COA Splits On Whether 12(b)(6) May Be Granted Based On Statute Of Frauds
In Burgin v. Owen, decided today, the COA split on whether a complaint may be dismissed under Rule 12(b)(6) if it doesn't plead facts indicating there was a signed writing satisfying the statute of frauds.
The majority affirmed the dismissal. Judge Tyson dissented. He reasoned that the statute of frauds is an affirmative defense which can be raised only by way of answer (or reply) and, as such, shouldn't be considered in the context of a Rule 12(b)(6) motion, which tests the adequacy of a complaint. For support he cited a 1989 case where the NC Supreme Court, in a per curiam reversal, adopted the dissenting opinion of then-Judge (now fellow Womble colleague) Jack Cozort. In that dissent, Judge Cozort made a number of points, one of which was this: "It 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.'"
The majority affirmed the dismissal. Judge Tyson dissented. He reasoned that the statute of frauds is an affirmative defense which can be raised only by way of answer (or reply) and, as such, shouldn't be considered in the context of a Rule 12(b)(6) motion, which tests the adequacy of a complaint. For support he cited a 1989 case where the NC Supreme Court, in a per curiam reversal, adopted the dissenting opinion of then-Judge (now fellow Womble colleague) Jack Cozort. In that dissent, Judge Cozort made a number of points, one of which was this: "It 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.'"
1 Comments:
It strikes me that the key to understanding the majority-minority split in this case is that Judge Tyson seems compelled to dissent by employing an agency paradigm, which then leads him to invocation of the Statute of Frauds to justify why the 12(b)(6) motion should have been rejected and, thus, get the facts to a jury at trial. On the other hand, I'm sympathetic to the majority's literal reading of the entireties statute which makes it clear that with only limited exceptions (and the SOF is not among them), offers to convey entireties property requires the WRITTEN joinder of the spouse. Here, that clearly didn't happen.
So at the end of the day, should I doubt myself for thinking that the majority has the upper hand on statutory interpretation here? One COULD get to agency... and the Statute of Frauds... and the rest of Judge Tyson's argument... IF you could get past the majority's point regarding the written joinder of spouses in an offer to convey in the FIRST place, which I don't believe you can. The simplicity of resolution of an issue like this if you're the (potential) plaintiff in such an action is to have your attorney review the offer, I suppose-- the entireties issue should have been among the first ones spotted upon appropriate review of the initial written agreement.
By the way, this is my first comment after many moons of visiting and reading this excellent blog. Keep up the good work! There ARE some of us out here who take an unnatural interest in NC appellate issues and the law with our free time, and this is an outstanding resource for keeping up with what's going on (and discussing it). Just in case you were feeling unappreciated for the hard work, don't. :)
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