ABC SERVICES, LLC d/b/a TAYLOR'S QUICK LUBE & CAR WASH, Plaintiff,
WHEATLY BOYS, LLC d/b/a WHEATLY BOYS TIRE & AUTOMOTIVE, Defendant.
in the Court of Appeals 20 February 2018.
by Plaintiff from order entered 1 February 2017 by Judge
Benjamin G. Alford in Carteret County No.15-CVS-1130 Superior
Harvell and Collins, P.A., by Russell C. Alexander and Wesley
A. Collins, for the Plaintiff.
Wheatly, Wheatly, Weeks, Lupton & Massie, P.A., by Claud
R. Wheatly, III, for the Defendant.
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.
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.
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
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.
January 2017, the trial court heard the motions in limine and
then empaneled a jury. The next day, immediately before trial
was to 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.
Judicial Adherence to Local Rules
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.
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 (1959)); N.C. Gen. Stat.
§ 7A-34 (2015) ("The Supreme Court is hereby
authorized to prescribe rules of ...