidence in the record reveals Sandy\u2019s identity, status, or interest in the property. Defendant may have signed the agreement as an agent for Sandy. If so, this fact may be proven by parol evidence. Wellman, 157 N.C. at 172-73, 72 S.E. at 1011. There was no requirement that plaintiff must also allege the contract was executed by Sandy through an agent. See Reichler v. Tillman, 21 N.C. App. 38, 41, 203 S.E.2d 68, 71 (1974) (\u201cThere was no necessity that plaintiffs allege that the contract was executed by the feme defendant through an agent.\u201d).\n\u201cA 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,\u201d Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758. Plaintiff should be provided the opportunity to prove defendant also signed as agent for Sandy.\nEven if defendant was not Sandy\u2019s agent, plaintiff may enforce the contract against defendant to the extent of defendant\u2019s interest in the property. See James A. Webster, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 7-6, at 195 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 5th ed. 1999) (\u201cEach tenant in common may convey, lease, or mortgage his interest in the common property[.]\u201d).\nDefendant seeks to excuse his own non-performance and breach by purporting to assert the third party rights, if any, of \u201cSandy\u201d, who is not identified nor joined as a party in plaintiff\u2019s complaint. See Holmes v. Godwin, 69 N.C. 467, 470 (1873) (\u201cIn general, jus tertii [the rights of a third party] cannot be set up as a defense by the defendant, unless he can in some way connect himself with the third party.\u201d).\nThe majority\u2019s opinion erroneously holds Sandy\u2019s failure to execute the agreement, when Sandy is not a party to this action, is dis-positive in dismissing plaintiff\u2019s complaint against defendant. The trial court\u2019s order granting defendant\u2019s 12(b)(6) motion to dismiss should be reversed.\nV. Conclusion\nPlaintiff properly alleged a claim for breach of contract by defendant in the complaint. Defendant\u2019s statute of frauds defense and no other affirmative or statutory defenses were properly before the trial court upon his Rule 12(b)(6) motion to dismiss. Brooks Distributing Co., 91 N.C. App. at 723-24, 373 S.E.2d at 305.\nAlternatively, I disagree with the majority\u2019s conclusion that Sandy\u2019s purported failure to execute the agreement is dispositive in dismissing plaintiff\u2019s allegations that a contract exists and that defendant breached by failing to perform. Only defendant as \u201cthe party to be charged\u201d was required to execute or sign the agreement under the statute of frauds. N.C. Gen. Stat. \u00a7 22-2; Lewis, 177 N.C. at 20, 97 S.E. at 751. No evidence in the record reveals Sandy\u2019s identity or interest in the property. Plaintiff alleged defendant signed the agreement as seller. Plaintiff is entitled to performance or damages to the extent of defendant\u2019s interest in the property.\nThe trial court erred by granting defendant\u2019s Rule 12(b)(6) motion to dismiss. I vote to reverse and respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "Eric C. Morgan, P.A., by Eric C. Morgan, andL. G. Gordon, Jr., P.A., by L.G. Gordon, Jr. for plaintiff-appellant.",
      "Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker and Christopher Alan Raines, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "HAROLD LANE PARKER, Plaintiff v. DOUGLAS GLOSSON, Defendant\nNo. COA06-740\n(Filed 20 March 2007)\nVendor and Purchaser\u2014 standard form agreement for purchase and sale of real property \u2014 signed by one of two named sellers \u2014 invalidity\nA standard form agreement for the purchase and sale of real property was not a valid contract where it was signed by only one of the two named sellers, and language in the agreement providing that it \u201cshall become an enforceable contract when a fully executed copy has been communicated to both parties\u201d demonstrates that the parties did not intend to have a valid contract until it was signed by all parties.\nJudge Tyson dissenting.\nAppeal by plaintiff from order entered 20 February 2006 by Judge Larry G. Ford in Superior Court, Davidson County. Heard in the Court of Appeals 24 January 2007.\nEric C. Morgan, P.A., by Eric C. Morgan, andL. G. Gordon, Jr., P.A., by L.G. Gordon, Jr. for plaintiff-appellant.\nBiesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker and Christopher Alan Raines, for defendant-appellee."
  },
  "file_name": "0229-01",
  "first_page_order": 261,
  "last_page_order": 273
}
