Braun v. Glade Valley School, Inc.
334 S.E.2d 404
N.C. Ct. App.
1985
Check Treatment
EAGLES, Judge.

I

Plaintiff first assigns as error that the trial court committed reversible error by dismissing plaintiffs second and third causes of action. We disagree.

A motion to dismiss under Rule 12(b)(6) is the usual and customary method of testing the legal sufficiency of the complaint. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979). The facts pleaded in the complaint are the determining factors in deciding whether the complaint states a claim upon which relief can be granted. W. Shuford, North Carolina Civil Practice and Procedure Section 12-10 (1981). The legal theory set forth in the complaint does not determine the validity of the claim. Benton v. W. H. Weaver Construction Co., 28 N.C. App. 91, 220 S.E. 2d 417 (1975). A claim should not be dismissed pursuant to Rule 12(b)(6) unless it appears that the plaintiff is not entitled to any relief under any statement of facts which could be proved. Presnell v. Pell, 298 N.C. 715, 260 S.E. 2d 611 (1979). While mere vagueness is not enough to dismiss the complaint, the complaint must state enough to satisfy the requirements of the substantive law giving rise to the claim. Merely asserting a grievance is not enough. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970).

Plaintiff contends that the defendants’ conduct was tortious in two ways: one, by the deception of plaintiff and two, by the withdrawal of a highly complimentary recommendation in reprisal after plaintiff sought legal assistance. In his brief, plaintiff argues that the defendants’ actions were deceitful and fraudulent. From a review of the facts as alleged in the complaint, we do not believe that the complaint alleges circumstances constituting fraud and deceit.

In order to prove actionable fraud the plaintiff must show: (1) that the defendant made a representation of a material past or present fact; (2) that the representation was false; (3) that it was made by the defendant with knowledge that it was false or made recklessly without regard to its truth; (4) that the defendant intended that the plaintiff rely on the representation; (5) that the plaintiff did reasonably rely on it; and (6) injury. Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). As a general rule, a mere promissory representation will not support an action for fraud. Id.; Pierce v. American Fidelity Fire Ins. Co., Inc., 240 N.C. 567, 83 S.E. 2d 493 (1954); McCormick v. Jackson, 209 N.C. 359, 183 S.E. 369 (1936). However, a promissory misrepresentation may constitute actual fraud if the misrepresentation is made with intent to deceive and with no intent to comply with the stated promise or representation. Johnson v. Phoenix Mutual Life Ins. Co., supra; Vincent v. Corbett, 244 N.C. 469, 94 S.E. 2d 329 (1956).

One of the essential elements of actual fraud is that the defendant made some representation relating to a material existing or past fact. Cofield v. Griffin, 238 N.C. 377, 78 S.E. 2d 131 (1953). In plaintiffs second cause of action, plaintiff alleges in his complaint that the representation made by the defendants was that the plaintiff would be hired for the upcoming school year. This representation related to a future fulfillment and not a past or existing fact. The rule is that fraud cannot be based on an allegation of a promise of future intent. Craig v. Texaco, Inc., 218 F. Supp. 789 (E.D. N.C. 1963), aff'd, 326 F. 2d 971 (4th Cir. 1964). Further, the plaintiff made no allegations as to the defendant’s intent to deceive the plaintiff. There are no allegations in the complaint that the defendants knew the representation was false or made the representation recklessly and without regard for its truth.

