An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1168
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


ELIZABETH S. MCGILL DAVIS,
     Plaintiff,

      v.                                       Onslow County
                                               No. 12 CVS 4163
GARY EDWARD DAVIS, WANDA SUE
BENNETT, DONNA THOMAS, BRIAN
GRAF, JR., AND CHRIS GRAF,
     Defendants.


      Appeal by plaintiff from order entered 1 August 2013 by

Judge Jack Jenkins in Onslow County Superior Court.                      Heard in

the Court of Appeals 3 February 2014.


      George Collins, PA, by George L. Collins, for plaintiff-
      appellant.

      Mewborn & DeSelms, Attorneys at Law, by Brett J. DeSelms,
      for defendants-appellees.


      HUNTER, JR., Robert N., Judge.


      Plaintiff Elizabeth S. McGill Davis (“Plaintiff”) appeals

from a 1 August 2013 order granting a motion to dismiss under

N.C. R. Civ. P. 12(b)(6) in favor of Gary Edward Davis, Wanda

Sue   Bennett,    Donna    Thomas,     Brian    Graf,   Jr.,    and   Chris    Graf

(collectively “Defendants”).           After careful review, we affirm.
                                    -2-
                       I. Facts & Procedural History

    Plaintiff     filed     a   complaint    against    Defendants    on    22

October   2012   seeking    one-half   of    gross     rents   collected    on

“rental property” owned by her deceased husband, Virgil E. Davis

(“Virgil”).      Plaintiff and Virgil entered into a pre-marital

agreement (the “Agreement”) on 5 April 2011, which was attached

to the Complaint.        The Agreement includes a handwritten clause

under Section VI which says

           If at my death, [Plaintiff] so desires to
           continue to live in my home at 263 Batchelor
           Rd. Richlands, NC, until her death, or she
           remarries, she may do so provided she does
           not cohabit with another man.    [Plaintiff]
           will also receive one half of rental income
           from rental property under same conditions
           as stated above.

    Virgil passed away on 9 October 2011.               Plaintiff recorded

the Agreement in the Onslow County Register of Deeds Office on 4

November 2011.

    The complaint alleged that “Defendants have refused to pay

rents to Plaintiff subsequent to April 2012 contrary to her

entitlement to one-half (1/2) of rental income as stated in the

Agreement.”      The    complaint   also    alleged    that    Plaintiff   was

“entitled to one-half (1/2) of the rents collected each month

without reduction for depreciation and expenses.”

    Defendant Gary Davis filed a motion to dismiss pursuant to
                                       -3-
N.C. R. Civ. P. 12(b)(6) on 30 October 2012 and defendants Wanda

Sue Bennett, Donna Thomas, Brian Graf, Jr., and Chris Graf filed

a motion to dismiss on 2 November 2012.                   Defendants provided

Plaintiff with notice of hearing for both motions to dismiss on

28 June 2013.        The trial court dismissed Plaintiff’s complaint

with prejudice on 1 August 2013.               Plaintiff filed timely notice

of appeal on 6 August 2013.

                  II. Jurisdiction & Standard of Review

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat.

§ 7A–27(b) (2013), as Plaintiff appeals from a final order of

the superior court as a matter of right.

         The only issue on appeal is whether Plaintiff’s complaint

is sufficient under the notice pleading standard of N.C. R. Civ.

P.   8    to   survive   a   Rule   12(b)(6)    motion.     “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,

aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).                  “‘On a

Rule 12(b)(6) motion to dismiss, the question is whether, as a

matter of law, the allegations of the complaint, treated as

true, state a claim upon which relief can be granted.’”                 Allred
                                       -4-
v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 282, 669

S.E.2d 777, 778 (2008) (quoting Wood v. Guilford Cty., 355 N.C.

161, 166, 558 S.E.2d 490, 494 (2002)).                Thus, we must consider

Plaintiff’s    complaint     “to     determine   whether,         when   liberally

construed, it states enough to give the substantive elements of

a legally recognized claim.”           Governors Club, Inc. v. Governors

Club Ltd. P’ship., 152 N.C. App. 240, 246, 567 S.E.2d 781, 786

(2002) (internal citations omitted), aff’d per curiam, 357 N.C.

