               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1308

                                Filed: 18 July 2017

Buncombe County, No. 15 CVS 2009

ASHEVILLE LAKEVIEW PROPERTIES, LLC PETER PINHOLSTER, JR., et al.,
Plaintiffs,

            v.

LAKE VIEW PARK COMMISSION, INC., ROBERT H. FARBREY, et al.,
Defendants.


      Appeal by plaintiffs from orders entered 1 and 17 July 2015 by Judge Marvin

P. Pope, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 9

August 2016.


      Ward and Smith, P.A., by Grant B. Osborne and Alexander C. Dale, for
      plaintiff-appellants.

      Deutsch & Gottschalk, P.A., by Tikkun A.S. Gottschalk and Robert J. Deutsch,
      for defendant-appellees.


      BRYANT, Judge.


      Where plaintiffs’ underlying claims are barred by statutes of limitations, the

Declaratory Judgments Act will not allow relief, and therefore, we affirm the trial

court order granting defendants’ motion to dismiss pursuant to Rule 12(b)(6).

      On 28 May 2015, plaintiffs Asheville Lakeview Properties, LLC; Peter

Pinholster, Jr.; Jennifer Pinholster; and John K. Mascari filed a complaint in

Buncombe County Superior Court against defendants Lake View Park Commission,
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                                  Opinion of the Court



Inc. (the Commission); Robert H. Fabrey and Anne Robinson, as the 1996

Commissioners     of   the   Commission    (collectively,   the   “1996   Commissioner

defendants”); and Mike Nery, Barbara Hart, Gary Ross, Kevin Saum, and Keith

Pandres (all of whom are collectively referenced as the “defendants”) seeking an order

canceling a 1996 deed, a declaratory judgment against the levy of assessments, a

declaratory judgment against compelled membership in the Commission for Lake

View Park lot owners, and a declaratory judgment directing that monetary

assessments be held in a constructive trust in favor of the lot owners.

                                 Allegations of Complaint

      The complaint describes Lake View Park as a residential subdivision

surrounding a lake (Beaver Lake) in Asheville. The lots which plaintiffs now own

were described in a deed filed with the Register of Deeds in the Buncombe County

Registry in 1938. That deed contains express covenants obligating each property

owner to pay the Park Commission1 an assessment for preservation, improvement,

and repair of the public areas—sidewalks, parkways, public streets, and driveways—

and establishing that the lot owners would annually elect three commissioners to

administer the public property and a treasurer to disburse funds as directed. In 1942,

a deed was filed conveying Beaver Lake and certain adjacent real property (the “trust

property”) to the Park Commission and directed that those elected members of the


      1 The “Park Commission” is the predecessor to “the Commission”—Lake View Park
Commission, Inc.—which was formed in 1983.

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Park Commission and their successors hold the deeded property “in trust to be used

for park purposes for the benefit of the owners of lots in the Lake View Park

Subdivision.” Then, in 1983, articles of incorporation were filed with the North

Carolina Secretary of State for the Commission.

                [T]he Commission is formed . . . to enhance and to preserve
                the beauty and quality of the Lake View Park Subdivision
                . . . . All areas located in the geographical section of
                Buncombe County known as Lake View Park . . . shall be
                deemed the geographical area within which the
                Commission shall exercise its authority.

      Pursuant to the articles of incorporation, the Commission was empowered to

“perform all of the duties as set forth in the Lake View Park deeds” as well as “[f]ix,

levy and collect property assessments.” The articles further provided that “ ‘[a]ll

property owners of Lake View Park shall be members’ of the [Commission].” In 1996,

a deed was filed with the Buncombe County Register by the 1996 Commissioner

defendants and three others [E.H. Lederer, John F. Barber, M.D., and John M.

Johnston].2 “The express purpose of the 1996 Deed was ‘to transfer all real estate of

the previously unincorporated Lake View Park Commission’ to [the newly

incorporated Commission], which ‘real estate’ encompasses all of the Trust

Property.”3




      2   Lederer, Barber, and Johnston are now deceased (and not parties to this action).

      3   The trust property consists of Beaver Lake and adjacent property.

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      Posted on the Commission’s website, on 20 October 2014, was a plan to assert

possession of the trust property that lies adjacent to plaintiffs’ properties to construct

a “south trail” to run between plaintiffs’ property lots and the lake. In their action

for declaratory judgment, plaintiffs alleged the Commission has no authority to levy

assessments against property owners or to build and maintain a trail on the trust

property, because the Commission does not hold lawful title to the property.

