*1 IN THE COURT OF APPEALS SERV., CITY OF CHARLOTTE (2004)]
[165 harmless, harmless). and, We that the error was not as a conclude result, prejudicial disputed the admission of the evidence constituted error trial. requiring a new
New trial. Judge
Chief MARTINand Judge BRYANTconcur. SERVICE, INC., Plaintiff-Appellant CHARLOTTE, EASTWAYWRECKER v. CITY OF Defendant-Appellee
No. COA03-399 (Filed August 2004) 1. Civil state a Procedure— failure claim — consideration complaint’s summary transformed exhibits — not into
judgment summary
A Rule motion was not transformed into a judgment consideration exhibits to the expressly incorporated by which were reference. Quantum government
2. Meruit— contract — court quantum
The trial did not err a meruit against claim for failure to a claim aris- Charlotte state ing provision from the trial towing Although services. by dismissing precluded ground erred by express the claim on the that it was plaintiff had
contract where contract (plaintiff’s ruling was invalid claims are taken as when on a true motion), appropriate Rule 12(b)(6) the dismissal was still sovereign immunity because bars meruit claims Any suggestion prior sovereign immunity the State. cases that arising bars from vires con- claims ultra tracts overruled. has been
3. Fraud— to state —failure negligent misrepresentation against A claim for towing Charlotte for failure dismissed where it was denied allege state did IN THE COURT OF APPEALS OF WRECKER INC. v. CITY CHARLOTTE EASTWAY *2 have learned the investigate or that it could not Moreover, by diligence. estab- facts reasonable by employ- any by plaintiff representations reliance lishes City unjustified. Manager was other than the ees dissenting. Judge McGee by January by Judge
Appeal plaintiff from order entered 6 County. Superior Court, Mecklenburg Diaz Heard Albert Appeals January 2004. Court of Odom, Firm, P.L.L.C., by and Odom T. LaFontine Sr.
The Odom, Jr., plaintiff-appellant. L. Thomas for City Attorney City Attorney's Office, by Senior Assistant White, defendant-appellee. Cynthia for GEER, Judge.
n appeals Eastway Service, (“Eastway”) from Plaintiff Wrecker Inc. of Charlotte an order claims defendant misrepresentation. quantum negligent We hold based on quantum meruit cause of action barred misrepresentation negligent while cause of action failed We, necessary for to include all the to state claim relief. therefore, affirm.
Factual Background agreement providing into with defendant Plaintiff entered tow, dispose vehicles, as plaintiff store, and motor would specified area police, geographical directed for a known annually $2,000.00 pay was to defendant for the Zone C. Plaintiff specifications and right agreed Zone C and to various to service documentation, hours, and facil- regarding storage service conditions rendered and the sale of ities, as well as a fee schedule services unclaimed motor vehicles. August 2002, complaint filed 28 2002 and amended in
In a March plaintiff agreement failing to alleged that breached the defendant pay provided agreement. In its plaintiff for services under complaint, added alternative claims for dam- amended supplied; (2) for ages in meruit for labor and materials with the defendant connection faith fair agreement; good breach of the covenant of IN THE OF COURT APPEALS v. CITY OF CHARLOTTE dealing. Defendant filed a motion to dismiss the alternative claims pursuant 12(b)(6). hearing, to Rule Following the trial court entered January an order on granting defendant’s dismiss as plaintiffs misrepresentation meruit and claims, denying but it as implied to the claim for breach good covenant of faith dealing. plaintiffs and fair As result, claims for breach of implied contract and breach of the good covenant of faith dealing and fair remain pending. appeals Plaintiff from the 6 January 2003 order.
Discussion *3 Because the trial granting court’s order defendant’s motion to dispose plaintiff’s dismiss did not of all defendant, claims against interlocutory. Corp. the order is DKH v. Rankin-Patterson Oil Co., 583, 584, 666, 348 N.C. court, 500 S.E.2d 667 (1998).The trial how- ever, included a plaintiff’s certification that the dismissal of claims for meruit and was a “final dispositive judgment[] and as to these claims is no and there reason delay to appeal.” multiple parties an In an multiple action with or claims, provides 54(b) “if the trial court enters a final judgment party just as to a or a claim certifies no there is reason delay, judgment immediately appealable.” for the Id. at 500 agree S.E.2d at with 668. We the trial court that the dismissal order properly and, therefore, was 54(b) certified under Rule address the plaintiff’s appeal. merits of
[1] To determine if a
complaint
is sufficient
to withstand a
Rule 12(b)(6)
dismiss,
motion to
the trial court must “ascertain
‘whether,
law,
complaint,
as a
matter
treated
true,
upon
as
are sufficient to state a claim
relief
which
”
granted
legal theory.’
