               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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