As to plaintiff’s third cause of action, plaintiff complains that the defendants withdrew a highly favorable recommendation after receiving notice that the plaintiff was seeking legal assistance. Plaintiff alleges in his complaint that this conduct was in retribution for the plaintiff seeking legal advice and that it “was done with a vengeful motive toward Plaintiff for the specific purpose of injuring and damaging him.” From these allegations there is no evidence of fraud or deceit. There is no allegation of a misrepresentation of any fact, past or present; there is no allegation of reliance by the plaintiff; and there is no evidence of any fraudulent inducement by the defendants. While the withdrawal of the recommendation may have hurt the plaintiff, he has made no allegations that the defendants were under any duty, by contract or otherwise, to make the recommendation and there are no facts alleged to support plaintiffs allegation that the withdrawal of the recommendation was wrongful. It is not sufficient to conclusively allege that the defendants’ conduct was wrongful. We do not believe that the plaintiff has stated any cause of action sufficient under the substantive law of this state upon which relief from defendants’ action could be granted.

For these reasons, plaintiffs first assignment of error is overruled.

II

Plaintiff secondly urges that the trial court committed reversible error by sustaining defendants’ objection to plaintiffs proffered evidence that GVS still employs teachers who do not have multiple certification. We disagree.

While the plaintiff was testifying on direct examination about the school’s new policy requiring faculty members to have multiple certification, his attorney asked the following question:

Are there still teachers there [at GVS] who do not meet that criteria, that is, the multiple certification?

Defendants’ attorney objected to this question and the objection was sustained.

The trial of this matter was held on plaintiffs first cause of action, breach of contract. We fail to see the relevancy of this question to the issue of whether or not the letter of 5 April 1983 constituted a valid contract between GVS and the plaintiff. Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue. Brandis, Brandis on North Carolina Evidence Section 77 (rev. 2d ed. 1982). Evidence which is not relevant is not admissible. N.C. Rules of Evidence 402. At trial, the plain tiffs burden was to prove the existence of a valid contract binding on GVS and the breach of that contract. No answer to the question was given for the record. We fail to see how any answer, affirmative or negative, would have had any relevance to the issues of the existence of a contract and breach of the contract.

The trial court properly sustained defense counsel’s objection to the question and plaintiffs second assignment of error is overruled.

III

In his remaining assignment of error plaintiff contends that the trial court committed reversible error by granting defendants’ motion for a directed verdict and dismissing plaintiffs first cause of action at the close of plaintiffs evidence. We disagree.

The question for decision is whether the letter of 5 April 1983 constitutes a contract or offer to contract sufficient to support an action for damages for breach of its terms. The letter is not a complete contract within itself. This is obvious from the plaintiffs evidence and the defendants’ exhibits. Plaintiff was employed by GVS for six years. For each of those previous six years plaintiff entered into a written contract with GVS, signed by the plaintiff and the defendant Mackey. Each contract specified with particularity the terms of plaintiffs employment such as salary, fringe benefits, length of employment — beginning date and ending date, payment periods, duties and responsibilities, and housing. Taking plaintiffs evidence as true and in the light most favorable to him, the plaintiff has shown that he received an unsolicited letter from defendant Mackey which stated that Mackey was “planning” for the plaintiff to be a part of the faculty during the next school year. At best, the letter constituted a future promise to enter into a contract in the future. In order to be binding, an offer to enter into a contract in the future must specify all the essential terms and leave nothing to be agreed upon as a result of future negotiations. To constitute a valid contract, the parties must assent to the same thing, their minds must meet as to all essential terms. Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E. 2d 584 (1980).

From plaintiffs evidence, it is clear that the plaintiff and defendant Mackey never reached a mutual understanding as to sal ary, fringe benefits, length of employment, duties and responsibilities, or housing arrangements. There was no meeting of the minds. Further, the letter does not constitute a present offer of employment for the following year. The writer was merely stating his plan or desire. He had reached no definite decision. When an offer and an acceptance are relied upon to make out a contract, the offer must be one that is intended to create a legal relationship upon acceptance. It cannot be an offer to open negotiations that eventually may result in a contract. Yeager v. Dobbins, 252 N.C. 824, 114 S.E. 2d 820 (1960).

Plaintiffs evidence failed to prove the existence of a valid contract and the trial court properly directed a verdict in favor of the defendants.

Affirmed.

Judges Johnson and Parker concur.