Boone v. Green

• Court: Court of Appeals of North Carolina
• Decided: August 6, 2025
• Docket: 24-63
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-63

Filed 6 August 2025

Wake County, No. 23 CVS 008762-910

MARK P. BOONE, JOANNE R. BOONE, Plaintiffs,

v.

LISA D. GREEN, AND TERRELL J. GREEN, Defendants.

Appeal by Plaintiffs from order entered 17 August 2023 by Judge Claire V. Hill

in Wake County Superior Court. Heard in the Court of Appeals 11 June 2024.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Attorneys Charles E. Coble and William A. Robertson, for plaintiffs-appellants.

Law Offices of F. Bryan Brice, Jr., by Attorney F. Bryan Brice, Jr., for defendants-appellees.

STADING, Judge.

Mark and Joanne Boone (“Plaintiffs”) appeal from an order granting Lisa and

Terrell Green’s (“Defendants”) motions to dismiss for lack of subject matter

jurisdiction and failure to state a claim. See N.C. Gen. Stat. § 1A-1, Rules 12(b)(1),

(6) (2023). After careful review, we affirm in part, vacate in part, and remand.

I. Background

Plaintiffs have owned the real property located at 4100 Ebenezer Church Road BOONE V. GREEN

Opinion of the Court

since 15 February 1994. Defendants acquired a neighboring property in 2017. Soon

after, Defendants began planning the construction of a single-family residence,

including a driveway.

The planned construction called for the driveway to connect to the centerline

of Ebenezer Church Road. Defendants worked with a professional builder, an

architect, and a surveyor in an effort to comply with municipal regulations. Before

the commencement of the driveway’s construction, the North Carolina Department

of Transportation (the “NCDOT”) “approved Defendants’ encroachment into the

Ebenezer Church Road right-of-way . . . .” (the “right-of-way”). The City of Raleigh

issued a driveway permit to Defendants in February 2021. Construction of the

residence and driveway was completed on 17 March 2022, and Defendants moved

into their residence.

On 17 April 2023, Plaintiffs filed a complaint against Defendants alleging

claims for trespass and nuisance. In their complaint, citing N.C. Gen. Stat. § 160A-

299(c) (2023), Plaintiffs asserted they “acquired title to the centerline of Ebenezer

Church Road upon the closure of Blake’s Mill Road . . . .” Plaintiffs alleged

Defendants trespassed by constructing “a driveway, mailbox, and plac[ing] rip rap”

on the centerline of the right-of-way without Plaintiffs’ permission, causing “actual

damages.” Critical to this appeal, the deed to Plaintiffs’ property provides:

BEGINNING at an existing p. k. nail in the centerline of Ebenezer church Road where it intersects with the centerline of Richland Creek as shown on Exhibit A

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attached hereto, which said p. k. nail is also the southwest corner of Lot 6 of Kent Hundred Subdivision as recorded in Book of Maps 1978, Page 171, Wake County Registry; runs thence from the beginning point as the centerline of Richland creek in an easterly direction (the actual property line is Richland creek) on reference line as follows: North 67 degrees, 06 minutes, 43 seconds East 274.80 feet; South 34 degrees, 21 minutes, 30 seconds East 78.84 feet; thence north 88 degrees, 22 minutes, 20 seconds East 65.42 feet; and North 79 degrees, 30 minutes East 69.05 feet; thence from the centerline of Richland Creek South 02 degrees, 01 minutes, 10 seconds West 644 feet to an existing p. k. nail in the centerline of Ebenezer church Road; thence as the centerline of Ebenezer Church Road North 38 degrees, 07 minutes west, 665 feet to the point and place of BEGINNING. For further reference, see Exhibit A attached hereto and made part hereof. .... Title to the property hereinabove described is subject to the following exceptions: 1) 1994 ad valorem taxes. 2) Easements and restrictions of record in Wake County Registry and also as shown on plat hereinbefore referred to. 3) That portion of the subject property lying within the right- of-way of Ebenezer Church Road and Old Blake’s Mill Road as shown on plat hereinbefore referred to.

Plaintiffs’ complaint alleged Defendants’ driveway failed to comply with the

standards of NCDOT. It also alleged a claim of nuisance since the driveway

“interfered with Plaintiffs’ use and enjoyment of their property . . . .”

Defendants answered, asserted multiple defenses, and moved to dismiss

Plaintiffs’ claims for lack of subject matter jurisdiction and for failure to state a claim.

