               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA19-415

                                   Filed: 5 May 2020

Jackson County, No. 18CVD776

RACHEL QUACKENBUSH, Plaintiff

              v.

KENNETH GROAT, Defendant.


        Appeal by plaintiff from order entered 19 December 2018 by Judge Donna F.

Forga in District Court, Jackson County. Heard in the Court of Appeals 30 October

2019.


        Legal Aid of North Carolina, Inc., by Elysia Prendergast Jones, Suzanne
        Saucier, Devin Trego, TeAndra Miller and Celia Pistolis, for plaintiff-
        appellant.

        No brief filed for defendant-appellee.


        STROUD, Judge.


        Plaintiff appeals the dismissal of her complaint for a domestic violence

protective order against defendant. Because the plaintiff’s complaint, including the

attached sheets filed with the complaint, stated sufficient factual allegations to

establish a claim under Chapter 50B, the trial court erred by granting defendant’s

motion to dismiss the complaint. We reverse the trial court’s order of dismissal and

remand for further proceedings.

                                       I.    Background
                                    QUACKENBUSH V. GROAT

                                         Opinion of the Court



       On 13 December 2018, plaintiff filed a “COMPLAINT AND MOTION FOR

DOMESTIC VIOLENCE PROTECTIVE ORDER” against her husband, defendant.

Plaintiff alleged that defendant had been verbally abusive to her and her children

and her daughter had disclosed sexual abuse committed by defendant to a school

counselor. The same day plaintiff’s complaint was filed, an ex parte domestic violence

protection order (“DVPO”) was entered ordering defendant to stay away from the

home and the children’s schools. A hearing was scheduled for 19 December 2018 for

consideration of entry of a DVPO.

       On 19 December 2018, when the case was called for hearing on return of the

ex parte order, defendant’s attorney made an oral motion to dismiss the plaintiff’s

complaint under North Carolina General Statute § 1A-1, Rule 12(b)(6) and this

Court’s case of Martin v. Martin, ___ N.C. App. ___, 822 S.E.2d 756 (2018).1 Martin

was filed 18 December 2018, and the hearing in this case was conducted on 19

December 2018, but on 8 February 2019, a petition for rehearing was allowed, and on

16 July 2019 a new opinion was issued superseding the former version of the opinion

upon which the trial court relied. See Martin v. Martin, ___ N.C. App. ___, ___, 832

S.E.2d 191, 194-95 (2019). Based upon the former Martin opinion, the trial court

dismissed plaintiff’s complaint for “due process” violations against defendant because

plaintiff’s allegations were not specific enough. Plaintiff appeals.


1 Martin is not identified by name but from the context of the transcript, which is eleven pages in its
entirety, it is clear defendant’s counsel and the trial court were referring to Martin.

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                                   II.    Standard of Review

      Plaintiff contends that the trial court erred in granting defendant’s motion to

dismiss her complaint.

             The standard of review of an order dismissing a complaint
             for failure to state a claim upon which relief can be granted,
             G.S. § 1A–1, Rule 12(b)(6), is to determine 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. A complaint may be
             dismissed pursuant to Rule 12(b)(6) if no law exists to
             support the claim made, if sufficient facts to make out a
             good claim are absent, or if facts are disclosed which will
             necessarily defeat the claim.

Hargrove v. Billings & Garrett, Inc., 137 N.C. App. 759, 760–61, 529 S.E.2d 693, 694

(2000) (citations and quotation marks omitted).

                           III.    Attachments to Form Complaint

      Because the trial court’s dismissal of plaintiff’s complaint was based upon

defendant’s motion to dismiss based upon a lack of sufficient detail in the allegations

of domestic violence, we will address plaintiff’s second issue on appeal first, regarding

whether the trial court erred by failing to consider several pages of attachments to

the complaint.

