motion to dismiss claim in North Carolina

2020Defendants next argue the trial court’s interlocutory Motion to Dismiss Order affects a substantial right where the Order “was based in part on [the trial court’s] rejection of the defense of collateral estoppel raised by each of the Defendants.” It is well established “the denial of a motion to dismiss a claim for relief affects a substantial right when the motion to dismiss makes a colorable assertion that the -9- claim is barred under the doctrine of collateral estoppel.” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558 , 681 S.E.2d 770, 773 (2009).

2020Defendants next argue the trial court’s interlocutory Motion to Dismiss Order affects a substantial right where the Order “was based in part on [the trial court’s] rejection of the defense of collateral estoppel raised by each of the Defendants.” It is well established “the denial of a motion to dismiss a claim for relief affects a substantial right when the motion to dismiss makes a colorable assertion that the -9- claim is barred under the doctrine of collateral estoppel.” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558 , 681 S.E.2d 770, 773 (2009).

2026This Court has previously stated the following regarding the “without justification” element of a claim for tortious interference with existing contract: “A motion to dismiss a claim of tortious interference is properly granted where the complaint shows the interference was justified[.]” Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 605 (2007) (citing Peoples Sec.

2021“A motion to dismiss a claim of tortious interference is properly granted where the complaint shows the interference was justified[.]” Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 605 (2007) (citing Peoples Sec.

2021See Domingue v. Nehemiah II, Inc., 208 N.C. App. 429, 435 , 703 S.E.2d 462, 466 (2010) (declining to review the plaintiff’s breach of implied warranty of habitability argument when the complaint and the transcript of the motion to dismiss hearing revealed this theory of relief was not raised by the plaintiff or addressed by the trial court).

2021See Domingue v. Nehemiah II, Inc., 208 N.C. App. 429, 435 , 703 S.E.2d 462, 466 (2010) (declining to review the plaintiff’s breach of implied warranty of habitability argument when the complaint and the transcript of the motion to dismiss hearing revealed this theory of relief was not raised by the plaintiff or addressed by the trial court).

2020Nevertheless, we have also recognized “[i]ncantation of the [doctrine of collateral estoppel] does not, however, automatically entitle a party to an interlocutory appeal of an order rejecting [that defense].” Foster v. Crandell, 181 N.C. App. 152, 162 , 638 S.E.2d 526, 534 (2007).

2020Nevertheless, we have also recognized “[i]ncantation of the [doctrine of collateral estoppel] does not, however, automatically entitle a party to an interlocutory appeal of an order rejecting [that defense].” Foster v. Crandell, 181 N.C. App. 152, 162 , 638 S.E.2d 526, 534 (2007).

2023Bruce v. Bruce, 79 N.C. App. 579, 583 , 339 S.E.2d 855, 858 (1986).

2023Bruce v. Bruce, 79 N.C. App. 579, 583 , 339 S.E.2d 855, 858 (1986).

2021Fox v. City of Greensboro, 807 F. Supp.2d 476, 480 (M.D.N.C. 2011).

2021A motion to dismiss a claim for declaratory judgment is “seldom appropriate.” Morris v. Plyler Paper Stock Co., 89 N.C.

2021Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 439 (1974).

2020See United Labs., Inc. v. Kuykendall, 322 N.C. 643, 665 , 370 S.E.2d 375, 389 (1988) (noting that tortious interference with contract may support a claim for unfair or deceptive trade practices).

2020See United Labs., Inc. v. Kuykendall, 322 N.C. 643, 665 , 370 S.E.2d 375, 389 (1988) (noting that tortious interference with contract may support a claim for unfair or deceptive trade practices).

2018App. 44, 47 , 418 S.E.2d 534, 536 (1992).

2018A motion to dismiss a claim or case on such grounds “is a preliminary motion of the type enumerated in Rule 12(b)(2)–(5) and the time for filing such motion is governed by that rule.” Brooks v. Brooks, 107 N.C.

2015Lawrence v. UMLIC-Five Corp., 2007 NCBC 20 ¶ 39 (N.C.

2012App. 349 , 354–55, 595 S.E.2d 778, 783 (2004) (quoting Hogan v. Forsyth Country Club Co., 79 N.C.

2012On a motion to dismiss a claim for IIED “[t]he determination of whether the alleged conduct is considered extreme and outrageous is a question of law for the trial judge, however, the jury must determine whether the conduct is ‘sufficiently extreme and outrageous to result in liability.’” Smith-Price v. Charter Behavioral Health Sys., 164 N.C.

2008Stat. § 1A-1, Rule 12(b)(6) (2007) the trial court must deny a motion to dismiss a claim if, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Newberne v. Dep’t of Crime Control and Public Safety, 359 N.C. 782, 788 , 618 S.E.2d 201, 206 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111 , 489 S.E.2d 880, 888 (1997).

2008Stat. § 1A-1, Rule 12(b)(6) (2007) the trial court must deny a motion to dismiss a claim if, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Newberne v. Dep’t of Crime Control and Public Safety, 359 N.C. 782, 788 , 618 S.E.2d 201, 206 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111 , 489 S.E.2d 880, 888 (1997).

2008Stat. § 1A-1, Rule 12(b)(6) (2007) the trial court must deny a motion to dismiss a claim if, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Newberne v. Dep’t of Crime Control and Public Safety, 359 N.C. 782, 788 , 618 S.E.2d 201, 206 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111 , 489 S.E.2d 880, 888 (1997).

2008Stat. § 1A-1, Rule 12(b)(6) (2007) the trial court must deny a motion to dismiss a claim if, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Newberne v. Dep’t of Crime Control and Public Safety, 359 N.C. 782, 788 , 618 S.E.2d 201, 206 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111 , 489 S.E.2d 880, 888 (1997).

2008“The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.” Block v. County of Person, 141 N.C.

2008"The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Block v. County of Person, 141 N.C.App. 273, 277-78 , 540 S.E.2d 415, 419 (2000).

2004Id. at 632 , 583 S.E.2d at 674 (“We conclude, therefore, that the complaint, taken in the light most favorable to plaintiff, alleges simply that defendants benefitted by earning commissions on the sales transactions ordered by [the agent].

2004Id. at 632 , 583 S.E.2d at 674 (“We conclude, therefore, that the complaint, taken in the light most favorable to plaintiff, alleges simply that defendants benefitted by earning commissions on the sales transactions ordered by [the agent].