Plaintiffs sought equitable relief in the form of invalidating the 1996 deed.

      Plaintiffs allege that neither the 1938 deed nor 1942 deed authorized the

Commissioners to convey title of the deeded trust property of Lake View Park, assign

the right to collect assessments from Lake View Park lot owners, or to increase the

assessments to more than “ten cents per front foot of lot [(as set out in the 1938

deed)].”

      On 5 June 2015, the Commission moved to dismiss the complaint pursuant to

Rule 12(b)(6) asserting statute of limitations defenses. The Commission asserted its

possession of Lake View Park has been “actual, open, hostile, exclusive, and

continuous” since at least 1996, if not 1983. In its 12(b)(6) motion to dismiss, the

Commission also noted “[p]laintiffs admit that [the Commission] was formed on

December 15, 1983, and recite portions of [the Commission’s] Articles of Incorporation

showing that [the Commission] has ‘exercised its authority’ over Lake View Park

since 1983.”



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                                   Opinion of the Court



      Following a hearing in Buncombe County Superior Court before the Honorable

Marvin P. Pope, Jr., Judge presiding, Judge Pope entered an order on 1 July 2015

granting defendants’ motion to dismiss “as to every claim for relief set forth in the

complaint.”     Plaintiffs filed a motion for relief pursuant to Rule 60(b)(6), or

alternatively, a motion for reconsideration. The motion was denied by order entered

17 July 2015.

      Plaintiffs appeal from the orders entered 1 and 17 July 2015, dismissing

plaintiffs’ claim and denying plaintiffs’ Rule 60(b) motion and alternative motion for

reconsideration.

                    __________________________________________

      On appeal, plaintiffs’ primary argument is that the trial court erred by

granting defendants’ 12(b)(6) motion to dismiss. We disagree. Plaintiffs challenge

the ruling that their complaint was barred by the statute of limitations and further

assert the trial court erred by denying plaintiffs’ motion for 60(b) relief or alternative

motion for reconsideration.

                                        Analysis

      Plaintiffs argue that the trial court erred by granting defendants’ Rule 12(b)(6)

motion to dismiss the complaint.

                     The motion to dismiss under N.C. R. Civ. P. 12(b)(6)
              tests the legal sufficiency of the complaint. In ruling on the
              motion, the allegations of the complaint must be viewed as
              admitted, and on that basis the court must determine as a


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             matter of law whether the allegations state a claim for
             which relief may be granted.

Kohn v. Firsthealth Moore Reg’l Hosp., 229 N.C. App. 19, 21, 747 S.E.2d 395, 397

(2013) (quoting Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979)).

             It is well-settled that a plaintiff's claim is properly
             dismissed under Rule 12(b)(6) when one of the following
             three conditions is satisfied: (1) the complaint on its face
             reveals that no law supports the claim; (2) the complaint
             on its face reveals the absence of facts sufficient to make a
             valid claim; or (3) the complaint discloses some fact that
             necessarily defeats the claim.

Grich v. Mantelco, LLC, 228 N.C. App. 587, 589, 746 S.E.2d 316, 318 (2013) (citation

omitted). This Court reviews a trial court’s ruling on a motion for Rule 12(b)(6) de

novo. Id. “Where a trial court has reached the correct result, the judgment will not

be disturbed on appeal even where a different reason is assigned to the decision.”

Eways v. Governor’s Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990).

                    The statute of limitations may be raised as a defense
             by a Rule 12(b)(6) motion to dismiss if it appears on the face
             of the complaint that such a statute bars the plaintiff’s
             action. It is well-established that once a defendant raises
             the affirmative defense of the statute of limitations, the
             burden shifts to the plaintiffs to show their action was filed
             within the prescribed period.

Laster v. Francis, 199 N.C. App. 572, 576, 681 S.E.2d 858, 861 (2009) (citations

omitted).

      Plaintiffs brought forth five substantive claims, four of which seek equitable

relief pursuant to declaratory judgment.


