Kier v Kier, (02-723) 07/01/2003

Appeal by plaintiff from order entered 11 March 2002 by Judge G. Galen Braddy in Pitt County District Court. Heard in the Court of Appeals 12 May 2003.

Jeffrey L. Miller, for plaintiff-appellant.

Kathy Kier, pro se.

    LEVINSON, Judge.

    On 17 July 2000, plaintiff instituted a new action seeking a Domestic Violence Protective Order under N.C.G.S. § 50B. No other relief was sought. Plaintiff claimed defendant assaulted him and threatened future harm. On 24 July 2000, a hearing on the merits of plaintiff's complaint was held during which the defendant fully participated. The trial court entered a one year Domestic Violence Protective Order.
    On 24 August 2000, defendant filed a pleading which included (1) a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted; (2) a Rule 60 motion to set aside the N.C.G.S. § 50B order; and (3) denials of the substantiveallegations in plaintiff's Chapter 50B complaint and seven separate counterclaims. Plaintiff filed a motion to dismiss the defendant's Rule 12(b)(6) motion, answer, and counterclaims. Defendant's Rule 60 motion was dismissed by the trial court and is not at issue. The trial court denied plaintiff's motion to dismiss and strike defendant's Rule 12(b)(6) motion, denials, and counterclaims. Plaintiff appeals.

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    The plaintiff first assigns as error the trial court's denial of his motion to dismiss defendant's N.C.G.S. § 1A-1 12(b)(6) (2001) (Rule 12(b)(6)) motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff contends the motion was untimely. We agree.
    A common means for moving for any dismissal under Rule 12(b) is to make such a motion before pleading if further pleading is permitted. N.C.G.S. § 1A-1 12(b) (2001) (Rule 12(b)). Defendant did not do so in this case.
    Alternatively, N.C.G.S. §1A-1 12(h)(2) (2001) (Rule 12(h)(2)) provides three other avenues by which a Rule 12(b)(6) motion can be made. We address these in turn. First, a party may include such a motion in any pleading permitted under N.C.G.S. § 1A-1 7(a) (2001) (Rule 7(a)). An answer is one of the pleadings permitted under Rule 7(a). Because defendant's Rule 12(b)(6) motion was filed in conjunction with her answer it would ordinarily meet the first Rule 12(h)(2) option. However, defendant did not file an answer until 24 August 2000. This clearly does not comport withthe requirements of N.C.G.S. § 1A-1 12(a)(1) (2001) (Rule 12(a)(1)).
    Secondly, a party may include a Rule 12(b)(6) motion within a motion for judgment on the pleadings. Rule 12(h)(2). A motion for judgment on the pleadings, as set forth in N.C.G.S. § 1A-1 12(c) (2001) (Rule 12(c)), may only be made after the pleadings are closed and within such time as not to delay the trial. Rule 12(c). Defendant did not file a Rule 12(c) motion in this case. Third, a motion to dismiss for failure to state a claim may be brought at a trial on the merits. Rule 12(h)(2). This was not done here. Because defendant did not bring her motion until after final adjudication of the Chapter 50B claim, any possibility of moving for dismissal at trial had passed. Finally, defendant's Rule 12(b)(6) motion must fail because it was filed after final adjudication of the plaintiff's claim. A motion to dismiss for failure to state a claim that is filed after a trial on the merits is not timely. See Dale v. Lattimore, 12 N.C. App. 348, 350, 183 S.E.2d 417, 418-419 (Rule 12(b)(6) motion may be made as late as trial, but not for the first time on appeal), cert. denied, 279 N.C. 619, 184 S.E.2d 113 (1971). Further, the Comment to Rule 12 provides in pertinent part:
        [T]he defenses of failure to state a claim,
        or failure to join a necessary party may be
        raised at any time before verdict. After
        verdict however, the defenses of failure to
        state a claim and failure to join a
        necessary party cannot then be raised or
        noted for the first time.

Defendant's Rule 12(b)(6) motion was raised for the first timeafter a final judgment had been rendered and was therefore untimely.
    Because defendant's Rule 12(b)(6) motion did not meet the standards set forth by Rule 12 and it was made after final judgment was rendered, it was not timely, and the trial court's denial of plaintiff's motion to dismiss it was error.
    Plaintiff next assigns as error the trial court's denial of his motion to strike defendant's denials of the substantive allegations in plaintiff's complaint and her counterclaims. First, it is self-evident that defendant's denials concerning the substantive allegations of plaintiff's complaint have no effect. It was error to deny plaintiff's motion to strike these denials. Concerning the trial court's denial of plaintiff's motion to strike defendant's counterclaims, at the time of filing on 24 August 2000, the trial court already resolved the merits of plaintiff's original Chapter 50B complaint. The trial court's order dated 24 July 2000 achieved finality in the case. Thereafter, it was too late for the defendant to assert any new defenses or counterclaims within this action. Walker Frames v. Shively, 123 N.C. App. 643, 646, 473 S.E.2d 776, 778 (1996) (plaintiff's voluntary dismissal of the case terminated all adversary proceedings in the case and defendant could not properly counterclaim for damages). In the absence of an ongoing lawsuit, a party has no right to assert counterclaims. Id. Therefore, the trial court's denial of plaintiff's motion to strike defendant's substantive denials and counterclaims was error.    As plaintiff concedes, defendant is not precluded from filing an independent action. We need not address whether defendant's counterclaims are barred by res judicata or collateral estoppel or, further, whether they are compulsory or permissive counterclaims pursuant to N.C.G.S. § 1A-1 13 (2001). At the appropriate time, defendant may assert any applicable defenses in a subsequent proceeding.
    It was error for the trial judge to deny plaintiff's motion to strike and dismiss defendant's Rule 12(b)(6) motion, substantive denials and counterclaims.
    Reversed and Remanded.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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