      The order dismissing plaintiff’s claim was on the form “Domestic Violence

Order of Protection” AOC-CV-305 Rev 12/15. (Original in all caps.). Only conclusion

of law number 5 was marked: “The plaintiff has failed to prove the grounds for

issuance of a domestic violence protective order.” But no evidentiary hearing was


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                                           Opinion of the Court



held, and the trial court clearly dismissed the complaint based upon defendant’s oral

motion to dismiss2 when defendant argued,

                  It has to be in the body of the Complaint. It doesn’t say --
                  like Paragraph 4 doesn’t say “see additional” -- like I
                  understand you run out of room. But it doesn’t say that.
                  So these aren’t necessarily verified Pleadings within that.
                  These are just email attachments or documents that have
                  been stapled to the back of a page. And even by then, they
                  fail. But like Paragraph 4 which lists out what happened,
                  it has a period, not “see Attachment 1, 2, 3 and 4.” The
                  same with No. 5. The problem with those is that I don’t
                  even know what these attachments are. Are they sworn
                  to? Are they verified? I have no idea.

          In rendering the ruling, the trial court stated its rationale as follows:

                       COURT:       And again, there’s nothing in the
                  Complaint referencing those attachments?

                          MS. HUGHES:            Yes, your Honor.

                         COURT:         Okay. Then based on the Court of
                  Appeals last case[3] which stated “it’s clear that the
                  plaintiff/wife testified several alleged actions of domestic
                  violence that were not pleaded in her Complaint, the Court
                  held that that -- that the protection order against the
                  defendant was remanded to the trial for further
                  proceedings consistent with the holding, that they hold
                  that the admission of testimony of domestic violence not
                  otherwise pleaded in the Complaint in a motion for
                  domestic violence protective order violates the defendant’s
                  rights to due process.” So based on that violation of the
                  defendant’s rights to due process, your motion to dismiss is
                  allowed.

2 Defendant’s filed answer did not include a motion to dismiss based upon Rule 12(b)(6), but it was
signed on 17 December 2018, one day before Martin was issued. (Emphasis added.)

3   The trial court was referring to Martin issued the previous day.

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                                       Opinion of the Court




       Plaintiff filed her complaint pro se and it was handwritten on the form AOC-

CV-303 “COMPLAINT AND MOTION FOR DOMESTIC VIOLENCE PROTECTIVE

ORDER[.]” At the top of the form, just below the case caption and preceding the

numbered paragraphs of the allegations of the complaint, the form includes

instructions as follows:        “Check only boxes that apply and fill in the blanks.

Additional sheets may be attached.” (Emphasis added). Plaintiff marked the boxes

numbered 4, 5, 6, 7, 8 and 11, and she wrote some allegations in the provided blank

lines for all but paragraph 6, which has no blank for additional information. There

were twelve additional sheets attached to the complaint, with detailed allegations of

dates and events.

       The additional pages were also file-stamped along with complaint on 13

December 2018.4 The attached pages included three pages of notes as to specific dates

and details of the allegations in the complaint, a domestic violence victim’s statement,

a safety assessment, and a safety agreement. The attached pages noted the

paragraphs of the form complaint to which the information on that page related. The

first three pages of the attachment each have “#4” handwritten at the top and are

typed notes with dates and times and detailed allegations of instances of defendant



4The first page of the complaint and the Servicemembers Civil Relief Act Affidavit were file-stamped
at 2:43 pm and the first page of the attachments at 2:45 pm. The Affidavit of Status of Minor Child
was stamped at 3:15 pm.



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                                        Opinion of the Court



getting upset because plaintiff would not have sex with him and pushing her; of

defendant yelling at Tamara5 in Wendy’s, where he sat by himself and then threw a

hamburger at Tamara; and of several other instances of alleged verbal abuse of

plaintiff. The next page has “#5” written at the top and is a form entitled “Domestic

Violence Victims Statement[,]” with handwritten allegations and signed by plaintiff

on 13 December 2018, and the following page, also noted as “#5” is the first page of a

six-page “North Carolina Safety Assessment” dated 12 December 2018, regarding the

report to the Department of Social Services of alleged sexual abuse of Tamara by

defendant. Plaintiff’s complaint was sworn and subscribed before the Assistant Clerk

of Superior Court.6 The trial court issued an “Ex Parte Domestic Violence Order of

Protection[,]” (original in all caps), and the findings in the ex parte order included

information from the attachments to the complaint. The summons and complaint

were served on Defendant on 14 December 2018, and on 19 December 2018 he filed

an answer in which he admitted some allegations, denied others, and requested that

plaintiff’s complaint be dismissed.