Community
under some
Plummer v.
Gen.
Hosp.
Thomasville, Inc.,
155 N.C.
598
Shell
(quoting
Tomlinson,
Island Homeowners Ass’n v.
217, 225,
134
App.
N.C.
517
(1999)),
S.E.2d
disc. review
(2003).
matter,
357 N.C.
disposed of as pertinent to such present all material made sonable 56.” motion Rule record, carefully appears it that the doc- reviewing
After were trial court in pleadings than before the uments other plaintiff’s exhibits to to dismiss were the connection with motion expressly complaint complaint. to the were Since the exhibits the incorporated complaint, they were con- reference part plead- with the motion dismiss sidered connection Slavin, 52, 60-61, Capital, L.P. v. ings. See Oberlin subject agreement is loan (2001) (“Here, S.E.2d complaint. specifically referred to in the [plaintiffs] and is reviewing agreement Therefore, did not err loan the trial court motions.”). ruling the Rule when Quantum, Meruit [2] Plaintiff first contends trial court erred in recovery grounds meruit on the alternative claim for express recovery by the an precluded existence of that such was express While it is true that an con parties. between the Whitfield, quantum meruit, L. P.A. precludes recovery in Paul tract Gilchrist, express presence improper for the trial court assume *4 Rule North Rules 8(a)(2) in case. Carolina contract this Under forms of Procedure, is entitled seek alternative of Civil 1A-1, 8(a)(2) (2003) (“Relief alter relief. N.C. Gen. Stat. Rule § may Here, plain types demanded.”). be different native or several quantum in meruit does not claim for relief tiff’s alternative parties’ exists, contract is but rather that allege a contract performance. in its When invalid because of defects formation dismiss, trial must a motion to ruling on Rule true, support allegations, if taken as plaintiff’s whether the determine Duke, 277 N.C. granted. which Sutton a relief 1A-1, 161, Stat. 98-99, (1970); § S.E.2d 163 Gen. 94, 176 plaintiff’s claim are If in its alternative 12(b)(6) (2003). quantum accepted true, no meruit as contract exists precluded remedy per Accordingly, it was error for trial se. quantum recovery in plaintiff’s alternative court to dismiss precluded express contract ground that was meruit parties. between
IN THE COURT OF
APPEALS
INC. v. CITY OP CHARLOTTE
Nonetheless,
quantum
dismissal of the
meruit claim was still
appropriate
brought
because such a claim when
against an arm of the
immunity.
State is barred
sovereign
Carolina,
In North
the State
sovereign immunity
waives
expressly
when it
enters into a valid con-
State,
tract. Smith v.
303, 320,
289 N.C.
412,
S.E.2d
423-24(1976).
Sovereign immunity
quantum
bars
State,
meruit actions
however,
remedy
quantum
because the
is based on an
implied
implied
contract and an
support
contract cannot
the infer-
express
ence of an
Whitfield,
waiver.
42,
Supreme imply Court declined to a contract in law in derogation of sovereign immunity party to allow a theory to recover under a quantum meruit, and we decline to Corp. do so here.” Data Gen. County Durham, 143N.C. 545 S.E.2d 248 (2001). Coop. See also Moore v. N.C. Serv., Extension 146 N.C. (citation omitted) (“In Whitfield, Supreme Court held that the immunity only State’s waiver of sovereign applies express implied contracts and that law, contracts such aas claim meruit, are insufficient to constitute waiver of the State’s sovereign immunity.”), denied, disc. review 354 N.C.