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                                Declaratory Judgment

      “The purpose of the Declaratory Judgments Act is, to settle and afford relief

from uncertainty and insecurity, with respect to rights, status, and other legal

relations . . . . It is to be liberally construed and administered.” York v. Newman, 2

N.C. App. 484, 489, 163 S.E.2d 282, 286 (1968) (citations omitted).            Article 26

(“Declaratory Judgments”), codified within Chapter 1, Subchapter VIII, of our

General Statutes, authorizes

             [a]ny person interested as or through an . . . administrator,
             trustee . . . or cestui que trust, in the administration of a
             trust . . . may have a declaration of rights or legal relations
             in respect thereto:

             ....

             (2) To direct the . . . administrators, or trustees to do or
             abstain from doing any particular act in their fiduciary
             capacity . . . .

N.C. Gen. Stat. § 1-255 (2015). “[A] declaratory judgment should issue (1) when [it]

will serve a useful purpose in clarifying and settling the legal relations at issue, and

(2) when it will terminate and afford relief from the uncertainty, insecurity and

controversy giving rise to the proceeding.” Goldston v. State, 361 N.C. 26, 33, 637

S.E.2d 876, 881 (2006) (quoting Augur v. Augur, 356 N.C. 582, 588, 573 S.E.2d 125,

130 (2002) (citing N.C.G.S. § 1–257 (2005))). However, “if the statute of limitations

was properly applied to plaintiff’s underlying claims, no relief can be afforded under




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the Declaratory Judgment[s] Act.” Ludlum v. State, 227 N.C. App. 92, 94, 742 S.E.2d

580, 582 (2013).

       Plaintiffs’ first claim challenges the authority of the grantors of the 1996 deed

to convey the Beaver Lake Trust to the Commission. The second claim challenges the

authority of the Commission to levy assessments on the Lake View Park lot owners

and the 1996 deed’s assignment of the right to assess a levy to the Commission.

Plaintiffs’ third claim challenges the Commission’s assertion (per its Articles of

Incorporation) that all Lake View Park owners are members of the Commission and,

thus, are subject to its Articles of Incorporation. The fourth claim seeks to impose a

constructive trust upon the assessments levied upon the Lake View Park lot owners

and retained by the Commission.4

       Plaintiffs’ first claim challenging the 1996 conveyance of the trust property to

the Commission must fail. Taking plaintiffs’ claims as true and assuming there is

any defect in the title to the trust property, property that the Commission has

maintained pursuant to the deed since at least 1996, plaintiffs’ claims are barred by

the statute of limitations. See N.C. Gen. Stat. § 1–38 (imposing a seven-year statute




       4  Plaintiffs’ five claims specifically sought (1) equitable cancellation of 1996 Deed of Trust
property (action at law for declaratory judgment as to ownership of trust property); (2) declaratory
judgment as to assessments; (3) declaratory judgment as to Company membership; (4) declaratory
judgment as to establishment of a constructive trust in favor of plaintiffs and lot owners in Lake View
Park as to assessments; and (5) negligent misrepresentation by company (a violation of the Unfair and
Deceptive Trade Practices Act).

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                                   Opinion of the Court



of limitations barring claims for possession of real property against a possessor

holding title); see also Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365 (1941).

      Plaintiffs’ second and third claims are each rooted in a challenge to the

authority of the Commission to act as the administrative commission for Lake View

Park, a function the Commission has performed and Lake View Park lot owners have

apparently relied upon since at least 1996.

      Per the complaint, the Commission filed articles of incorporation with the

Secretary of State in 1983 providing that the Commission was empowered to

“[e]xercise all of the powers and privileges and to perform all of the duties as set forth

in the Lake View Park deeds with Covenants and Restrictions . . . [as well as] ‘[f]ix,

levy and collect property assessment in accordance of the provisions of the

Covenants.’ ” While plaintiffs assert the Commission acted without authority by

increasing the amount of the assessment imposed “per front foot” of each lot from the

$0.15 rate established in 1938 to the current rate of $1.20 in 2011, plaintiffs’

complaint contains facts showing that plaintiffs authorized the very actions about

which they complain. Assuming plaintiffs had asserted an actionable claim, they

would nevertheless be barred by a three year or six year statute of limitations.

      Plaintiffs’ fourth claim seeking a constructive trust also implies the existence

of an express trust. The complaint sets out that the public property (trust property)

of Lake View Park was to be administered by Lake View Park Commissioners, elected



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by the lot owners of Lake View Park, in trust for the benefit of Lake View Park lot

owners.

