ABC Servs., LLC v. Wheatly Boys , 259 N.C. App. 425 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-981
Filed: 15 May 2018
Carteret County, No. 15-CVS-1130
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.
Appeal by Plaintiff from order entered 1 February 2017 by Judge Benjamin G.
Alford in Carteret County Superior Court. Heard in the Court of Appeals 20 February
2018.
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
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Opinion of the Court
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.
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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. § 7A-34
(2015) (“The Supreme Court is hereby authorized to prescribe rules of practice and
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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 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
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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
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consideration of the pending motion 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 was heard at trial. The trial court judge had the
discretion to avoid the local rules concerning pretrial orders and to modify the terms
of any pretrial orders at trial. The local rules serve to ensure that all parties are on
notice of trial proceedings and that nothing new is raised at trial for the first time.
We conclude that the trial court did not abuse its discretion in considering
Defendant’s Rule 12(b)(6) motion because Plaintiff had notice of the pending motion
to dismiss.
B. Sufficiency of the Pleadings
In its complaint, Plaintiff brought three claims for relief: (1) intentional and/or
reckless littering; (2) trespass to property; and (3) negligence and/or gross negligence.
Generally, appellate review of a trial court’s grant of a 12(b)(6) motion to dismiss is
de novo. Wray v. City of Greensboro, ___ N.C. ___, ___, 802 S.E.2d 894, 898 (2017).
“[T]he well-pleaded material allegations of the complaint are taken as true; but
conclusions of law or unwarranted deductions of fact are not admitted.” Arnesen v.
Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440, 448, 781 S.E.2d 1, 7 (2015).
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A claim is rightfully dismissed when: “(1) the complaint on its face reveals that no
law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of
facts sufficient to make a good claim; or (3) the complaint discloses some fact that
necessarily defeats the plaintiff's claim.” Newberne v. Dep't of Crime Control & Pub.
Safety, 359 N.C. 782, 784-85, 618 S.E.2d 201, 204 (2005). The sufficiency of the
pleadings setting forth each claim is considered below.
1. Littering
Section 14-399 of the North Carolina General Statutes creates both criminal
liability and a cause of action where a party disposes of litter in an improper location:
No person, including any . . . organization, . . . shall
intentionally or recklessly throw, scatter, spill or place or
intentionally or recklessly cause to be blown, scattered,
spilled, thrown or placed or otherwise dispose of any litter
upon any public property or private property not owned by
the person within this State or in the waters of this
State . . . except:
(1) When the property is designated by the State or
political subdivision thereof for the disposal of garbage
and refuse, and the person is authorized to use the
property for this purpose; or
(2) Into a litter receptacle in a manner that the litter will be
prevented from being carried away or deposited by the
elements upon any part of the private or public property
or waters.
N.C. Gen. Stat. § 14-399(a) (2015) (emphasis added); N.C. Gen. Stat. § 14-399(e)
(defining a violation of section 14-399(a) in an amount exceeding 500 pounds and/or
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for a commercial purpose as a felony); N.C. Gen. Stat. § 14-399(h) (authorizing a
court to award damages to a party injured by a felonious violation of section 14-
399(a)).
Under the statute, “litter” means “garbage, rubbish, trash, refuse, . . . or
discarded material in any form resulting from . . . commercial . . . operations,”
N.C. Gen. Stat. § 14-399(i)(4). “Commercial purposes” refers to litter discarded by an
entity, or its employees, “conducting business for economic gain.”
N.C. Gen. Stat. § 14-399(i)(2a).
The trial court dismissed Plaintiff’s claim brought under this statute because
it concluded, as a matter of law, that the car wash drain into which the Employee
cleaned out his vehicle was “a litter receptacle of some sort.” We agree.
Here, Plaintiff’s complaint alleged that the Employee “dumped the contents of
a one thousand gallon off-road diesel holding tank in Plaintiff’s car wash drain
system,” that the amount dumped exceeded 500 pounds and was dumped for
commercial purposes, and that Plaintiff sustained injuries as a result. While its claim
thoroughly tracks the statutory scheme for pleading a claim under
N.C. Gen. Stat. § 14-399 and presents all facts necessary for a claim thereunder, its
claim also discloses facts that necessarily defeat it.
Specifically, we conclude that Plaintiff’s car wash drain system qualifies as a
“litter receptacle” as contemplated by N.C. Gen. Stat. § 14-399(a). We note that the
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term “litter receptacle” is not defined within Section 14-399, or another neighboring
statute.1 However, we have previously stated that our General Assembly intended to
encompass a “broad range of containment vessels” by using the word “receptacle.”2
State v. Hinkle, 189 N.C. App. 762, 767, 659 S.E.2d 34, 37 (2008). And, as a private
dumpster holds litter in a contained location for some time until it can be removed,
so too a car wash’s drainage system collects and stores waste cleaned from its
customers’ vehicles until it can be removed at a later date. See id.
Plaintiff attempts to distinguish this case from Hinkle because the latter was
decided in a criminal context.3 However, we hold that the General Assembly intended
for the term “receptacle” as used in N.C. Gen. Stat. § 14-399 to have the same
1 Littering statutes in other states codify “litter receptacle,” e.g., (1) Virginia: “ ‘Litter
receptacle’ means containers acceptable to the Department for the depositing of litter.” Va. Code Ann.