See N.C. Gen. Stat. § 1A-1, R. 12(b)(1), (6). On 22 August 2023, the trial court entered

an order granting Defendants’ motions and dismissing Plaintiffs’ complaint with

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prejudice. Plaintiffs entered their notice of appeal.

II. Jurisdiction

This Court has jurisdiction over Plaintiffs’ appeal under N.C. Gen. Stat. § 7A-

27(b)(1) (2023) (“From any final judgment of a superior court . . . .”).

III. Analysis

Plaintiffs submit several issues for our consideration: (1) whether the trial

court committed error by granting Defendants’ Rule 12(b)(1) motion to dismiss for

lack of subject matter jurisdiction; (2) whether the trial court committed error by

granting Defendants’ Rule 12(b)(6) motion to dismiss for failure to state a claim; and

(3) whether the trial court abused its discretion by dismissing Plaintiffs’ complaint

with prejudice.

This court “appl[ies] a de novo standard when reviewing either a Rule 12(b)(1)

or 12(b)(6) dismissal . . . .” Holton v. Holton, 258 N.C. App. 408, 414, 813 S.E.2d 649,

654 (2018). “Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” Lynn v. Fannie Mae, 235

N.C. App. 77, 81, 760 S.E.2d 372, 375 (2014) (citation omitted). “In undertaking this

review, the allegations contained in the complaint are presumed to be true, and these

assertions along with the supporting record [are viewed] in the light most favorable

to the non-moving party . . . .” Soc’y for the Hist. Pres. of the Twenty-Sixth N.C.

Troops, Inc. v. City of Asheville, 385 N.C. 744, 748, 898 S.E.2d 760, 763 (2024) (citation

omitted) (brackets in original).

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A. 12(b)(1) – Subject Matter Jurisdiction

Plaintiffs submit the trial court committed error by granting Defendants’ Rule

12(b)(1) motion because omission of an amount in controversy does not support

dismissal and Plaintiffs suffered an injury sufficient to confer standing. The trial

court did not specify a reason for ordering dismissal under Rule 12(b)(1). At trial,

Defendants argued Plaintiffs failed to satisfy the requisite amount in controversy to

bring their claim in the superior court division. They also claimed Plaintiffs lacked

standing.

1. Amount in Controversy

A trial court’s “original general jurisdiction” over civil cases is concurrently

vested “in the superior court division and the district court division as the trial

divisions of the General Court of Justice.” N.C. Gen. Stat. § 7A-240 (2023) (“Original

civil jurisdiction generally”); see also Stanback v. Stanback, 287 N.C. 448, 457, 215

S.E.2d 30, 36–37 (1975). The “proper division” to hear a civil case is based on the

amount in controversy:

[T]he district court division is the proper division for the trial of all civil actions in which the amount in controversy is twenty-five thousand dollars ($25,000) or less; and the superior court division is the proper division for the trial of all civil actions in which the amount in controversy exceeds twenty-five thousand dollars ($25,000).

N.C. Gen. Stat. § 7A-243 (2023). That said, filing in the improper division does not

“deprive the court in which the action is filed of subject-matter jurisdiction” unless

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there is a “statutory provision giving one or the other . . . exclusive jurisdiction over

a particular type of claim . . . .” 4U Homes & Sales, Inc. v. McCoy, 235 N.C. App. 427,

433, 762 S.E.2d 308, 312 (2014) (citation omitted). If a party brings a civil case before

the improper division, the other party may move to transfer the action to the proper

division pursuant to N.C. Gen. Stat. § 7A-258 (2023) or may move for dismissal

pursuant to N.C. Gen. Stat. § 1A-1, R. 12(b)(3), which provides for dismissal for

“[i]mproper venue or division.” Circle J. Farm Ctr., Inc. v. Fulcher, 57 N.C. App. 206,

208, 290 S.E.2d 798, 799 (1982).

Here, Defendants do not argue that there is a statutory provision giving one

division or the other exclusive jurisdiction over the nuisance or trespass claims filed.

Accordingly, even if this action was filed improper division, this did not deprive the

trial court of subject matter jurisdiction. Furthermore, Rule 12(b)(3) is the applicable

basis for the dismissal of cases for improper division. See N.C. Gen. Stat. § 1A-1, R.