                     A determination of which type of trust plaintiffs
              have asserted would usually be paramount to the inquiry
              of whether the statute of limitations barred plaintiffs’
              action since claims involving express trusts are governed
              by a three-year statute of limitations, and resulting and
              constructive trusts are governed by a ten-year statute of
              limitations. See N.C. Gen. Stat. §§ 1-52, -56 (2005).
              Moreover, where there is an express trust, the statute of
              limitations does not begin to run until a repudiation or
              disavowal of the trust occurs, while in instances of a
              resulting or constructive trust, the statute runs from the
              time the tortious or wrongful act is committed.

Laster, 199 N.C. App. at 576, 681 S.E.2d at 861 (citations omitted). “[O]ur Supreme

Court held that ‘[w]hen a trustee by devise disposes of trust property in fee simple,

free from and in contradiction of the terms of the trust, this is a repudiation or

disavowal of the trust.’ ” Id. at 578, 681 S.E.2d at 862 (quoting Sandlin v. Weaver,

240 N.C. 703, 709, 83 S.E.2d 806, 810 (1954)). But regardless of the type of trust,

plaintiffs’ claims in the instant case would be barred.

      Taking the allegations of the complaint as true, the Commission repudiated

the terms of the Lake View Park trust by transferring the trust corpus to the

Commission in 1996. If plaintiffs contend this is a violation of the terms of the trust,

the purported transfer of the unencumbered trust corpus would be a repudiation or

disavowal of the trust. Id. Such an act would commence the running of the applicable

statute of limitations beginning in 1996. As the statute of limitations to bring a claim


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                                   Opinion of the Court



for violation of an express trust is three years, plaintiffs’ claim is barred. Id. at 576,

681 S.E.2d at 861. Plaintiffs also contend the Commission’s conduct entitled them to

imposition of a constructive trust (by collecting assessments and periodically

increasing the assessment rate). The statute of limitations applicable to constructive

trusts is ten years, and “the statute runs from the time the tortious or wrongful act

is committed.” Id. at 576, 681 S.E.2d at 861. Here, plaintiffs filed their complaint on

28 May 2015, almost twenty years after the 1996 deed was filed, the wrongful act of

which they complain, and nearly thirty years from the initial assessment rate

increase that occurred in 1985.       Therefore, the trial court properly dismissed

plaintiffs’ claims seeking declaratory relief, including a constructive trust.

      As for plaintiffs’ final claim seeking relief on the grounds of negligent

misrepresentation and violation of the Unfair and Deceptive Trade Practices Act,

plaintiffs again challenge the authority of the Commission to impose monetary

assessments per lot, expend the collected assessments on trust property, develop the

southern trail between plaintiffs’ respective lots and Beaver Lake, and generally

exercise dominion and control over the trust property—administrative duties in

which the Commission has been engaged since at least 1996.

      “The statute of limitations applicable to negligent misrepresentation claims is

three years. See N.C. Gen. Stat. § 1-52(5)[.]” Guyton v. FM Lending Servs., Inc., 199

N.C. App. 30, 35, 681 S.E.2d 465, 470 (2009) (citation omitted). A four-year statute



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of limitations is applied to claims for unfair and deceptive trade practices. See Page

v. Lexington Ins. Co., 177 N.C. App. 246, 251, 628 S.E.2d 427, 430 (2006) (reasoning

“the UDTP claim [was] . . . governed by the four-year statute of limitations”).

Therefore, given the time frames at issue here, the trial court properly dismissed

plaintiffs’ claims for negligent misrepresentation and unfair and deceptive trade

practices. Accordingly, we affirm the trial court’s order granting defendants Rule

12(b)(6) motion to dismiss all claims in plaintiffs’ complaint.5

        Having affirmed the trial court order dismissing plaintiffs’ complaint, and for

the reasons stated herein as to why we affirmed the trial court order, we likewise

affirm the trial court order denying plaintiffs’ Rule 60(b) motion or alternative motion

for reconsideration.

        AFFIRMED.

        Judge INMAN concurs.

        Judge TYSON dissents by separate opinion.