S.E.2d 180 (2001). Rockingham County, Archer v. App. 550, 144 N.C. 792 (2001), disc. review upon by plaintiff, S.E.2d 796 relied did not address a claim quantum meruit, based on but rather a claim arising out of a valid employment It, therefore, contract. did not—indeed could not—over rule Whitfield. argues, however, Plaintiff bar Whitfield’s
only applies in cases
where
contract fails because it is ultra vires.
urges
Plaintiff
that if a
reason,
contract fails for some other
such as a
formation,
defect in
sovereign immunity
then
protect
does not
State from
Indeed,
meruit claims.
certain cases decided
*5
prior
support plaintiff’s
See,
argument.
e.g.,
Hawkins
Whitfield
Dallas,
Town
N.C.
(1948);
of
Rockingham Square Shopping Center,
Madison,
Inc. v. Town
(1980). Further,
Whitfield
itself involved a contract that was invalid because it was ulta vires.
Whitfield,
43-44,
atN.C.
EASTWAY not, however, sup- reasoning The and does language Whitfield validity Supreme The Court port continuing of such distinction. specifically held: imply first a contract in law where none exists will not
[W]e
implication
fact,
implication
support
that
the further
then use
intentionally
sovereign immunity and
that
has
waived its
the State
damages
consented to be sued for
for breach
the contract
Only
implicitly
in fact.
when the State has
waived
never entered
immunity by expressly entering into a
contract
sovereign
valid
expressly
authorized
law to enter
through
agent
the State
proceed
may plaintiff
against
with a
into such contract
upon
breach.
State
State’s
original).
both an
42-43,
(emphasis
Id. at
The Court has held that tort of “[t]he party justifiably to his resentation when a relies detriment occurs *6 IN THE COURT OF APPEALS 645 EASTWAY WRECKER v. CHARLOTTE CITY OF App. (2004)] N.C. 639 [165 prepared by information without reasonable care one who owed the relying party duty of care.” Raritan River Cherry, Steel Co. v. Holland, 200, Bekaert & 322 206, 609, N.C. 367 (1988). S.E.2d 612 properly Plaintiffs claim could pur- be dismissed the trial court suant to Rule if law support claim, no exists to if the complaint allege fails to claim, sufficient facts to assert a viable or if complaint alleges necessarily facts that will defeat the claim. Capital, App. Oberlin 147 61, N.C. at Here, S.E.2d at 847. the trial dismissed the claim for failure allege required to all the complaint facts and because the necessarily includes facts that defeat the claim. alleged
Plaintiff complaint duty that owed “[defendant Eastway care to provide Wrecker to accurate information Contract and Amendments and other actions and omissions set forth above.” “reasonably further that justifiably Plaintiff upon misrepresentations relied above to its detriment entering into the Contract tow, and Amendments dispose store and of ve- hicles for the July 5, Defendant from 1994 until October 2001 and by actually towing, storing and disposing of the vehicles.” appears
It
part
is at least
alleging that
City failed
legal import
to disclose the
prop
of the contract or to
erly
parties’
memorialize
agreement.
questionable
While it is
contention,
alone,
such a
standing
could form a
negli
basis for a
gent misrepresentation
claim, see International Harvester Credit
Corp. Bowman,
App. 217,
N.C.
(internal
omitted) (“[a] person
citations
who
executes written instrument
ordinarily charged
knowledge
contents,
with
of its
not
base an
ignorance
action for fraud on
legal
provisions”),
effect of its
c.
review
N.C.
Further, to the the based its cause action extent City and employees regarding of the the contract representations any amendments, plain- reliance complaint the establishes that the unjustified. original The contract states: tiff and, together with the Invitation to Bid Instructions This contract Sheet-Specifications Bidder, and the Bid Continuation to agreement the between the Special Conditions constitutes entire subject acceptance by City and its the and the Contractor on this vary City Manager City, of and no one is authorized same the proposed brought or are the substitution variations unless City Manager. the before contract,
(Emphasis added.)
of the amendments to the
extend-
Each
agreement, specifically provided that the
term of the
terms of
ing the
in
As a
original contract
remain
force and effect.”
result
the
“shall
rely upon
provisions, plaintiff was
entitled to
state-
of these
personnel,
Manager, regarding
than the
ments of
other
the contract
the
of the contract. Since
variation
terms
incorporated
complaint,
amendments were
reference
necessarily
complaint
plaintiff’s
defeat
claim. See
discloses facts that
Capital,
App.
