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HART v. IVEY

No. 8926SC1192.

403 S.E.2d 914 (1991)

Sandra L. HART and Roger J. Hart, Plaintiffs, v. Howard L. IVEY, Jr. and John Rosenblatt and David King and David Howell and Mike's Discount Beverage, Inc., Defendants. John Dennis LITTLE, Jr. and John Dennis Little, Sr., Defendants and Third-Party Plaintiffs, v. Howard L. IVEY, Jr., Third-Party Defendant.

Court of Appeals of North Carolina.

May 7, 1991.

Attorney(s) appearing for the Case

Olive-Monnett, P.A. & Associates by Terry D. Brown, Charlotte, for plaintiffs-appellants.

Horack, Talley, Pharr & Lowndes by Neil C. Williams, Charlotte, for defendant/third-party plaintiff-appellant John Dennis Little, Sr.

Goodman, Carr, Nixon and Laughrun by Michael P. Carr, Charlotte, for defendant/third-party plaintiff-appellant John Dennis Little, Jr.

Kennedy, Covington, Lobdell & Hickman by F. Fincher Jarrell, Charlotte, for defendants/third-party plaintiffs-appellants John Dennis Little, Sr. and John Dennis Little, Jr.

Golding, Meekins, Holden, Cosper & Stiles by John G. Golding and Terry D. Horne, Charlotte, for defendant-appellee Howard L. Ivey, Jr.

Hedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson and John P. Barringer, Charlotte, for defendant-appellee John Rosenblatt.

Jones, Hewson & Woolard by Harry C. Hewson, Charlotte, for defendant-appellee David King.

Underwood Kinsey & Warren, P.A. by C. Ralph Kinsey, Jr. and Richard L. Farley, Charlotte, for defendant-appellee David Howell.

ORR, Judge.

The sole issue on appeal is whether the trial court erred in dismissing plaintiffs' claim for relief under Rule 12(b)(6) of the N.C.Rules of Civil Procedure. For the reasons below, we hold that the trial court erred.

Under N.C.Gen.Stat. § 1A-1, Rule 12(b)(6) (1983), the question is whether the complaint, liberally construed, states a claim upon which relief may be granted under any theory. An incorrect choice of legal theory upon which the...

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