        5  The dissent takes the position that the trial court’s ruling should have been converted to one
for summary judgment, and cites to notes taken by the trial court at the Rule 12(b)(6) hearing as proof
the trial court considered matters outside the pleadings. However, where the order dismissing all
claims was based on the fact that all claims were barred by statutes of limitations, the complaint on
its face discloses facts that defeat all claims. Thus, the position taken by the dissent is to no avail. On
this record, notwithstanding “notes” made by the trial court, the clear basis for the trial court’s ruling
was the failure of the complaint to “state” a claim where all claims were barred by statutes of
limitations. See Page, 177 N.C. App. at 248, 628 S.E.2d at 428 (“On appeal of a 12(b)(6) motion to
dismiss for failure to state a claim, our Court conduct[s] a de novo review of the pleadings to determine
their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was
correct.” (alteration in original) (citation omitted)).

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      TYSON, Judge, dissenting.


      The record clearly indicates the trial court’s consideration of matters outside

the face of the complaint converted Defendants’ Rule 12(b)(6) motion to dismiss to a

motion for summary judgment, and that Plaintiffs were not afforded a “reasonable

opportunity to present all material made pertinent to such a motion by Rule 56.” N.C.

Gen. Stat. § 1A-1, Rule 12(b) (2015). I vote to reverse the trial court’s order and

remand and respectfully dissent.

                                   I. Relevant Facts

      On 28 May 2015, Plaintiffs filed their complaint in Buncombe County Superior

Court. Approximately a week later, on 5 June 2015, Defendants filed a Rule 12(b)(6)

motion to dismiss, which asserted Plaintiffs’ claims were barred by the statute of

limitations. On 9 June 2015, Plaintiffs filed a motion for preliminary injunction to

enjoin Defendants from “trespassing on Plaintiffs’ properties, from removing or

tampering with certain fences . . . , and from proceeding with construction of a

walking trail[.]”

      On 24 June 2015, Defendants served Plaintiffs with a memorandum of law in

support of Defendants’ motion to dismiss and in opposition to Plaintiffs’ motion for a

preliminary injunction.     Defendants’ memorandum included several attached

affidavits and exhibits. In response, Plaintiffs submitted a memorandum of law in

opposition to Defendants’ Rule 12(b)(6) motion to dismiss. Plaintiffs’ memorandum

specifically states the trial court’s standard under Rule 12(b)(6) and asserted
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                                  TYSON, J., dissenting



Defendants’ arguments were not supported by a review limited to the face of the

complaint.

      Plaintiffs also served Defendants with a written objection to consideration of

evidence on Defendants’ Rule 12(b)(6) motion to dismiss on 26 June 2015 and formally

filed the motion on 1 July 2015.       Plaintiffs asserted the affidavits and exhibits

submitted in support of Defendants’ motion to dismiss constituted matters outside

the face of the complaint and should be disregarded by the court in its consideration

of Defendants’ Rule 12(b)(6) motion.

      Plaintiffs further specifically: (1) noted they had not submitted any additional

evidence in response to Defendants’ motion; (2) objected to the trial court’s

consideration of the evidence presented by Defendants; and (3) objected to the

conversion of Defendants’ motion to dismiss into a motion for summary judgment.

      The trial court considered Defendants’ Rule 12(b)(6) motion to dismiss at a

hearing on 29 June 2015. At the hearing, Plaintiffs consistently reiterated, under

Rule 12(b)(6), the court was to look solely at the legal sufficiency of the complaint and

stated, “[a] lot of what we have heard already will be very appropriate for

consideration under summary judgment when that day comes. This is not that day.”

After hearing the arguments, the trial court orally granted Defendants’ Rule 12(b)(6)

motion to dismiss and a written order was entered on 1 July 2015.




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                                  TYSON, J., dissenting



      Prior to signing and entering the order on 1 July 2015, the trial judge met with

the parties’ counsel in his chambers to discuss the form and content of the order of

dismissal. Both parties acknowledge this meeting occurred and at some point the

judge shared a copy of his notes upon which he based his decision (“Rule 12(b)(6)

Memo”). The Rule 12(b)(6) Memo is included in the record on appeal and begins by

stating: “Basis for Rule 12(b)(6) ruling on June 29, 2015; taking the allegations in the

Complaint in light most favorable to the moving party[.] (emphasis supplied). The

Rule 12(b)(6) Memo then outlines the judge’s understanding of some of the basic facts

of the case, including information and facts not alleged in the complaint.

      On 10 July 2015, Plaintiffs filed a motion for relief from the trial court’s order

pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6), and, in the alternative, a motion

for reconsideration.    Plaintiffs again asserted the trial court had improperly

considered matters outside the face of the complaint and that Defendants’ motion to

dismiss should have been denied under the proper standard of review applicable to

Rule 12(b)(6). The trial court denied Plaintiffs’ motion on 17 July 2015. Plaintiff

appeals.