12(b)(3) (“Improper venue or division”). A dismissal under Rule 12(b)(3) does not

implicate subject matter jurisdiction. Accordingly, we hold the trial court committed

error to the extent it granted Defendant’s Rule 12(b)(1) motion based on an

insufficient amount in controversy. 4U Homes & Sales, 235 N.C. App. at 433, 762

S.E.2d at 312.

2. Standing

Plaintiffs next contend that the trial court committed error by granting

Defendants’ Rule 12(b)(1) motion since they had standing to bring their trespass and

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nuisance claims.

Standing “means simply that the party has a sufficient stake in an otherwise

justiciable controversy to obtain judicial resolution of that controversy.” Town of

Ayden v. Town of Winterville, 143 N.C. App. 136, 140, 544 S.E.2d 821, 824 (2001)

(citation omitted); Comm. to Elect Forest v. Emps. PAC, 376 N.C. 558, 608, 853 S.E.2d

698, 733 (2021) (citations and quotation marks omitted). “Standing concerns the trial

court’s subject matter jurisdiction and is therefore properly challenged by a Rule

12(b)(1) motion to dismiss.” WLAE, LLC v. Edwards, 257 N.C. App. 251, 258, 809

S.E.2d 176, 181 (2017) (citations omitted); Soc’y for the Hist. Pres. of the Twenty-Sixth

N.C. Troops, 385 N.C. at 748, 898 S.E.2d at 763 (internal citation and quotation

marks omitted). “If a party does not have standing to bring a claim, a court has no

subject matter jurisdiction to hear the claim.” Est. of Apple v. Commercial Courier

Express Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16 (2005). “An appellate court

considering a challenge to a trial court’s decision to grant or deny a motion to dismiss

for lack of subject[-]matter jurisdiction may consider information outside the scope of

the pleadings in addition to the allegations set out in the complaint.” Pugh v.

Howard, 288 N.C. App. 576, 580, 887 S.E.2d 734, 738 (2023) (citation omitted)

(brackets in original); Fuller v. Easley, 145 N.C. App. 391, 395, 553 S.E.2d 43, 46

(2001).

“As a general matter, the North Carolina Constitution confers standing on

those who suffer harm.” United Daughters of the Confederacy v. City of Winston-

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Salem, 383 N.C. 612, 625, 881 S.E.2d 32, 44 (2022) (citation omitted); N.C. Const. art.

I, § 18 (providing that “every person for an injury done to him in his lands, goods,

person, or reputation shall have remedy by due course of law . . . .”). Unlike its federal

counterpart, the North Carolina Constitution “does not require the existence of an

‘injury-in-fact’ to establish standing.” United Daughters, 383 N.C. at 626, 881 S.E.2d

at 44 (citation omitted). Rather, “[w]hen a person alleges the infringement of a legal

right directly under a cause of action at common law, a statute, or the North Carolina

Constitution . . . the legal injury itself gives rise to standing.” Id. (brackets and

ellipses in original) (quoting Comm. to Elect Dan Forest, 376 N.C. at 608, 853 S.E.2d

at 733).

a. Nuisance

Plaintiffs have standing to sue for their nuisance claim by “alleg[ing] the

infringement of a legal right directly under a cause of action at common law . . . .”

United Daughters, 383 N.C. at 626, 881 S.E.2d at 44 (citation omitted). With respect

to private nuisance, our common law creates a cause of action when there is “a

substantial non-trespassory invasion of another’s interest in the private use and

enjoyment of property.” Watts v. Pama Mfg. Co., 256 N.C. 611, 617, 124 S.E.2d 809,

813–14 (1962); see also Evans v. Lochmere Recreation Club, Inc., 176 N.C. App. 724,

727, 627 S.E.2d 340, 342 (2006) (citation omitted) (A “private nuisance exists in a

legal sense when one makes an improper use of his own property and in that way

injures the land or some incorporeal right of one’s neighbor.”). Viewing the

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allegations in the light most favorable Plaintiffs as the the non-moving party,

Plaintiffs nuisance claim alleged they suffered unreasonable interference in the use

and enjoyment of their property, notwithstanding any property interest contentions

in the right-of-way. Plaintiffs therefore have standing to sue for their nuisance claim

in the instant case. The trial court therefore erred to the extent it granted

Defendants’ Rule 12(b)(1) motion with respect to the nuisance claim.1

b. Trespass

With respect to their trespass claim, Plaintiffs maintain they have standing

since they have an ownership interest in the right-of-way. Plaintiffs contend their

complaint sufficiently demonstrates standing based on the closure of Blake’s Mill

Road; yet Plaintiffs’ complaint does not demonstrate such an ownership interest. See

United Daughters, 383 N.C. at 630, 881 S.E.2d at 47. In fact, the language of the

deed expressly provides Plaintiffs’ title is subject to several exceptions, including the

portion of the property lying within the right-of-way:

Title to the property hereinabove described is subject to the following exceptions:

....