§ 10.1-1414 (2017); (2) Ohio: “ ‘Litter receptacle’ means a dumpster, trash can, trash bin, garbage can,
or similar container in which litter is deposited for removal.” Ohio Rev. Code. Ann. § 3767.32.(D)(3)
(2016); (3) Rhode Island: “ ‘Litter receptacle’ means those containers adopted by the department of
environmental management and which may be standardized as to size, shape, capacity, and . . . , as
well as any other receptacles suitable for the depositing of litter.” R.I. Gen. L. § 37-15-3(6) (2014).
While these definitions are in no way binding on this Court, we find them persuasive here.
2 Our review of the case law reveals only two additional cases referencing the definition of
“litter receptacle” under North Carolina law: State v. Rankin, ___ N.C. App. ___, ___, 809 S.E.2d 358
(2018) and State v. Mather, 221 N.C. App. 593, 728 S.E.2d 430 (2012). Each of these cases discusses
Hinkle’s definition of “litter receptacle” only insofar as it is used to understand what language
constitutes the definition of a crime, and offers no guidance on what is considered a “litter receptacle.”
Rankin, ___ N.C. App. at ___, 809 S.E.2d at 362-63; Mather, 221 N.C. App. at 601, 728 S.E.2d at 435.
3 Plaintiff appears to take issue with the possibility that the ultimate holding in Hinkle be
applied to this case. The Hinkle Court found that the prosecution had failed to prove its case-in-chief
because it did not present evidence showing that the private dumpster was not a litter receptacle, or
otherwise a litter receptacle presenting a risk of overflow into property or waters. Hinkle, 189 N.C.
App. at 769, 659 S.E.2d at 38. We do not hold here that it was necessary for Plaintiffs to plead that
the car wash drain did not fall into a category described by N.C. Gen. Stat. § 14-399(a)(2), as this would
improperly raise the notice pleading standard. Rather, we simply hold that the car wash drain is a
“litter receptacle.”
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meaning whether the statute was being applied in a criminal context or a civil
context.4
2. Trespass
We hold that Plaintiff’s complaint does properly state a claim for trespass. A
claim for trespass to property requires three elements: “(1) possession of the property
by plaintiff when the alleged trespass was committed; (2) an unauthorized entry by
defendant; and (3) damage to plaintiff.” Fordham v. Eason, 351 N.C. 151, 153, 521
S.E.2d 701, 703 (1999).
The design and use of a property can implicitly authorize an individual’s
presence as a lawful visitor, but an authorized presence may become unauthorized if
the individual’s conduct exceeds the scope of his or her invitation. Smith v.
VonCannon, 283 N.C. 656, 660, 197 S.E.2d 524, 528 (1973) (“One who enters upon
the land of another with the consent of the possessor may, by his subsequent wrongful
act in excess or abuse of his authority to enter, become liable in damages as a
trespasser.”).
4 We note that Plaintiff’s complaint alleges that Defendant’s actions were “a violation of the
Oil Pollution and Hazardous Substance Control Act.” N.C. Gen. Stat. § 143-21A (2015). Plaintiff
argues this point more thoroughly in its reply brief on appeal. However, Plaintiff’s claims for relief
and jury demand in its complaint refer only to N.C. Gen. Stat. § 14-399, trespass to property, and
negligence. It may be that Defendant’s actions constitute liability under N.C. Gen. Stat. § 143-21A,
but that issue is not properly before us on appeal. Parrish v. Bryant, 237 N.C. 256, 260, 74 S.E.2d 726,
729 (1953) (“[T]he law does not permit parties to swap horses between courts in order to get a better
mount [on appeal][.]”); see State v. Forte, 360 N.C. 427, 438, 629 S.E.2d 137, 145 (2006).
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Plaintiff does not dispute that Defendant’s entry onto Plaintiff’s property was
authorized. Indeed, Plaintiff operates a car wash business that is open to the public
and invites the public to use its facilities. Plaintiff, however, contends that
Defendant’s presence became a trespass when the Employee allegedly intentionally
dumped hundreds of pounds of diesel fuel, a hazardous material, into the car wash
drain. Though Plaintiff’s car wash drain is a litter receptacle designed to accept
refuse and Defendant, (through the Employee) is a customer contemplated by
Plaintiff’s business, a jury could determine that Plaintiff’s invitation to use its
facilities to clean vehicles did not extend to an invitation to dump a large quantity of
hazardous materials on its property. Therefore, we conclude that Plaintiff has stated
a claim for trespass.
3. Negligence
Plaintiff also pleads that Employee acted negligently in dumping the diesel
fuel, resulting in damage to Plaintiff’s property. Where an individual acts without
the intent to cause harm to property, but actually and proximately causes harm by
breaching his or her legal duty of care, the individual may be liable for negligence.
Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013).
Here, Plaintiff alleged essentially that the Employee had a duty of care in its
use of Plaintiff’s property and that the Employee caused damage to the car wash
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drain by failing to adhere to that duty. We conclude that the allegations in the
Complaint are sufficient to state a claim for negligence.
III. Conclusion
We hold that Plaintiff’s complaint failed to allege facts that constitute littering
under N.C. Gen. Stat. § 14-399. We further hold that Plaintiff sufficiently pleaded
facts to sustain its claims for trespass and for negligence. We, therefore, affirm the
trial court’s dismissal of Plaintiff’s claim for damage under N.C. Gen. Stat. § 14-399,
and reverse its dismissal of Plaintiff’s claims for trespass and negligence. We remand
for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Chief Judge MCGEE and Judge TYSON concur.
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