                         II. Rule 12(b)(6) Standard of Review

      “A motion to dismiss under Rule 12(b)(6) is an appropriate method of

determining whether the statutes of limitation bar plaintiff’s claims if the bar is

disclosed in the complaint.” Carlisle v. Keith, 169 N.C. App. 674, 681, 614 S.E.2d 542,



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                                    TYSON, J., dissenting



547 (2005) (emphasis supplied) (citing Horton v. Carolina Medicorp, 344 N.C. 133,

136, 472 S.E.2d 778, 780 (1996)).

       “A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.” Kemp v.

Spivey, 166 N.C. App. 456, 461, 602 S.E.2d 686, 690 (2004) (citation and quotation

marks omitted). “When considering a 12(b)(6) motion to dismiss, the trial court need

only look to the face of the complaint to determine whether it reveals an

insurmountable bar to plaintiff’s recovery.” Carlisle, 169 N.C. App. at 681, 614 S.E.2d

at 547 (citation and quotation marks omitted).

       “On appeal from a motion to dismiss under Rule 12(b)(6), this Court reviews

de novo whether, as a matter of law, the allegations of the complaint . . . are sufficient

to state a claim upon which relief may be granted[.]” Christmas v. Cabarrus Cty., 192

N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (citation and internal quotation marks

omitted), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009). This Court

“consider[s] the allegations in the complaint true, construe[s] the complaint liberally,

and only reverse[s] the trial court’s denial of a motion to dismiss if plaintiff is entitled

to no relief under any set of facts which could be proven in support of the claim.” Id.

       However, Rule 12(b) further provides:

              If, on a motion asserting the defense numbered (6), to
              dismiss for failure of the pleading to state a claim upon
              which relief can be granted, matters outside the pleading
              are presented to and not excluded by the court, the motion
              shall be treated as one for summary judgment and disposed
              of as provided in Rule 56, and all parties shall be given


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                                  TYSON, J., dissenting



             reasonable opportunity to present all material made
             pertinent to such a motion by Rule 56.

N.C. Gen. Stat. § 1A-1, Rule 12(b) (emphasis supplied); see Snyder v. Freeman, 300

N.C. 204, 208, 266 S.E.2d 593, 596 (1980) (agreeing the trial court’s “dismissal on the

ground of the statute of limitations was, in effect, the entry of summary judgment

inasmuch as matters outside the pleadings must have been considered by [the

court]”); Williams v. Advanced Auto Parts, Inc., ___ N.C. App. ___, ___, 795 S.E.2d

647, 651 (“[A] Rule 12(b)(6) motion to dismiss for failure to state a claim is indeed

converted to a Rule 56 motion for summary judgment when matters outside the

pleadings are presented to and not excluded by the court.”), disc. review denied, __

N.C. __, 799 S.E.2d 45 (2017).

      “[T]he trial court [is] not required to convert a motion to dismiss into one for

summary judgment simply because additional documents [are] submitted[.]” Pinney

v. State Farm Mut. Ins. Co., 146 N.C. App. 248, 252, 552 S.E.2d 186, 189 (2001), disc.

review denied, 356 N.C. 438, 572 S.E.2d 788 (2002); see Privette v. University of North

Carolina, 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989). Where the record clearly

indicates the trial court did not consider the additional documents, this Court reviews

the trial court’s decision under Rule 12(b)(6). Pinney, 146 N.C. App. at 252, 552 S.E.2d

at 189.

      On the other hand, as here, where the record clearly demonstrates the trial

court considered and did not exclude the additional documents, the Rule 12(b)(6)


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motion is converted to a motion for summary judgment and the opposing party must

be “afforded a reasonable opportunity to present all material made pertinent to such

a motion by Rule 56.” Kemp, 166 N.C. App. at 462, 602 S.E.2d at 690 (citation and

internal quotation marks omitted).        If the parties are not afforded such an

opportunity, this Court remands the case “so as to allow the parties full opportunity

for discovery and presentation of all pertinent evidence.” Id.

