Garvin v. City of Fayetteville , 101 N.C. App. 121 ( 1991 )

401 S.E.2d 133 (1991) 101 N.C. App. 121

Lee GARVIN and Phil Taylor d/b/a G & T Investments, Plaintiff-Appellants,
v.
CITY OF FAYETTEVILLE, North Carolina; City Council of the City of Fayetteville; J.L. Dawkins in his official capacity as Mayor of the City of Fayetteville, Mildred Evans, Milo McBryde, Nat Robertson, Jr., Tommy Bolton, Ida Ross, Joseph L. Pillow, Thelbert Torrey, Suzan Cheek, Mark Kendrick, in their official capacity as members of the Fayetteville City Council; John Smith in his official capacity as City Manager of Fayetteville; Ben Watson, Thornton W. Rose, Beth Finch, Albert E. Rummans, Monroe Evans, Thomas Bradford, in their official capacity as members of the Fayetteville Airport Commission; and Tom Ray, in his official capacity as Manager of the Fayetteville Municipal Airport, Defendants-Appellees.

No. 9012SC805.

Court of Appeals of North Carolina.

March 5, 1991.

Barrington, Herndon & Raisig, P.A. by Carl A. Barrington, Jr., and Paul J. Raisig, Jr., Fayetteville, for plaintiff-appellants.

Reid, Lewis, Deese & Nance by Marland C. Reid, Fayetteville, for defendants-appellees.

City of Fayetteville by Robert C. Cogswell, Jr., Fayetteville, for defendant-appellee.

HEDRICK, Chief Judge.

We consider only whether the trial court erred in allowing defendants' 12(b)(6) motion dismissing plaintiffs' complaint pursuant to N.C.R.Civ.P. 12(b)(6).

Defendants cite and rely on Williams v. Wallace, 260 N.C. 537, 133 S.E.2d 178 (1963), wherein the Supreme Court affirmed the trial court's order allowing defendant's demurrer on the grounds that the allegations in plaintiff's complaint were insufficient to state a good cause of action (emphasis added) against the defendant. The cited case and the case now before us, while similar with respect to the facts and substantive law, are procedurally distinguishable, and the cited case affords no support for defendants' contention that the trial court did not err in dismissing plaintiffs' complaint for failure to state a claim upon which relief could be granted pursuant to G.S. 1A-1 12(b)(6). For a comparison of a demurrer under the former practice with the present Rule 12(b)(6), see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

A claim should not be dismissed for failure to state a claim upon which relief could be granted unless it appears that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. F.D.I.C. v. Loft Apartments, 39 N.C.App. 473, 250 S.E.2d 693, disc. review denied, 297 N.C. 176, 254 S.E.2d 39 (1979). A complaint should not be dismissed for failure to state a claim upon which relief could be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. O'Neill v. Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979). A claim should be dismissed under Rule 12(b)(6) where it appears that plaintiff is entitled to no relief under any statement of facts which could be proven; this will occur when there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. Orange County v. Department of Transportation, 46 N.C. App. 350, 265 S.E.2d 890, disc. review denied, 301 N.C. 94 (1980).

Our Supreme Court defined conversion as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights. Spinks v. Taylor and Richardson v. Taylor Co., 303 N.C. 256, 278 S.E.2d 501 (1981). The owner of personalty may maintain an action to recover possession of the property against anyone who is in wrongful possession of it. Mica Industries v. Penland, 249 N.C. 602, 107 S.E.2d 120 (1959).

In the present case, plaintiffs have alleged that the defendants converted the plaintiffs' two Port-a-Port portable aircraft hangars to their own use. Plaintiffs have alleged that their contract with Flight Unlimited, Inc. provided that the plaintiffs would retain ownership of the hangars if the lease was terminated. The lease here was terminated pursuant to an ipso facto bankruptcy clause in the agreement.

Whether the plaintiffs can recover against the defendants depends considerably on whether the hangers were in fact "trade fixtures" and thus personalty, or became improvements affixed to the realty. That question is yet to be resolved. Nothing in plaintiffs' complaint discloses an insurmountable bar to their right to recover. Thus, we hold the trial court erred in dismissing plaintiffs' complaint for failure to state a claim upon which relief could be granted, and the order appealed from will be reversed and the cause remanded to the Superior Court for further proceedings.

Reversed and remanded.

COZORT and LEWIS, JJ., concur.