46, 577 S.E.2d 620 (2003).

      Under de novo review, we examine the case with new eyes.

“The word de novo means fresh or anew; for a second time, and an

appeal de novo is an appeal in which the appellate court uses

the   trial   court’s     record    but   reviews     the   evidence      and   law

without deference to the trial court’s rulings.”                         Parker v.

Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007)

(quotation marks and citations omitted).

                                 III. Analysis

      Dismissal of a claim under Rule 12(b)(6) is proper when one

of    the   three   following      conditions    is    satisfied:        “(1)   the

complaint     on    its   face     reveals   that     no    law    supports     the

plaintiff’s claim; (2) the complaint on its face reveals the

absence of facts sufficient to make a good claim; or (3) the
                                          -5-
complaint      discloses      some     fact    that   necessarily    defeats       the

plaintiff’s claim.”           Burgin v. Owen, 181 N.C. App. 511, 512, 640

S.E.2d 427, 428–29 (2007).

        At its core, the present dispute concerns a pre-marital

contract between Virgil and Plaintiff and whether or not its

terms may be enforced against Defendants.                      However, “[a]s a

general    matter,      a    contract    must    be   sufficiently      definite    in

order that a court may enforce it.”                Brooks v. Hackney, 329 N.C.

166,   170,     404    S.E.2d   854,     857    (1991).     “Furthermore,     to    be

binding, the terms of a contract must be definite and certain or

capable of being made so; the minds of the parties must meet

upon a definite proposition.”              Elliott v. Duke University, Inc.,

66 N.C. App. 590, 596, 311 S.E.2d 632, 636, disc. rev. denied,

311    N.C.    754,    321   S.E.2d     132    (1984).      Contracts    describing

property       must    be    described    with     some     particularity    to    be

enforceable.          See Snug Harbor Prop. Owners Ass’n v. Curran, 55

N.C. App. 199, 204, 284 S.E.2d 752, 755 (1981).

       These    principles      apply    to    pre-marital    agreements.         N.C.

Gen. Stat. § 52B-2 (2013) (defining a pre-marital agreement as

an “agreement”); Turner v. Turner, 242 N.C. 533, 539, 89 S.E.2d

245, 249 (1955) (“The principles of construction applicable to

antenuptial       contracts      and     to     contracts    generally     are     the
                                      -6-
same.”).        While   pre-marital         agreements      do   not     require

consideration to be valid,           pre-marital agreements require the

other elements of construction inherent in contract law.                     N.C.

Gen. Stat. § 52B-3 (2013); Howell v. Landry, 96 N.C. App. 516,

525, 386 S.E.2d 610, 615 (1989).               Pre-marital agreements may

convey property upon the death of one of the parties to the

agreement.     N.C. Gen. Stat. § 52B-4(a)(3) (2013).

    Here, the complaint and its appended pre-marital agreement

do not describe with any particularity the “rental property” at

issue.     Paragraph I(A) states that the parties to the contract,

Virgil and Plaintiff, release “any claim of the other Party,

upon separation or otherwise, without regard to any time or

effort   invested   during     the    course    of    the    marriage   in   the

maintenance,     management,     or     improvement         of   the    Separate

Property.”     Virgil’s separate property listed under Schedule A1

of the Agreement includes his home at 263 Batchelor Rd., several

mobile homes located on Batchelor Rd., 110 acres of land, a

pickup truck, a van, two other cars, two lawnmowers, two farm

tractors, two bank accounts, stocks, a life insurance policy, a

retirement account, and a 401(k) account.