                III. Rule 56 Summary Judgment Standard of Review

      This Court reviews an order granting summary judgment de novo and views

the evidence in the light most favorable to the nonmoving party. In re Will of Jones,

362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008); Williams v. Habul, 219 N.C. App. 281,

289, 724 S.E.2d 104, 109 (2012). Summary judgment is proper where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule

56(c) (2015); see Draughon v. Harnett Cty. Bd. Of Educ., 158 N.C. App. 208, 212, 580

S.E.2d 732, 735 (2003) aff’d per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004).

                                     IV. Analysis

      While the trial court is not required to convert a Rule 12(b)(6) motion to a

summary judgment motion based solely on the submission of additional documents,

Pinney, 146 N.C. App. at 252, 552 S.E.2d at 189, where the trial court considered and



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                                 TYSON, J., dissenting



did not exclude such documents “the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56[.]” N.C. Gen. Stat. § 1A-1, Rule 12(b)

(emphasis supplied).    The record before us demonstrates the trial court clearly

considered matters outside the complaint, and apparently in the light most favorable

to the moving party, prior to granting Defendants’ motion to dismiss.

      The trial judge’s Rule 12(b)(6) Memo clearly states the information contained

therein was the basis upon which the trial court granted the motion to dismiss. This

memo includes facts and information not found within the four corners of the

complaint. Specifically, the trial judge’s notes 6(b) through 6(h) pertain to fences on

Plaintiffs’ properties. This issue was raised primarily in Plaintiffs’ motion for

preliminary injunction and in the Affidavit of Billy Jenkins filed in support of

Defendants’ motion to dismiss, and not in Plaintiffs’ complaint.

      The trial judge’s Rule 12(b)(6) Memo also suggests the court applied the

inappropriate standard of review. The Rule 12(b)(6) Memo states the court took “the

allegations in the Complaint in light most favorable to the moving party[.]” (emphasis

supplied). When reviewing a motion under Rule 12(b)(6), the trial court looks only at

the allegations in the complaint and takes them as true. Christmas, 192 N.C. App. at

231, 664 S.E.2d at 652. Under summary judgment, the trial court must review the

evidence in the light most favorable to the nonmoving party, here the Plaintiff. See

Williams, 219 N.C. App. at 289, 724 S.E.2d at 109.



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                                  TYSON, J., dissenting



      Even in absence of trial judge’s Rule 12(b)(6) Memo, and unlike in Pinney and

Privette, the record does not clearly indicate that the trial court specifically excluded

the additional affidavits and exhibits Defendants presented in support of their Rule

12(b)(6) motion to dismiss, or that the trial court refused to consider those documents

when granting the motion pursuant to Rule 12(b)(6). See Pinney, 146 N.C. App. at

252, 552 S.E.2d at 189; Privette, 96 N.C. App. at 132, 385 S.E.2d at 189.

      Based upon the trial court’s consideration of matters outside the face and four

corners of the complaint, Defendants’ Rule 12(b)(6) motion was converted to a motion

for summary judgment under Rule 56. See Kemp, 166 N.C. App. at 462, 602 S.E.2d

at 690. Upon conversion of the motion as one for summary judgment, the statute

required that all parties “be given reasonable opportunity to present all material

made pertinent to such a motion by Rule 56.” N.C. Gen. Stat. § 1A-1, Rule 12(b).

      Throughout the proceedings, Plaintiffs correctly and consistently argued and

emphasized that Rule 12(b)(6) requires the trial court to look solely at the allegations

in the complaint. Plaintiffs further noted they had not presented any additional

evidence, which would be allowed if the court were proceeding under a summary

judgment standard. Plaintiffs clearly objected to the consideration of such evidence,

exhibits, and affidavits presented by Defendants. Based upon the record before us,

Plaintiffs were not allowed the required “reasonable opportunity” to present material

pertinent to summary judgment. See N.C. Gen. Stat. § 1A-1, Rule 12(b).



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                                 TYSON, J., dissenting



                                   V. Conclusion

      The trial court improperly considered matters and evidence outside the face of

the complaint and failed to provide Plaintiffs with the statute’s mandatory reasonable

opportunity to present evidence pertinent to a motion for summary judgment. See id.

      I respectfully dissent from the majority’s analysis and ruling to affirm under

Rule 12(b)(6) and vote to reverse and remand to allow both parties full opportunity

for discovery and presentation of all pertinent evidence under Rule 56. See id; N.C.

Gen. Stat. § 1A-1, Rule 56.




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