Knotts-Thomas v. City of Sanford , 142 N.C. App. 91 ( 2001 )

HUDSON, Judge,

concurring in part and dissenting in part.

I concur with the majority’s analysis of issues I and II. However, I believe that plaintiffs were entitled to notice of the hearing on the motion to dismiss, pursuant to Rules 12(b) and 6(d). See N.C.R. Civ. P. 12(b) and 6(d). Accordingly, I would reverse the trial court’s order and remand for a hearing on the motion to dismiss.

Defendant’s motion to dismiss was filed on 3 August 1999, and served on plaintiffs’ counsel by hand on 4 August 1999, the day on which a hearing had been scheduled to address plaintiffs’ request for a preliminary injunction. At the appointed time, the parties appeared for the scheduled hearing. Plaintiffs’ counsel participated in the hearing and discussed the issues of res judicata and exhaustion of administrative remedies, but such participation and discussion occurred only within the context of addressing the preliminary injunction.

After hearing from the parties on the request for injunction, the court shifted the discussion to defendant’s motion to dismiss. At that time, plaintiffs’ counsel immediately pointed out that notice had not been properly given for a motion to dismiss or for a motion for summary judgment, pursuant to Rule 12(b). The comments of plaintiffs’ counsel quoted by the majority were, in my view, sufficient to communicate an objection to the lack of notice. Despite counsel’s contention that notice had not been properly given, the court proceeded to enter two orders: one denying the request for preliminary injunction, and one allowing the motion to dismiss. Unlike the plaintiff in Raintree Corp. v. Rowe, 38 N.C. App. 664, 248 S.E.2d 904 (1978), a case cited by the majority, plaintiffs in the instant case did not stipulate to any documents, and were not given an opportunity to argue the merits of the motion to dismiss.

In my view, the circumstances in the case at bar constitute a violation of the specific terms of Rules 12(b) and 6(d), both of which are cited in plaintiffs’ third assignment of error, and in Argument III of plaintiffs’ brief. First, Rule 12(b) states, in pertinent part:

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

N.C.R. Civ. R 12(b). The motion in the instant case was filed with numerous attachments, including affidavits and other documents which were outside of the pleading and which were not excluded by the court. Rule 12(b) requires that such a motion be treated as a motion for summary judgment. See, e.g., Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

This Court has consistently held that “Rule 12(b) clearly contemplates the case where a party is ‘surprised’ by the treatment of a Rule 12(b)(6) motion as one for summary judgment,” and that, in such cases, Rule 12(b) “affords such a party a reasonable opportunity to oppose the motion with . . . materials made pertinent to such a motion.” Locus v. Fayetteville State University, 102 N.C. App. 522, 528, 402 S.E.2d 862, 866 (1991); see also Raintree Homeowners Assoc, v. Raintree Corp., 62 N.C. App. 668, 673, 303 S.E.2d 579, 582, disc. review denied, 309 N.C. 462, 307 S.E.2d 366 (1983) (“It is significant that the rule provides a ‘reasonable opportunity’ rather than requiring that the presentation of materials be in accordance with Rule 56.”). Plaintiffs were essentially deprived of an opportunity to address the merits of defendant’s motion. Therefore, I believe we should remand so that plaintiffs have a “reasonable opportunity to present all material made pertinent” to the motion.

Furthermore, even if it were not necessary to treat the motion to dismiss as a motion for summary judgment pursuant to Rule 12(b), the lack of notice in the instant case would still violate Rule 6(d), which requires that “[a] written motion . . . and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” N.C.R. Civ. P. 6(d). Here, the motion to dismiss was served on the same day as the hearing to address the motion, and there is nothing in the record to indicate that a different notice period was “fixed ... by order of the court.” Rather, it appears from the transcript that plaintiffs’ counsel had no notice that the motion to dismiss would be addressed on that day. The majority states that the Order, which was entered 21 October 1999 — more than two months after the date of the hearing — “fixed” a different notice period. I do not believe that the Rule contemplates that the notice period may be shortened by an order entered after the fact. Such an interpretation would conflict with the very definition of the word “notice” by allowing a dismissal on the merits where the non-moving party has, in fact, no meaningful notice at all.

By conducting a hearing on defendant’s motion to dismiss on the same day that the motion was served on plaintiffs’ counsel, the court deprived plaintiffs of the opportunity to produce materials relevant to the motion, and to defend against the motion. The notice requirements in Rules 12(b) and 6(d) are mandatory and should not be ignored, especially where, as in the instance case, the impact of ignoring the requirements is dispositive. I would reverse and remand to allow plaintiffs an opportunity to respond to defendant’s motion to dismiss.