2) Easements and restrictions of record in Wake County Registry and also as shown on plat hereinbefore referred to.

3) That portion of the subject property lying within the

1 The trial court’s order does not state whether it granted Defendants’ 12(b)(1) motion for

failure to allege an amount in controversy or standing.

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right-of-way of Ebenezer Church Road and Old Blake’s Mill Road as shown on plat hereinbefore referred to.

Plaintiffs argue “[t]he words right-of-way usually connote an easement.” Crawford

v. Wilson, 43 N.C. App. 69, 70, 257 S.E.2d 696, 697 (1979). But in Pearson v.

Chambers, our Court determined “the term right-of-way has a two-fold meaning: it

may be used to designate an easement, and, apart from that, it may be used as

descriptive of the use or purpose to which a strip of land is put.” 18 N.C. App. 403,

405, 197 S.E.2d 42, 43 (1973).

Here, the deed provides title to Plaintiffs’ real property is subject to two

relevant exceptions: (1) “Easements . . . of record”; and (2) “That portion of the subject

property lying within the right-of-way of Ebenezer Church Road and Old Blake’s Mill

Road . . . .” Given that the deed specifically described easements of record in a

separate category of exception, it follows that the phrase “right-of-way” in this

instance does not “connote an easement.” Crawford, 43 N.C. App. at 70, 257 S.E.2d

at 697; see also Pearson, 18 N.C. App. at 405, 197 S.E.2d at 43 (quotation marks

omitted) (“[T]he term right-of-way has a two-fold meaning: it may be used to

designate an easement, and, apart from that, it may be used as descriptive of the use

or purpose to which a strip of land is put.”). Rather, it appears to be “descriptive of

the use or purpose to which a strip of land is put”—that being, a public road. Pearson,

18 N.C. App. at 405, 197 S.E.2d at 43; see also McCotter v. Barnes, 247 N.C. 480, 485,

101 S.E.2d 330, 334-35 (1958) (“It is a matter of common knowledge that the strip of

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land over which railroad tracks run is often referred to as the right of way, with the

term being employed as merely descriptive of the purpose for which the property is

used, without reference to the quality of the estate or interest the railroad company

may have in the strip of land.”).

Plaintiffs lack standing to sue under a theory of trespass since they do not have

an ownership interest in the subject property. See Comm. to Elect Forest, 376 N.C.

at 608, 853 S.E.2d at 733 (“When a person alleges the infringement of a legal right

arising under a cause of action at common law, a statute, or the North Carolina

Constitution, however, the legal injury itself gives rise to standing.”); see also

Farrington v. WV Invs., LLC, 296 N.C. App. 324, 330, 909 S.E.2d 495, 500 (2024)

(citation omitted) (“A plaintiff must prove three elements to establish a claim for real-

property trespass: ‘(1) that the defendant caused actual damage to the plaintiff, (2)

by entering the plaintiff’s real property without authorization, (3) which the plaintiff

contemporaneously possessed at the time of the alleged trespass.’”).

c. Trial Court’s Ruling

We hold the trial court committed error by granting Defendants’ Rule 12(b)(1)

motion since Plaintiffs had standing to sue under the theory of private nuisance.

Comm. to Elect Forest, 376 N.C. at 608, 853 S.E.2d at 733. We vacate this portion of

the order. However, the trial court did not commit error by granting Defendants’

dismissal of Plaintiffs’ trespass claim. Id. We thus affirm the trial court’s granting

of Defendant’s Rule 12(b)(1) motion as to Plaintiff’s trespass claim.

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B. 12(b)(6)—Failure to State a Claim

Plaintiffs submit that the trial court erred in granting Defendants’ Rule

12(b)(6) motion because: (1) the complaint sufficiently stated a claim for trespass; (2)

the complaint sufficiently stated a claim for nuisance; and (3) the trial court

“improperly relied upon matters well outside of the pleadings . . . .”

