An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1057
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     15 July 2014


MARK TURNER AND JULIE WALLACE,
     Plaintiffs

      v.                                      Wake County
                                              No. 12 CVD 12054
ROBERT H. AYERS AND ANN M. AYERS,
     Defendants


      Appeal by plaintiffs from order entered 14 March 2013 by

Judge Debra S. Sasser in Wake County District Court.                     Heard in

the Court of Appeals 6 February 2014.


      Michael W. Strickland & Associates, P.A., by Michael W.
      Strickland, for plaintiff-appellants.

      Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe and
      Mark R. Sigmon, for defendant-appellees.


      CALABRIA, Judge.


      Mark Turner and Julie Wallace (collectively “plaintiffs”)

appeal from the trial court’s order dismissing their complaint

against     Robert     H.   Ayers     and    Ann    M.    Ayers    (collectively

“defendants”) pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)

(2013) for failure to state a claim upon which relief could be

granted.     We affirm.
                                         -2-
       According to the allegations in plaintiffs’ complaint, in

August 2011, plaintiffs and defendants executed an “Offer to

Purchase   and    Contract”      (“the    Contract”)        in    which   plaintiffs

agreed to purchase defendants’ real property in Raleigh, North

Carolina    (“the    property”).         Pursuant      to    the    terms    of    the

contract, plaintiffs had the property professionally inspected.

       The inspection identified several defects in the property.

As a result, the parties entered into a “Due Diligence Request

and Agreement,” (“the Agreement”) whereby defendants agreed to

make   repairs,     including,    inter    alia,      to    “[r]emove     all     crawl

space insulation and replace all duct work as indicated . . . .”

[R p 9]    However, defendants were unable to complete all repairs

prior to the parties’ agreed upon closing date.                      Consequently,

the parties mutually agreed to allow defendants to complete the

repairs after closing.

       Plaintiffs    later    discovered       that    defendants         failed    to

properly    remove    and    replace     the   crawl       space    insulation      as

required by the Agreement.             Defendants’ failure to adequately

remove    the    defective    insulation       resulted      in    mold     spreading

throughout the crawl space.          Plaintiffs demanded that defendants

remedy their deficient repairs, but defendants refused to do so.
                                           -3-
      On 28 August 2012, plaintiffs initiated an action against

defendants in Wake County District Court.                    Plaintiffs’ complaint

alleged that defendants’ failure to properly repair and replace

the crawl space insulation constituted a breach of the Contract.

On   29    October     2012,      defendants       filed    a     motion    to    dismiss

plaintiffs’       claim     because      the    express    terms    of     the    Contract

stated that by closing on the property, plaintiffs agreed to

accept the property in its current condition at the time of

closing.

      On 12 December 2012, plaintiffs filed an amended complaint

which added additional allegations that the parties had agreed

prior to closing to allow defendants to finish their repairs

after     closing     was       completed.        The     amended    complaint        also

included a new claim that defendants were negligent in their

performance of the repairs.               Defendants subsequently filed a new

motion     to    dismiss    plaintiffs’         amended    complaint.         The     trial

court conducted a hearing on defendants’ motion to dismiss on 1

March     2013.      On    14    March    2013,    the    court    entered       an   order

granting        defendants’      motion    to    dismiss    plaintiffs’          complaint

with prejudice.        Plaintiffs appeal.
                                               -4-
      Plaintiffs’ sole argument on appeal is that the trial court

erred       by     dismissing          their     breach      of     contract       claim.1

Specifically, plaintiffs contend that the allegations in their

complaint,        when     taken    as   true,       demonstrate    that   the   parties

orally modified the Contract and that defendants breached the

modified contract.              We disagree.

      “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).                    “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).

      In the instant case, the trial court concluded that the

express terms of the Contract necessarily defeated plaintiffs’



1
  On appeal, plaintiffs do not challenge the trial                               court’s
dismissal of their negligence claim.  Therefore, it                              remains
undisturbed.
                                           -5-
claim.      Initially,         we   note    that       the    trial      court    properly

examined     the     Contract       as     part        of    its    consideration            of

defendants’        motion      to    dismiss       because         the      contract        was

incorporated       by    reference         into     plaintiffs’          complaint          and

attached to defendants’ motion to dismiss. See Oberlin Capital,

L.P.   v.   Slavin,     147     N.C.     App.    52,    60,   554     S.E.2d      840,      847

(2001)(“[W]hen ruling on a Rule 12(b)(6) motion, a court may

properly    consider          documents     which       are    the       subject       of    a

plaintiff's complaint and to which the complaint specifically

refers even though they are presented by the defendant.”).                                  The

Contract    stated,      in    relevant     part:       “CLOSING      SHALL      CONSTITUTE

ACCEPTANCE OF THE PROPERTY IN ITS THEN EXISTING CONDITION UNLESS

PROVISION    IS     OTHERWISE       MADE    IN    WRITING.”           The    trial     court

determined that plaintiffs, by executing this provision, could

not successfully pursue a breach of contract claim based upon a

defective condition of the property.

       Plaintiffs do not dispute that they executed the Contract,

including the provision cited by the trial court, but they claim

that the provision was not binding since it was orally modified

by the parties.         In support of this argument, they note that our

Supreme Court has held that

            [t]he provisions of a written contract may
            be modified or waived by a subsequent parol
                                             -6-
               agreement, or by conduct which naturally and
               justly leads the other party to believe the
               provisions of the contract are modified or
               waived. This principle has been sustained
               even where the instrument provides for any
               modification of the contract to be in
               writing. . . .

Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628,

636, 32 S.E.2d 34, 39 (1944) (citations omitted).

      However,        while    plaintiffs          are   correct        that      Whitehurst

permits oral modification of a contract, even when the contract

expressly       requires       modification         to    be     in     writing,       their

complaint      still    fails     to    establish        that    such    a     modification

occurred in the instant case.                As this Court has made clear, “a

modification to a contract must be supported by consideration.”

Sessler v. Marsh, 144 N.C. App. 623, 634, 551 S.E.2d 160, 166-67

(2001).        “Consideration          consists     of    any    benefit,         right,   or

interest       bestowed       upon     the    promisor,         or    any      forbearance,

detriment, or loss undertaken by the promisee.” Id. at 634, 551

S.E.2d    at    167    (internal        quotations        and    citations        omitted).

Plaintiffs’ complaint merely alleges that the parties agreed to

allow defendants more time to complete repairs which defendants

had already agreed to perform.                     There are no allegations that

suggest that this oral agreement provided any additional benefit

to   defendants        or   any      “forbearance,        detriment,         or   loss”    to
                                  -7-
plaintiffs.    Id.   Consequently, plaintiffs cannot rely upon an

oral modification of the Contract to support their breach of

contract claim.

    Since     plaintiffs   proceeded    to     closing,    they   agreed   to

accept the property in its current condition under the express

terms of the Contract.     Pursuant to the Contract, they could not

thereafter claim that defendants’ repairs to the property were

inadequate.     Thus,   the   trial    court    properly    concluded   that

plaintiffs’ complaint failed to state a valid claim for breach

of contract.    The trial court’s order is affirmed.

    Affirmed.

    Judges STROUD and DAVIS concur.

    Report per Rule 30(e).
