Abc Servs., LLC v. Wheatly Boys, LLC, COA17-981

Docket NºNo. COA17-981
Citation817 S.E.2d 397, 259 N.C.App. 425
Case DateMay 15, 2018
CourtCourt of Appeal of North Carolina (US)

259 N.C.App. 425
817 S.E.2d 397

ABC SERVICES, LLC d/b/a Taylor's Quick Lube & Car Wash, Plaintiff,
WHEATLY BOYS, LLC d/b/a Wheatly Boys Tire & Automotive, Defendant.

No. COA17-981

Court of Appeals of North Carolina.

Filed: 15 May 2018

Harvell and Collins, P.A., by Russell C. Alexander and Wesley A. Collins, Morehead City, for the Plaintiff.

Wheatly, Wheatly, Weeks, Lupton & Massie, P.A., by Claud R. Wheatly, III, Beaufort, for the Defendant.

DILLON, Judge.

259 N.C.App. 426

ABC Services, LLC ("Plaintiff"), brought this action claiming that an employee of Wheatly Boys Tire & Automotive ("Defendant") damaged its car wash facility when the employee dumped a large quantity of diesel fuel into a drain at the facility during the process of washing Defendant's truck. The trial court dismissed Plaintiff's claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiff appeals, contending that the trial court abused its discretion in reviewing Defendant's motion to dismiss sua sponte and without notice to Plaintiff, and thereafter erred by dismissing Plaintiff's claims despite the presence of a dispute over material facts. After reviewing the information before the trial court, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Background

In December 2014, an individual (the "Employee") employed by Defendant drove a company vehicle, a truck with an off-road diesel holding tank, into a washing bay at a car wash in Beaufort owned by Plaintiff. The Employee began washing the vehicle's holding tank, dumping the residue and its remaining contents into the car wash's drainage system. The Employee continued for 15-20 minutes before a car wash employee asked him to stop.

Following this incident, a smell of diesel wafted from the drain. Witnesses reported seeing a dark, greasy liquid inside the drain. Plaintiff ultimately hired an outside cleaning company to dispose of the drain's contents in an environmentally appropriate manner.

Ten months after the incident, in October 2015, Plaintiff filed a complaint against Defendant seeking recovery of its cleaning costs. Defendant filed an answer which contained a Rule 12(b)(6) motion to dismiss. Sometime later, before trial began, the parties stipulated to a Pre-Trial Order identifying motions in limine as the only motions pending before the court.

On 30 January 2017, the trial court heard the motions in limine and then empaneled a jury. The next day, immediately before trial was to

259 N.C.App. 427

begin, the trial court elected to hear Defendant's Rule 12(b)(6) motion. The trial court granted Defendant's motion to dismiss as to all of Plaintiff's claims. Plaintiff appeals.

817 S.E.2d 399

II. Analysis

A. Judicial Adherence to Local Rules

Plaintiff argues the trial court improperly heard and subsequently granted Defendant's Rule 12(b)(6) motion to dismiss with respect to each of Plaintiff's claims. Specifically, Plaintiff views the trial court's sua sponte review of the motion as an abuse of discretion creating unfair surprise. Further, it is Plaintiff's view that its Complaint sufficiently pleaded each of its claims. We look first to the trial court's decision to consider the motion to dismiss on the day of trial.

Generally, a trial court is free to consider a motion to dismiss at any time before trial begins. N.C. R. Civ. P. 12(h)(2) ("A defense of failure to state a claim upon which relief can be granted ... may be made ... at the trial on the merits."). However, motions practice must adhere to the particular rules of the reviewing jurisdiction. Forman & Zuckerman, P. A., v. Schupak , 38 N.C. App. 17, 20, 247 S.E.2d 266, 269 (1978) (citing Vitarelli v. Seaton , 359 U.S. 535, 540, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) ); N.C. Gen. Stat. § 7A-34 (2015) ("The Supreme Court is hereby authorized to prescribe rules of practice and procedure for the superior and district courts supplementary to, and not inconsistent with, acts of the General Assembly.").

North Carolina District 3B, where the present matter was brought, requires in its local rules that dispositive motions must be noticed to all parties at least fifteen (15) days prior to trial. Local Calendaring Rules, Jud. Dist. 3B Superior Court Division Case Management Plan, Rule 2.1. Additionally, in District 3B, all Rule 12 dispositive motions must be accompanied by a supporting memorandum or else are deemed abandoned. Rule 6.8. Failure to provide appropriate notice may lead to unfair surprise to the nonmoving party, see State v. Alston , 307 N.C. 321, 331, 298 S.E.2d 631, 639 (1983) ; but pretrial orders may be modified as late as trial to prevent manifest injustice. N.C. R. Civ. P. 16 ; see Harold Lang Jewelers, Inc. v. Johnson , 156 N.C. App. 187, 189, 576 S.E.2d 360, 361 (2003).

A trial court does have the discretion to modify or avoid the application of a jurisdiction's local rules. N.C. Gen. R. Prac. Super. and Dist. Ct. 2(d); Young v. Young , 133 N.C. App. 332, 333, 515 S.E.2d 478, 479 (1999). In exercising this discretion, the trial court must be careful to give proper regard to the purpose of the applicable local rules. Id. We therefore

259 N.C.App. 428

review a judge's discretionary decision to act outside the prescription of local rules for an abuse of discretion. White v. White , 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) ("It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.").

Here, the trial court issued a discovery scheduling order requiring each party to serve notice of its dispositive motions at least fifteen (15) days prior to trial. Defendant included its Rule 12(b)(6) motion to dismiss in its initial answer, but failed to serve any notice of or any memorandum supporting the motion fifteen (15) days before trial began. Rather, the trial court judge chose to exercise his discretion and hear Defendant's motion to dismiss on the day of trial.

Plaintiff acknowledges that this issue has been previously decided by our Court in Harold Lang Jewelers, Inc., v. Johnson , 156 N.C. App. 187, 576 S.E.2d 360 (2003), but contends that the case before us is distinguishable. In Johnson , the trial court issued a pretrial order stating that there were no motions pending before the court that needed to be addressed before trial. Id. at 189, 576 S.E.2d at 361. Still, the trial court elected to hear a dispositive motion on the day of trial. Id. This Court explained that the nonmoving party could not feign unfair surprise because the pending motion was "first presented in [the moving party's] answer." Id. Plaintiff contends that Johnson is distinguishable because in the present case, although Defendant presented its motion to dismiss in its answer, Plaintiff pleaded only that Defendant had failed to state a claim. The language of the motion was bare, unlike the detailed motion in Johnson . However, our Court in Johnson also held that the trial court's consideration of the pending motion

817 S.E.2d 400

was proper because Rule 16 of the Rules of Civil Procedure states that a pretrial order may be "modified at trial to prevent manifest injustice." Id.

We find Johnson instructive in this case. Here, Defendant placed Plaintiff on notice of the existence of its motion to dismiss when it filed an answer in December 2015, over a year before the motion...

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