“[T]he review of an order granting a Rule 12(b)(6) motion to dismiss does not

involve an assessment or review of the trial court’s reasoning.” Taylor v. Bank of

Am., N.A., 382 N.C. 677, 679, 878 S.E.2d 798, 800 (2022). Instead, “the appellate

court affirms or reverses the disposition of the trial court—the granting of the Rule

12(b)(6) motion to dismiss—based on the appellate court’s review of whether the

allegations of the complaint are sufficient to state a claim.” Id. To state a sufficient

claim for relief under North Carolina law, a pleading shall contain:

(1) A short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and

(2) A demand for judgment for the relief to which he deems himself entitled. . . .

N.C. Gen. Stat. § 1A-1, Rule 8(a)(1)–(2). Rule 8(a)(1)’s “notice theory” of pleading

requires the complaint to provide:

sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and—by using the rules provided for

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obtaining pretrial discovery—to get any additional information he may need to prepare for trial.

Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970).

Despite the generous latitude of our notice pleading standard, a complaint

“must nonetheless state enough to give the substantive elements of at least some

legally recognized claim or it is subject to dismissal under Rule 12(b)(6).” Hayes v.

Peters, 184 N.C. App. 285, 287, 645 S.E.2d 846, 847 (2007) (citation omitted). The

trial court’s dismissal under Rule 12(b)(6) is proper if: “(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.” Wood v. Guilford Cty., 355

N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted).

In conducting our review, “we accept all the well-pleaded facts, not conclusions

of law, as true.” Privette v. Univ. of N.C., 96 N.C. App. 124, 132, 385 S.E.2d 185, 189

(1989) (citation omitted). This Court is not “required to accept mere conclusory

allegations, unwarranted deductions of fact, or unreasonable inferences as true.” Est.

of Vaughn v. Pike Elec., LLC, 230 N.C. App. 485, 493, 751 S.E.2d 227, 233 (2013)

(citations omitted).

1. Trespass

Since we affirm the trial court’s Rule 12(b)(1) dismissal of Plaintiffs’ trespass

claim, we hold that the trial court committed error by also dismissing this claim under

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Rule 12(b)(6). See United Daughters, 383 N.C. at 650, 881 S.E.2d at 60 (internal

citations omitted) (“Thus, since the trial court lacked subject matter jurisdiction over

plaintiff’s claims, the amended complaint was properly dismissed pursuant to Rule

12(b)(1). In view of the fact that the trial lacked jurisdiction over the subject matter

of plaintiff’s claims, the trial court erred by also dismissing the amended complaint

for failure to state a claim for which relief could be granted pursuant to Rule 12(b)(6),

with the Court of Appeals having erred as well by affirming the trial court’s decision

with respect to that issue.”).

2. Nuisance

Plaintiffs first contend that the trial court erred by granting Defendants’ Rule

12(b)(6) motion to dismiss for failure to state a claim for nuisance.

“[T]o establish a claim for nuisance, a plaintiff must show the existence of a

substantial and unreasonable interference with the use and enjoyment of its

property.” Shadow Group v. Heather Hills Home Owners Ass’n, 156 N.C. App. 197,

200, 579 S.E.2d 285, 287 (2003); see also Elliott v. Muehlbach, 173 N.C. App. 709, 712,

620 S.E.2d 266, 269 (2005) (“[I]n order to establish a prima facie case of nuisance per

accidens, a plaintiff must prove: (1) that the defendant’s use of its property, under the

circumstances, unreasonably invaded or interfered with the plaintiff’s use and

enjoyment of the plaintiff’s property; and (2) because of the unreasonable invasion or

interference, the plaintiff suffered substantial injury.”). An “interference is

substantial when it results in significant annoyance, material physical discomfort or

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injury to a person’s health or property. A slight inconvenience or a petty annoyance

is not a substantial interference.” Shadow Group, 156 N.C. App. at 200, 579 S.E.2d

at 287 (citation omitted).

Here, Plaintiffs’ complaint included the necessary facts sufficient to support a

claim of nuisance. See Hayes, 184 N.C. App. at 287, 645 S.E.2d at 847. In their

complaint, Plaintiffs alleged that “Defendants substantially interfered with

Plaintiffs’ use and enjoyment of their property by constructing a driveway

dangerously close to the Defendants’ property resulting in material, unreasonable

discomfort or injury to Plaintiffs’ health and property.” The complaint also provided

that this “substantial interference is unreasonable such that a person of ordinary

prudence and discretion would consider it excessive or inappropriate.” And because

of the alleged nuisance, Plaintiffs’ complaint requested “damages in an amount to be

proven at trial” as well as a “permanent and mandatory injunction . . . .”

