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ABC Services, LLC v. Wheatly Boys, LLC

Court of Appeals of North Carolina

May 15, 2018

ABC SERVICES, LLC d/b/a TAYLOR'S QUICK LUBE & CAR WASH, Plaintiff,
v.
WHEATLY BOYS, LLC d/b/a WHEATLY BOYS TIRE & AUTOMOTIVE, Defendant.

          Heard in the Court of Appeals 20 February 2018.

          Appeal by Plaintiff from order entered 1 February 2017 by Judge Benjamin G. Alford in Carteret County No.15-CVS-1130 Superior Court.

          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.

          DILLON, JUDGE.

         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 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.

         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 (1959)); N.C. Gen. Stat. ยง 7A-34 (2015) ("The Supreme Court is hereby authorized to prescribe rules of ...


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