         While plaintiff did not use legalese in her complaint, the attachments were

included with the filed complaint and the purpose of each attachment was obvious by




5   We have used pseudonyms for the minor children.

6 The form complaint includes language and signature blocks for verification under oath, although
North Carolina General Statute § 50B-2 does not require that the complaint be “sworn to” or “verified”
as argued by defendant’s counsel before the trial court. See N.C. Gen. Stat. § 50B-2(a) (2017)

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                                  Opinion of the Court



the numbers on the attached pages. Defendant did not contend to the trial court that

he did not receive the attached pages with the filed complaint or that they were added

after the complaint was filed.    Defendant’s argument was simply that the form

complaint did not state “see [a]ttachment” or “see additional[.]” But even a brief

examination of the complaint reveals that the numbered attachments each relate to

a particular paragraph number in the form complaint. For example, as noted, the

pages of the attachments with the large “#4” at the top are providing further detail

to paragraph 4 on the complaint form about defendant being verbally abusive to her

and the children.

      The Rules of Civil Procedure require notice pleading, with a policy “to resolve

controversies on the merits . . . rather than on technicalities of pleading.” Smith v.

City of Charlotte, 79 N.C. App. 517, 528, 339 S.E.2d 844, 851 (1986).

                    A suit at law is not a children’s game, but a serious
             effort on the part of adult human beings to administer
             justice; and the purpose of process is to bring parties into
             court. If it names them in such terms that every intelligent
             person understands who is meant, it has fulfilled its
             purpose; and courts should not put themselves in the
             position of failing to recognize what is apparent to everyone
             else.

Harris v. Maready, 311 N.C. 536, 544, 319 S.E.2d 912, 917–18 (1984) (citation and

ellipses omitted).

      The better practice would be for plaintiff to note on the form complaint that

additional pages are attached, but the complaint as filed included the attachments


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                                    Opinion of the Court



and made the purpose of the attached pages clear. From defendant’s argument to the

trial court, there is no question defendant received the full complaint, with all

attached pages, and he knew what they meant. It is not entirely clear whether the

trial court considered the attached pages, although it appears from the colloquy at

the hearing the trial court accepted defendant’s argument that they should not be

considered for purposes of the motion to dismiss. But all of the pages of the complaint,

including the attached pages, were part of the complaint when it was filed; the trial

court considered all of the pages when issuing the ex parte order; and defendant was

served with the entire complaint. We will consider all of the pages for purposes of

this appeal.

                                    IV.   Motion to Dismiss

      North Carolina General Statute § 50B-2(a) sets forth the requirements for a

complaint seeking a DVPO:

               Any person residing in this State may seek relief under this
               Chapter by filing a civil action or by filing a motion in any
               existing action filed under Chapter 50 of the General
               Statutes alleging acts of domestic violence against himself
               or herself or a minor child who resides with or is in the
               custody of such person.

N.C. Gen. Stat. § 50B-2(a) (2017) (emphasis added). Allegations of domestic violence

include

               the commission of one or more of the following acts upon
               an aggrieved party or upon a minor child residing with or
               in the custody of the aggrieved party by a person with


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                                   Opinion of the Court



             whom the aggrieved party has or has had a personal
             relationship, but does not include acts of self-defense:
                    (1)    Attempting to cause bodily injury, or
                    intentionally causing bodily injury; or
                    (2)    Placing the aggrieved party or a member of
                    the aggrieved party's family or household in fear of
                    imminent serious bodily injury or continued
                    harassment, as defined in G.S. 14-277.3A, that rises
                    to such a level as to inflict substantial emotional
                    distress; or
                    (3) Committing any act defined in G.S. 14-27.21
             through G.S. 14-27.33.

N.C. Gen. Stat. § 50B-1 (2017).

      Before the trial court, defendant made an oral motion to dismiss based upon

Rule 12(b)(6) and contended that based on Martin v. Martin, ___ N.C. App. ___, 822

S.E.2d 756 plaintiff’s allegations were not sufficiently specific to afford defendant due

process. The trial court agreed. Again, Martin was filed 18 December 2018, and the

hearing in this case was conducted on 19 December 2018, but on 8 February 2019, a

petition for rehearing was allowed, and on 16 July 2019 a new opinion was issued

superseding the former version of the opinion upon which the trial court relied. See

Martin v. Martin, ___ N.C. App. ____, 832 S.E.2d 191, 194-95 (2019).