Plaintiffs thus “have some knowledge of specific facts as to when the alleged”

nuisance occurred, and the relief thereafter sought. Smith v. Charlotte, 79 N.C. App.

517, 529–30, 339 S.E.2d 844, 852 (1986). Moreover, their complaint provides

“sufficient notice of the events or transactions which produced the claim to enable the

adverse party to understand the nature of it and the basis for it, to file a responsive

pleading, and . . . to get any additional information he may need to prepare for trial.”

Sutton, 277 N.C. at 104, 176 S.E.2d at 167. For these reasons, we hold that the trial

court erroneously granted Defendants’ Rule 12(b)(6) motion on Plaintiffs’ nuisance

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claim. See N.C. Gen. Stat. § 1A-1, R. 8.

3. Matters Outside the Pleading

Plaintiffs next contend that the trial court erred by granting Defendants’ Rule

12(b)(6) motion because it “improperly relied upon matters well outside the pleadings

. . . .” In essence, Plaintiffs argue that since the trial court considered evidence outside

the complaint, it impermissibly converted the Rule 12(b)(6) motion into a Rule 56

motion for summary judgment.

“Whether a Rule 12(b)(6) motion has been converted to a Rule 56 motion is a

question of law subject to de novo review.” Blue v. Bhiro, 381 N.C. 1, 5, 871 S.E.2d

691, 694 (2022) (citations omitted). “As a general proposition, [ ] matters outside the

complaint are not germane to a Rule 12(b)(6) motion.” Weaver v. Saint Joseph of the

Pines, Inc., 187 N.C. App. 198, 203, 652 S.E.2d 701, 707 (2007). “[W]hen considering

a Rule 12(b)(6) motion, the trial court is limited to reviewing the allegations made in

the complaint.” Blue, 381 N.C. at 5, 871 S.E.2d at 694.

Rule 12(b) provides:

If, on a motion . . . 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[.]

N.C. Gen. Stat. § 1A-1, Rule 12(b) (2023). “The phrase ‘matters outside the pleading’

refers to evidentiary materials used to establish facts.” Blue, 381 N.C. at 6, 871

S.E.2d at 695 (citation omitted). “[M]emoranda of points and authorities as well as

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briefs and oral arguments . . . are not considered matters outside the pleading.” Id.

(citation omitted) (ellipses in original).

“[W]hen ruling on a Rule 12(b)(6) motion, a court may properly consider

documents which are the subject of a plaintiff’s complaint and to which the complaint

specifically refers even though they are presented by the defendant.” Holton, 258

N.C. App. at 419, 813 S.E.2d at 657. “A document attached to and incorporated

within a complaint is not considered a matter outside of the pleading.” Id. at 418,

813 S.E.2d at 657. In addition, a trial court may take judicial notice of “important

public documents.” State ex rel. Utilities Comm’n v. S. Bell Tel. & Tel. Co., 289 N.C.

286, 287, 221 S.E.2d 322, 323–24 (1976) (citation omitted).

Plaintiffs contend that the trial court erred as follows: (1) considering the

arguments of Defendants’ counsel at the hearing because they concerned matters

outside the pleading; (2) considering Defendants’ driveway permit because it was not

included or referenced in the complaint; and (3) considering a different survey from

that attached to the complaint.

In ruling on Defendants’ Rule 12(b)(6) motion, the trial court’s order reflects

that it reviewed the complaint and the arguments of counsel at the hearing. Nothing

in its order reflects that the trial court viewed evidence outside the complaint,

considered Defendants’ driveway permit, or considered the additional survey map.

At the hearing, counsel for Defendants argued about the permit and the survey map,

but “oral arguments . . . are not considered matters outside the pleading.” Blue, 381

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N.C. at 6, 871 S.E.2d at 695 (citation omitted); see also Steele v. Bowden, 238 N.C.

App. 566, 573, 768 S.E.2d 47, 54 (2014) (citation omitted and brackets in original)

(“[I]n the event that the matters outside the pleading considered by the trial court

consist only of briefs and arguments of counsel, the trial court need not convert the

[motion] into one for summary judgment.”). The trial court did not consider matters

outside the pleading. Plaintiffs’ argument is thus overruled.

