                                   NO. COA13-909

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 April 2014


CHRISTOPHER BENJAMIN,
     Plaintiff,

    v.                                     Durham County
                                           No. 12 CVS 4537
CITY OF DURHAM, and NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION –
DIVISION OF MOTOR VEHICLES,
     Defendants.


    Appeal by plaintiff from order entered 11 April 2013 by

Judge Paul Gessner in Durham County Superior Court.                 Heard in

the Court of Appeals 19 February 2014.


    Bratcher Adams PLLC, by J. Denton Adams and Brice Bratcher,
    for plaintiff-appellant.

    Office of the City Attorney, by Kimberly M. Rehberg, for
    defendant-appellee the City of Durham.


    BRYANT, Judge.


    Where plaintiff fails to plead each element of a claim for

specific performance, a dismissal pursuant to Rule 12(b)(6) is

appropriate.

    On    25    November   2009,    plaintiff   Christopher      Benjamin,   a

solid   waste   truck   driver     for   defendant   City   of   Durham,   was

ordered by his supervisor to undergo a random drug screening.
                                          -2-
When plaintiff arrived at the drug-testing facility, he realized

he did not have his identification; he then left the facility

and   returned     twenty       minutes    later.       The    testing     facility

informed plaintiff that because he had left the facility he

would not be permitted to take the drug test and that the City

of Durham would be notified of his refusal to test.                  The City of

Durham terminated plaintiff’s employment that same day.

      On 1 December 2009, the City of Durham notified the North

Carolina Department of Motor Vehicles (“DMV”) that plaintiff had

refused    a    random   drug    test.      The   DMV   suspended     plaintiff’s

commercial driver’s license (“CDL”) as              a result.

      On   14    December   2009,     plaintiff     was       reinstated    to   his

position with the City of Durham upon passing a drug test.                        On

21 December, the City of Durham notified the DMV that it was

unclear whether plaintiff had actually refused to take the drug

test on 25 November; the DMV reinstated plaintiff’s CDL license

but not did remove a notation on plaintiff’s record indicating

he refused a drug test.

      On 21 August 2012, plaintiff filed a complaint against the

City of Durham for specific performance, intentional infliction

of emotional distress and defamation of character.                   On 23 March

2013, the City of Durham filed motions to dismiss pursuant to
                                 -3-
N.C. R. Civ. P. 12(b)(1), (2), and (6).      On 11 April 2013, the

trial court granted the City of Durham’s motions to dismiss.

Plaintiff appeals.

                     _________________________________

    Plaintiff’s sole argument on appeal is that the trial court

erred in granting the City of Durham’s motion to dismiss his

specific performance claim under Rule 12(b)(6) for failure to

state a claim upon which relief may be granted.    We disagree.

    "This Court must conduct a de novo review of the pleadings

to determine their legal sufficiency and to determine whether

the trial court's ruling on the motion to dismiss was correct."

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580

S.E.2d 1, 4 (2003).

         The motion to dismiss under N.C. R. Civ. P.
         12(b)(6) tests the legal sufficiency of the
         complaint.    In ruling on the motion the
         allegations of the complaint must be viewed
         as admitted, and on that basis the court
         must determine as a matter of law whether
         the allegations state a claim for which
         relief may be granted.

Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615

(1979) (citations omitted), disapproved of on other grounds by

Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

         It is well-settled that a plaintiff's claim
         is properly dismissed under Rule 12(b)(6)
         when one of the following three conditions
                                            -4-
              is satisfied: (1) the complaint on its face
              reveals that no law supports the claim; (2)
              the complaint on its face reveals the
              absence of facts sufficient to make a valid
              claim; or (3) the complaint discloses some
              fact that necessarily defeats the claim.

Woolard v. Davenport, 166 N.C. App. 129, 133, 601 S.E.2d 319,

322 (2004) (citation omitted).

    Plaintiff argues that the trial court erred in granting the

City of Durham’s motion to dismiss under Rule 12(b)(6) because

plaintiff’s complaint for specific performance was sufficiently

pleaded to survive a motion to dismiss.                   The remedy of specific

performance is used "to compel a party to do precisely what he

ought to have done without being coerced by the court."                       McLean

v. Keith, 236 N.C. 59, 71, 72 S.E. 2d 44, 53 (1952) (citation

omitted).      “The party claiming the right to specific performance

must show the existence of a valid contract, its terms, and

either full performance on his part or that he is ready, willing

and able to perform.”         Munchak Corp. v. Caldwell, 301 N.C. 689,

694, 273 S.E.2d 281, 285 (1981) (citation omitted).                        Even if a

party   can    show   a     breach     of    a    valid   contract,   “[s]pecific

performance will not be decreed unless the terms of the contract

are so definite and certain that the acts to be performed can be

ascertained     and   the    court     can    determine     whether   or    not    the

performance     rendered     is   in    accord     with   the   contractual       duty
                                             -5-
assumed.”     N.C. Med. Soc’y v. N.C. Bd. of Nursing, 169 N.C. App.

