A North Carolina state appeals court has reversed a lower court, finding that a college coach properly pled a claim for breach of contract, and that a judge should not have dismissed the complaint.
Eric Tucker was the head women’s basketball coach at Fayetteville State University for 16 years. On April 20, 2009, Tucker was allegedly told that he must resign and retire or be terminated. Administrators made the request because the plaintiff cursed during basketball practices and games. Shortly thereafter, Tucker retired.
On Dec. 23, 2009, the coach sued Fayetteville State University, and its chancellor, James A. Anderson, seeking monetary damages for breach of contract.
The defendants countered with a motion to dismiss, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), (2), and (6). The trial court granted defendants’ motion and dismissed the case with prejudice pursuant to Rule 12(b)(6) on April 22, 2010.
Tucker appealed.
The court noted that “the dismissal of a case on the basis of Rule 12(b)(6) is subject to de novo review on appeal. Citing. Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009). For the Rule 12(b)(6) ruling, we review ‘whether, as 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.’ Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citing Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)).”
The trial court’s order states “that the plaintiff’s complaint fails to state a claim upon which relief can be granted. This tracks the language of N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2009). It is thus clear that the trial court dismissed plaintiff’s action pursuant to Rule 12(b)(6).”
The appeals court went on to note that the plaintiff’s complaint “asserts a claim for monetary damage based upon breach of contract. In order to allege a breach of contract, plaintiff must assert ‘(1) the existence of a valid contract and (2) breach of the terms of that contract.’ Becker v. Graber Builders, Inc., 149 N.C. App. 787, 792, 561 S.E.2d 905, 909 (2002) (quoting Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000)). Where the complaint alleges each of these elements, it is error to dismiss a breach of contract claim under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).” McLamb v. T.P. Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (citation omitted), disc. review denied, 360 N.C. 290, 627 S.E.2d 621 (2006).
“Paragraph four of the plaintiff’s complaint asserts: ‘that the Plaintiff, ERIC TUCKER, was employed under written contract with the Defendant, FAYETTEVILLE STATE UNIVERSITY, . . . and that said contract was to terminate, unless amended, on June 30, 2010.’ Even though the plaintiff did not attach a copy of this written contract to the complaint, we are required to assume that his employment was pursuant to the written contract as alleged, and that the plaintiff was not an at-will employee. See Harris, 85 N.C. App. at 670, 355 S.E.2d at 840. The plaintiff properly pled the existence of a contract.
“The second element of a breach of contract claim is that the terms of the contract were in fact breached by the defendant. The plaintiff alleged that his retirement ‘constituted a forced retirement,’ and that this was a termination of his contract in breach of its provisions. This is a sufficient allegation of breach of contract. Without having the actual contract before us, we cannot ascertain whether the forced retirement of plaintiff actually constituted a breach of the contract. However, this is an issue to be determined either by summary judgment or trial, and not at the motion to dismiss stage of the proceedings. It was error for the trial court to dismiss upon a Rule 12(b)(6) motion.
“Whether plaintiff’s decision to retire constituted an election of remedies is a matter of affirmative defense, State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App 691, 704, 535 S.E.2d 84, 92-93 (2000) (citations omitted), which must be plead by defendants. As an affirmative defense, defendants bear the burden of proof. This was not an appropriate basis for dismissal upon a Rule 12(b)(6) motion, since defendants had not yet filed an answer and asserted any defenses.”
Eric Tucker v. Fayetteville State University and James A. Anderson, Chancellor; Ct.App..N.C.; NO. COA10-726, 2011 N.C. App. LEXIS 613; 4/5/11
Attorneys of Record: (for plaintiff-appellant) McGeachy, Hudson & Zuravel, by Donald C. Hudson. (for defendants-appellees) Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert.