(language
at
Judge HUNTERconcurs. separate opinion.
Judge McGEE in a dissents McGEE, Judge, dissenting. majority following respectfully opinion for the
I
dissent from
complaint is
to withstand a
To determine if a
sufficient
reasons.
1A-1,
pursuant
12(b)(6)
N.C. Gen.
Rule
§
to dismiss
Stat.
‘whether,
law,
trial court
“ascertain
as a matter
(2003), must
true,
complaint,
treated
are sufficient
state
APPEALS
IN THE COURT OF
v. CITY OF CHARLOTTE
WRECKER
EASTWAY
App.
(2004)1
”
theory.’
legal
under some
granted
which relief
Thomasville, Inc.,
Hosp.
155 N.C.
Community Gen.
Plummer v.
disc.
(citation omitted),
573 S.E.2d
considering
(2003).
“When
denied, 357 N.C.
579 S.E.2d
review
dismiss,
trial court need
look to
motion to
face
it reveals an insurmountable
to determine whether
University,
recovery.”
Fayetteville State
plaintiffs
Locus v.
bar to
522, 527,
(1991).
402 S.E.2d
1A-1,
pursuant
purpose
§
of a motion
to N.C.G.S.
The sole
sufficiency
pleading against
legal
test the
12(b)(6) is “to
Dingfelder, 71 N.C.
is directed.” Azzolino v.
which [the motion]
part
(1984),
rev’d.
aff’d.
cert.
479 U.S.
part, 315 N.C.
N.C.G.S. Court, in its order dis- this the trial court stated In the case before 12(b)(6), that it “considered the plaintiffs claims under Rule missing Dismiss, to Reconsider And/Or the Motion pleadings, the Motion parties Certify, arguments of the Request to Amend, Plaintiffs solely plain- at Defendant’s motion was directed applicable law.” pleadings is to consider other complaint and for the trial court tiff’s court’s Based on the trial contrary 12(b)(6). function of Rule to the matters in addition to the trial court considered order, I conclude the dismiss was complaint and defendant’s motion to 1A-1, summary thereby judgment. § N.C.G.S. into one for converted 12(b). Rule of the motion from provided, upon conversion
Plaintiff was not summary motion, a “reasonable judgment motion to a a mo- pertinent to such present all material made opportunity to plaintiff 1A-1, 12(b). Because N.C.G.S. § tion Rule 56.” summary oppose the opportunity afforded a reasonable was not Locus, the case to the trial motion, I would remand judgment IN THE COURT OF APPEALS
STATE v. DYSON
permitted
present
court in order that
evidence in
summary
opposition
judgment. Locus,
to the motion for
102N.C.
at
STATE NORTH CAROLINA v. JOSEPH II OF ALOYSIUS DYSON,
No. COA03-1046 (Filed August 2004) testimony protective 1. Evidence— services worker— —child sexual assault — corroboration plain The trial court did not commit error in a first-degree testimony protective admitting sexual offense case of a child regarding services worker statements made to her the child testimony beyond victim, because: while the witness’s went single testified, act of oral sex to which the child victim testimony depart testimony witness’s did not from the child’s oral sex occurred between defendant and the victim thus corrob- testimony orating although variation; there was some jury probably defendant is unable to show error such that the would have reached different result absent the error. hearsay opinion testimony plain 2. Evidence— error — — analysis *9 plain The trial court did not commit error in a first-degree hearsay opinion testimony admitting sexual offense case qualified expert, (1) of a witness who had not been as an because: objection, when admitted without otherwise inadmissible hearsay may given be considered with all the other evidence and evidentiary may possess; pertinent such value (2) as it testi- mony vague opinion testimony; was too to amount to nei- pertinent prejudiced ther of the witness’s statements would have jury and tilted the scales favor of conviction. first-degree 3. Sexual Offenses— sexual offense —failure instruct on indecent liberties with a minor first-degree
The trial court did not err in a sexual offense case jury failing minor, to instruct the as to indecent liberties with a because: indecent liberties with a minor is not a lesser-