1, 11, 610 S.E.2d 722, 727—28 (2005) (citations omitted).

        Plaintiff contends that he pled all three elements required

for specific performance in his complaint.                        Plaintiff argues

that he established a valid contract by stating in his complaint

that “[plaintiff] is an employee of the City of Durham, and was

so employed in Solid Waste Management as a driver on November

25, 2009[,]” “[the] City of Durham is the employer of Plaintiff

.   .   .   and    was   his      employer    on    November    25,    2009[,]”     that

defendant reported to and was fired by the City of Durham’s

Human Resources department after being refused for drug testing,

“[t]hat on December 14, 2009, Plaintiff’s job position with the

City of Durham was reinstated by the City of Durham[,]” and that

the city manager for the City of Durham wrote to the DMV on

plaintiff’s        behalf      to     have    plaintiff’s       CDL    certification

reinstated.        In its answer to plaintiff’s complaint, and again

at the hearing on the City of Durham’s motions to dismiss, the

City of Durham conceded to the trial court that plaintiff was,

and     remains,    their      employee.             However,   plaintiff     did    not

provide a copy of his employment agreement with the City of

Durham in his complaint, nor did he present evidence at the

hearing     regarding       his     terms    of    employment   with    the   City    of
                                   -6-
Durham.     As plaintiff’s complaint must be liberally construed,

we find that plaintiff has alleged sufficient facts to show the

existence of a valid contract.        Moreover, the City of Durham’s

acknowledgement    of    an   employee-employer       relationship      with

plaintiff   provides    evidence   that   a   valid   contract   did   exist

between the parties.

    To sustain a claim for specific performance, plaintiff must

also show the terms of the contract.

            The sole function of the equitable remedy of
            specific performance is to compel a party to
            do that which in good conscience he ought to
            do without court compulsion. The remedy
            rests in the sound discretion of the trial
            court, and is conclusive on appeal absent a
            showing of a palpable abuse of discretion.

Munchak Corp. v. Caldwell, 46 N.C. App. 414, 418, 265 S.E.2d

654, 657 (1980) (citations omitted), modified in part, 301 N.C.

689, 273 S.E.2d 281 (1981).

    Plaintiff argues that he “alleged relevant, specific terms

of this contract in his complaint” because “[a] contract that

requires an employee to hold a CDL requires both employer and

employee to comply with these laws, and is therefore a term of

the contract.” In his complaint, plaintiff stated that: his job

required him to have a CDL; to keep his CDL he had to submit to

random drug screenings; the City of Durham violated its drug
                                            -7-
testing policies by failing to establish a chain of custody on

plaintiff’s drug test refusal when it terminated plaintiff; and

because the City of Durham did not follow its own procedures

regarding    chain    of    custody,        plaintiff’s      “CDL       and   record       was

blemished.”     The trial court, in granting the City of Durham’s

motion to dismiss, noted that plaintiff failed to sufficiently

plead the terms or elements of specific performance.                               We agree,

as by not including the City of Durham’s drug testing policies

or   his   employment       documentation           with    or    in    his    complaint,

plaintiff    has     failed      to    provide      the    specific      terms       of    the

policies     upon     which        his      complaint       is     based.          "Specific

performance will not be decreed unless the terms of the contract

are so definite and certain that the acts to be performed can be

ascertained    and    the     court        can   determine       whether      or    not    the

performance    rendered       is      in   accord    with    the       contractual        duty

assumed."     N.C. Med. Soc'y, 169 N.C. App. at 11, 610 S.E.2d at

727—28.     As such, without evidence of the contract and its terms

the trial court could not ascertain “the acts to be performed”

or whether “the performance rendered [was] in accord” with those

terms.     Accordingly, the trial court did not err in dismissing

plaintiff’s    claim       for     specific       performance          for    failure       to

demonstrate the required elements of the claim.
                         -8-
Affirmed.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).