1
  Schedule A includes a subtitle of                  “Separate   Property    and
Financial Disclosure of Husband-to-Be.”
                                        -7-
      Virgil also handwrote an “additional clause” into Section

VI of the Agreement which said:

             If at my death, [Plaintiff], so desires to
             continue to live in my home at 263 Batchelor
             Rd. Richlands, NC, until her death, or she
             remarries, she may do so, provided she does
             not cohabit with another man. Sue will also
             receive one half of rental income from
             rental property under same conditions as
             stated above.2

At no point within the pre-marital agreement or the complaint is

“rental   property”       identified.     Reading    Sections    I(A)     and   VI

together, Plaintiff could only feasibly claim a right to rental

income produced by properties besides those listed in Schedule

A,   which    are    explicitly       identified    as    separate      property.

However, the property outside of the separate property is never

identified in either the complaint or the Agreement.                    As such,

“rental property” may not be identified based on the face of the

complaint, meaning the complaint contained an “absence of facts

sufficient to make a good claim.”             Burgin, 181 N.C. App. at 512,

640 S.E.2d at 428–29.

      In addition, the complaint contains no statement showing

why Defendants are the proper parties against whom suit should

be   brought.       The   complaint    contains    only   the   names    of   each



2
  We also note that Plaintiff was represented by counsel in the
drafting of the pre-marital agreement, while Virgil was not.
                                          -8-
defendant and the counties where they live.                   The complaint does

not state that Defendants are Virgil’s heirs at law or legatees.

Lacking   this   information,        no    chain     of   ownership    showing     the

nexus between the “rental property” and any of the defendants,

whether possessed for rental income producing purposes or not,

is   provided.      Even        if   Plaintiff’s          complaint     included    a

sufficient    description       of   the   rental     property,       the    complaint

made no attempt to describe Defendants’ ownership interests in

it or their duty to pay rents to Plaintiff.

     Accordingly, Plaintiff’s complaint does not include enough

facts “to give the substantive elements of a legally recognized

claim,”   Governors Club, 152 N.C. App. at 246, 567 S.E.2d 781 at

786, and dismissal under Rule 12(b)(6) was proper.

      “The    decision     to    dismiss        an   action    with     or    without

prejudice is in the discretion of the trial court and will not

be disturbed on appeal absent an abuse of discretion.”                           First

Fed. Bank v. Aldridge, ___ N.C. App. ___, ___, 749 S.E.2d 289,

292 (2013).      “Abuse of       discretion results where the court’s

ruling is manifestly unsupported by reason or is so arbitrary

that it could not have been the result of a reasoned decision.”

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

The North Carolina Rules of Civil Procedure provide that “[a]
                                             -9-
party may amend his pleading once as a matter of course at any

time before a responsive pleading is served. . . . Otherwise a

party   may     amend    his    pleading      only      by    leave    of   court        or   by

written consent of the adverse party; and leave shall be freely

given    when       justice    so    requires.”          N.C.    R.    Civ.    P.    15(a).

“[W]hen the plaintiff completely fails to make any effort to

amend the pleading, take a voluntary dismissal, or move that the

complaint be dismissed without prejudice, the trial court does

not    abuse    its     discretion      in    dismissing         the    complaint         with

prejudice.”         First Fed. Bank, ___ N.C. App. at ___, 749 S.E.2d

at 292.

       Here     the    record       lacks    evidence        showing    that     Plaintiff

attempted      to     amend    her   complaint       prior      to    Defendants     filing

their answer or evidence that Plaintiff moved that dismissal of

her claim be without prejudice.                     As we held in First Federal

Bank, Plaintiff cannot “claim that the trial court abused its

discretion by not offering Plaintiff, sua sponte, an opportunity

to    amend    the    complaint.”           Id.    at   ___,     749    S.E.2d      at    293.

Plaintiff did not raise this issue below or on appeal.                           As such,

we do not address it further.                     Viar v. N.C. Dep’t of Transp.,

359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (“It is not the

role of the appellate courts, however, to create an appeal for
                             -10-
an appellant.”).

                        IV. Conclusion

    For the reasons stated above, the decision of the trial

court is

    AFFIRMED.

    Chief Judge MARTIN and Judge ELMORE concur.

    Report per Rule 30(e).
