Roy HILL, Jr. and Wife, Dannie Hill
v.
Bobby Gene PERKINS.
No. 8616SC491.
Court of Appeals of North Carolina.
March 17, 1987.*688 Max D. Ballinger, Greensboro, for defendant-appellant.
David Ray Martin, Pinehurst, for plaintiffs-appellees.
JOHNSON, Judge.
Defendant first assigns as error the trial court's denial of his Rule 12(b)(6), N.C. Rules Civ.P. motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted. We find error in the trial court's denial of defendant's motion to dismiss.
The test on a motion to dismiss for failure to state a claim upon which relief may be granted is whether the pleading, when liberally construed, is legally sufficient. E.g. Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889 (1979). In order for plaintiffs' complaint to have withstood defendant's motion to dismiss, the complaint must (1) provide defendant sufficient notice of the conduct on which the claim is based to enable defendant to respond and prepare for trial and (2) plaintiffs must have stated enough in their complaint to satisfy the substantive elements of at least some legally recognized claim. See e.g., Hewes v. Johnston, 61 N.C.App. 603, 301 S.E.2d 120 (1983). For the purpose of ruling on a motion to dismiss the allegations of the complaint are treated as true. E.g. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). However, conclusions of law or unwarranted deductions of fact are not admitted. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Under the notice theory of pleadings, a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow for the application of res judicata, and to show the type of case brought. Redevelopment Commission v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).
In the case sub judice, plaintiff's complaint does not set forth any facts that apprised defendant or the court of the basis for its claim or allows for the application of res judicata. The inherent difficulties with the definition of a nuisance have been described by this Court as follows:
In the whole field of law there is nothing more difficult to capture within the confines of a workable definition than the concept of nuisance, nothing more dependent on the peculiar facts of the given case. Like the legendary and elusive gadfly Tyll Eulenspiegel it scoffs at the conventionalities of the law.
Dorsett v. Group Development Corp., 2 N.C.App. 120, 124, 162 S.E.2d 653, 656 (1968) (quoting with approval Louisville Refining Co. v. Mudd., Ky., 339 S.W.2d 181 (1960) (emphasis supplied)). Plaintiffs, in their complaint, sought to include a statement of the substantive elements of a nuisance. Count 7 of plaintiffs' complaint contains an incomplete quotation of language used by the Court in Morgan v. High Penn Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953), which plaintiffs contend to be the definition of a private nuisance. Plaintiffs, in their brief, state the following:
In North Carolina, a private nuisance has been defined as being `any substantial and trespassory invasion of another's interest *689 in the private use and enjoyment of land by any liability forming conduct.' Morgan v. High Penn Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953). Plaintiff incorporated practically the very same definition in paragraph seven of his complaint. (R.P. 3-5) A lawful enterprise or business is not regarded as a nuisance per se but may be a nuisance in fact `by reason of its location, or the manner in which it is construed or maintained or operated.' Andrews v. Andrews, 242 N.C. 382, 389, 88 S.E.2d 88, 93 (1955).
The fallacy with plaintiffs' argument, and with their complaint, is that statements of law written by this State's highest appellate court were not intended for use as a ritualistic recitation in the form of a partial quotation in a complaint as a substitute for alleging sufficient facts from which it may be determined what liability forming conduct is being complained of and what injury plaintiffs have suffered. Neither Morgan, nor Andrews v. Andrews, 242 N.C. 382, 88 S.E.2d 88 (1955) support plaintiffs in their contention that their complaint was sufficient. Plaintiffs only included a partial statement of the explanation of nuisance contained in Morgan. See Morgan, supra, at 193, 77 S.E.2d at 689. Moreover, the allegations of the complaints in Morgan and Andrews are set forth in those opinions. There is no comparison between those complaints and plaintiffs' complaint in the case sub judice.
Plaintiffs failed to point out that Morgan, supra, was heard in the Supreme Court on a prior appeal from a denial of a demurrer ore tenus on the theory that the complaint did not state facts sufficient to constitute a cause of action. See, Morgan v. High Penn Oil Co., 236 N.C. 615, 73 S.E.2d 477 (1952) (an order overruling a demurrer ore tenus was not appealable). The Court in Morgan, noted that the complaint alleged in detail "that the oil refinery and the oil distribution center are so constructed and so operated by the defendants as to cast large quantities of noxious fumes and gases onto the neighboring land of the plaintiffs, causing them to suffer great annoyance and discomfort in the enjoyment of their property...." Id. at 615-16, 73 S.E.2d 478.
The Court in Andrews, supra, set out in full the complaint and the demurrer filed in that action. The complaint in Andrews like the complaint in Morgan sets forth the particular harm plaintiffs in those actions complained of. For example, plaintiffs in Andrews alleged, inter alia, the following:
6. That during the winter of 1951-1952 the defendant placed lame wild geese on the said pond, and placed food and bait on the pond and on the banks thereof, at regular intervals, for the purpose of attracting wild geese to the pond and the surrounding area. That as a direct result of the defendant's building and maintaining the pond near the plaintiffs' lands, placing food and lame wild geese thereon for the purpose of attracting wild geese, wild geese in large numbers came to the pond, but instead of staying on the pond, used the pond as a base from which to set upon and destroy plaintiffs' crops and fields as hereinafter alleged.
Andrews, supra, 242 N.C. at 384, 88 S.E.2d at 89. Plaintiffs' complaint in Andrews, supra, goes on to allege defendant's conduct and the injury resulting to them. Plaintiffs' complaint in the case sub judice does not allege any conduct by defendant from which the conclusory statements made in plaintiffs' complaint may be inferred.
Our research reveals a plethora of reported opinions wherein allegations of the defendant's particular conduct are set forth and contained in complaints filed by plaintiffs seeking the abatement of a nuisance. Hooks v. International Speedways, Inc., 263 N.C. 686, 140 S.E.2d 387 (1965); Pharr v. Garibaldi, 252 N.C. 803, 115 S.E.2d 18 (1960); Causby v. High Penn Oil Co., 244 N.C. 235, 93 S.E.2d 79 (1956); Andrews, supra,; Morgan, supra; Pake v. Morris, 230 N.C. 424, 53 S.E.2d 300 (1949); Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E.2d 267 (1939); Aydlett v. Carolina By-Products, Inc., 215 N.C. 700, 2 S.E.2d 881 (1939); Dorsett, supra. There *690 is a reason for the necessity of setting forth allegations of defendants "intentional" conduct in order to state a claim upon which relief may be granted. As the Court in Morgan, supra, stated: "a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case." Morgan, supra, 238 N.C. at 193, 77 S.E.2d at 689 (emphasis supplied). There are no allegations of defendant's conduct in plaintiffs' complaint in the case sub judice. Plaintiffs' complaint merely contains a broad assertion to the effect that the location and operation of defendant's business is a nuisance to them and the court should, therefore, grant them injunctive relief and damages. Moreover, plaintiffs' complaint does not even assert that their remedy at law is inadequate so that they would be entitled to the equitable remedy of a permanent injunction, City of Durham v. Public Service Co. of North Carolina, Inc., 257 N.C. 546, 126 S.E.2d 315 (1962).
For the aforementioned reasons we hold that plaintiffs' complaint fails to state a claim upon which relief may be granted. Therefore, the trial court should have granted defendant's Rule 12(b)(6), N.C. Rules Civ.P., motion to dismiss. In light of our holding we need not address defendant's remaining Assignments of Error.
Judgment is reversed.
ARNOLD and EAGLES, JJ., concur.