An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 plaintiffappellant.

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.
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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 
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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 
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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 
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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 
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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.”
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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.
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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] 
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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 
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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).