      The issue presented in Martin was not whether the plaintiff’s complaint should

be dismissed under Rule 12(b)(6) for failure to state a claim, and the defendant in

Martin did not contend the complaint failed to state a claim upon which relief may be

granted. See generally Martin, ___ N.C. App. ___, 832 S.E.2d 191. Thus, Martin did

not involve a motion to dismiss the complaint for failure to state a claim. See id. The


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                                         Opinion of the Court



specific relevant issue in Martin was whether “the trial court erred by . . . allowing

Plaintiff-Wife to present evidence of alleged incidents of domestic violence of which

Defendant-Husband did not receive notice before trial, in violation of his due process

rights[.]”7 Id. at ___ 832 S.E.2d at 195. In Martin, the trial court held a hearing on

the domestic violence claim, and the defendant objected to admission of evidence

regarding some incidents of domestic violence which he claimed were not plead and

of which he did not have sufficient notice to defend himself. See id. at ___, 832 S.E.2d

at 196. This Court determined that the trial court should not have based a finding of

domestic violence solely on evidence presented by the plaintiff at trial which she had

not mentioned in the complaint, based upon defendant’s objection to that evidence at

trial. See id. at ___, 832 S.E.2d at 196-97.8

        Although Martin does not directly address a ruling on a motion to dismiss

under Rule 12(b)(6), it does note that a complaint under Chapter 50B is subject to the

same standards of notice pleading as any other claim:

                       North Carolina remains a notice-pleading state,
                which means that a pleading filed in this state must
                contain a short and plain statement of the claim
                sufficiently particular to give the court and the parties
                notice of the transactions, occurrences, or series of


7In context, the word “alleged” is referring to the wife’s allegations in her trial testimony. There was
no question she did not “allege” certain specific acts in the complaint as she did in her testimony; this
was the basis of husband’s objection. Martin, ___ N.C. App. at ___, 832 S.E.2d at 196.

8 To the extent the defendant did not object to the plaintiff’s testimony of other incidents of domestic
violence not specifically mentioned in her complaint, this Court held the husband had waived review
of the issue. See Martin, ___ N.C. App. at ___, 832 S.E.2d at 196-97.

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                                   Opinion of the Court



             transactions or occurrences, intended to be proved showing
             that the pleader is entitled to relief. A complaint is
             adequate, under notice pleading, if it gives a defendant
             sufficient notice of the nature and basis of the plaintiff’s
             claim and allows the defendant to answer and prepare for
             trial. While Rule 8 does not require detailed fact pleading,
             it does require a certain degree of specificity, and sufficient
             detail must be given so that the defendant and the Court
             can obtain a fair idea of what the plaintiff is complaining,
             and can see that there is some basis for relief.

Id. at ___, 832 S.E.2d at 195 (citations, quotation marks, ellipses, and brackets

omitted).

      Focusing now on plaintiff’s last two arguments regarding the sufficiency of her

claim for purposes of Rule 12(b)(6) and notice pleading, we turn to her complaint.

Plaintiff alleged that defendant was “verbally abusive to [her] and [her] children” and

her daughter had reported “allegations of sexual abuse committed by” defendant to

her school counselor. The complaint gave additional details regarding some of the

alleged acts of abuse, with sufficient detail “so that the defendant and the Court can

obtain a fair idea of what the plaintiff is complaining, and can see that there is some

basis for relief.” Id. at ___, 832 S.E.2d at 195. Plaintiff’s allegations state a claim

upon which relief may be granted as they are allegations of domestic violence against

her and her children. See N.C. Gen. Stat. §§ 1A-1, Rule 12(b)(6); 50B-1, -2. See

generally N.C. Gen. Stat. § 1A-1, Rule 12(b)(6); Martin, ___ N.C. App. ___, 832 S.E.2d

at 195. Therefore, we reverse and remand.

                                      V.       Conclusion


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                                  Opinion of the Court




      Because plaintiff’s complaint alleged facts sufficient to state a claim for relief

under Chapter 50B, we reverse the trial court’s order dismissing the claim and

remand for further proceedings.

      REVERSED and REMANDED.

      Judges ZACHARY and MURPHY concur.




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