C. Dismissal With Prejudice

Plaintiffs’ final submission is that the trial court abused its discretion by

dismissing the matter with prejudice.

“The trial court’s authority to order an involuntary dismissal without prejudice

is . . . exercised in the broad discretion of the trial court[,] and the ruling will not be

disturbed on appeal in the absence of a showing of abuse of discretion.” Whedon v.

Whedon, 313 N.C. 200, 213, 328 S.E.2d 437, 445 (1985). “Abuse of discretion results

where the court’s ruling is manifestly unsupported by reason or is so arbitrary that

it could not have been the result of a reasoned decision.” First Fed. Bank v. Aldridge,

230 N.C. App. 187, 191, 749 S.E.2d 289, 292 (2013) (citation omitted).

“[D]ismissals, including those under Rule 12(b)(6), operate as an adjudication

upon the merits unless the trial court specifies the dismissal is without prejudice.”

Johnson v. Bollinger, 86 N.C. App. 1, 8, 356 S.E.2d 378, 383 (1987); see also N.C. Gen.

Stat. § 1A-1, Rule 41(b) (“Involuntary dismissal; effect thereof.”). “A dismissal with

prejudice is the converse of a dismissal without prejudice and indicates a disposition

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on the merits. It is said to preclude subsequent litigation to the same extent as if the

action had been prosecuted to a final adjudication adverse to the plaintiff.” Johnson,

86 N.C. App. at 8, 356 S.E.2d at 383 (citation omitted). “[T]he party whose claim is

being dismissed has the burden to convince the court that the party deserves a second

chance; thus, the party should move the trial court that the dismissal be without

prejudice.” Id. at 9, 356 S.E.2d at 383; see also Whedon, 313 N.C. at 213, 328 S.E.2d

at 445.

“Although the practical consequence of dismissal of a complaint under Rule

12(b)(6) or 12(b)(1) is the same—the case is dismissed—the legal effect is quite

different.” United Daughters, 383 N.C. at 650, 881 S.E.2d at 60 (citation omitted).

Where “a complaint is dismissed for failure to state a claim, that decision constitutes

a final judgment on the merits for res judicata purposes and bars the plaintiff from

maintaining another action on the basis of this same claim.” Id. (citations omitted).

But if “a complaint is dismissed for lack of subject matter jurisdiction, that decision

does not result in a final judgment on the merits and does not bar further action by

the plaintiff on the same claim.” Id. (citations omitted).

Here, the trial court properly granted dismissal of Plaintiffs’ trespass claim on

Rule 12(b)(1) grounds for lack of subject matter jurisdiction; accordingly, its dismissal

of that claim should have been entered without prejudice. See id. (vacating “the

portion of the trial court’s order dismissing the amended complaint with prejudice

and remand[ing] this case . . . with instructions to dismiss the amended

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complaint without, rather than with, prejudice”); see also Pugh, 288 N.C. App. at 588,

887 S.E.2d at 744 (“[W]hen a trial court determines that it lacks subject-matter

jurisdiction over a matter because of the plaintiff's failure to establish standing, the

court may not dismiss the matter with prejudice pursuant to Rule 12(b)(6).”).

Moreover, in light of our holdings above, the dismissal of Plaintiffs’ claims with

prejudice was improper and amounted to an abuse of discretion. As a result, “we

vacate the portion of the trial court’s order dismissing the . . . complaint with

prejudice and remand this case to [the trial court], with instructions to dismiss the . . .

complaint without, rather than with, prejudice.” Pugh, 288 N.C. App. at 588–89, 887

S.E.2d at 744.

IV. Conclusion

After careful review, we hold the trial court committed error by granting

Defendants’ Rule 12(b)(1) motion to dismiss based on a lack of amount in controversy.

We also hold that the trial court erred by dismissing Plaintiffs’ nuisance action for

lack of standing under Rule 12(b)(1) and for failure to state a claim under Rule

12(b)(6). In turn, the trial court erred in dismissing Plaintiffs’ nuisance and trespass

claims with prejudice. But the trial court did not err in granting Defendants’ motion

to dismiss for lack of standing concerning Plaintiffs’ trespass claim and it did not

improperly consider matters outside the pleading. We therefore affirm the trial

court’s dismissal of Plaintiffs trespass claim, but vacate any dismissal with prejudice;

we vacate and remand the trial court’s dismissal of Plaintiffs nuisance claim for

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further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Judges STROUD and COLLINS concur.

Report per Rule 30(e).

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