Appeal by plaintiff from an order entered 28 September 2006 by
Judge James C. Davis in Cabarrus County Superior Court. Heard in
the Court of Appeals 13 September 2007.
Koehler & Cordes, PLLC, by Stephen D. Koehler, for plaintiff-
Shuford, Hunter & Brown, P.A., by Angela M. Heath, for
William B. Morris (plaintiff) appeals from an order entered 28
September 2006 granting summary judgment in favor of Marvin R. and
Gloria M. Moore (defendants). For the reasons stated herein, we
affirm the order of the trial court.
Facts and Procedural History
Plaintiff lives with his wife on property located at 8980
Rocky River Road in Harrisburg, North Carolina (hereinafter, the
property). Plaintiff purchased the property in 1963, but
subsequently deeded the property to defendants in 1998. Defendant
Gloria Moore is plaintiff's daughter.
On 26 September 2002, defendants filed for bankruptcy relief
in the United States Bankruptcy Court, Western District of North
Carolina, Charlotte Division. Plaintiff subsequently filed a
motion in defendants' bankruptcy case to abandon certain real
property known as 8980 Rocky River Road . . . and for relief from
the automatic stay of 11 U.S.C. Section 362 as to said property[.] The Bankruptcy Court held a hearing on plaintiff's motion on 28
August 2003, and entered an order on 23 September 2003 denying
plaintiff's motion to abandon the property and for relief from the
Plaintiff filed his complaint initiating the case at hand on
9 February 2006. Defendants failed to respond to plaintiff's
complaint. Plaintiff filed a motion for entry of default judgment
on 11 April 2006 and obtained an entry of default by the Clerk of
Superior Court. On 30 May 2006, the matter came before the trial
court on plaintiff's motion for default judgment. The trial court
found that plaintiff's complaint did not state any grounds for
relief, and denied plaintiff's motion for entry of a default
judgment, but allowed plaintiff leave to amend his pleadings to
state grounds for relief.
On 31 May 2006, plaintiff filed an amended complaint, the
of which is that because plaintiff has lived on the
property and paid the taxes and upkeep on the property, the trial
court should order defendants to execute a deed returning ownership
of the property to him. On 2 August 2006, defendants filed a
responsive pleading entitled Motion to Dismiss; Answer;
Affirmative Defenses; Rule 11 Attorney's Fees. Defendants' motion
to dismiss was heard on 25 September 2006 and an order granting
summary judgment in favor of defendants was entered on 28 September
2006. Plaintiff appeals.
Plaintiff raises the issues of whether the trial court erred
by granting summary judgment in favor of defendants: (I) after a
hearing on defendants' motion to dismiss pursuant to Rule 12(b)(6);
(II) without providing plaintiff an opportunity to respond; (III)
where defendants had presented no admissible evidence in support of
their motion; and (IV) where defendants had failed to establish all
of the elements of res judicata
or collateral estoppel.
 Plaintiff first contends the trial court erred by entering
an order granting summary judgment in favor of defendants after a
hearing on defendants' motion to dismiss pursuant to Rule 12(b)(6)
of the North Carolina Rules of Civil Procedure. We disagree
When material outside of the pleadings is presented to the
trial court during a hearing considering a motion to dismiss
pursuant to Rule 12(b)(6), and the material is not excluded by the
trial court, the motion is treated as one for summary judgment and
disposed of pursuant to Rule 56 of the North Carolina Rules of
Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 12(b) (2005);
Carlisle v. Keith
, 169 N.C. App. 674, 688-90, 614 S.E.2d 542, 551-
52 (2005). We review a trial court's conversion of a motion to
dismiss pursuant to Rule 12(b)(6) to a motion for summary judgment
pursuant to Rule 56 for an abuse of discretion. Belcher v.
, 162 N.C. App. 80, 84, 590 S.E.2d 15, 18 (2004).
The transcript of the hearing on defendants' motion to dismiss
reveals that the trial court received and considered several
documents outside of the pleadings, including: a release from atax lien indicating plaintiff had paid over $2,100 in taxes due on
the property; plaintiff's check tendered in payment of the taxes;
the complaint filed by plaintiff in Bankruptcy Court; and the order
dismissing plaintiff's complaint in Bankruptcy Court. Accordingly,
defendants' motion to dismiss pursuant to Rule 12(b)(6) was
correctly treated as a motion for summary judgment pursuant to Rule
56 and the trial court did not abuse its discretion in entering its
order pursuant to Rule 56. This assignment of error is overruled.
 Plaintiff also contends the trial court erred in granting
summary judgment in favor of defendants without providing plaintiff
an opportunity to respond. We disagree.
When a motion to dismiss pursuant to Rule 12(b)(6) is treated
as a motion for summary judgment pursuant to Rule 56 because of the
consideration of material outside of the pleadings, the parties
must be given a reasonable opportunity to present material
pertinent to a Rule 56 motion. N.C. Gen. Stat. § 1A-1, Rule 12(b)
(2005); Raintree Homeowners Ass'n. 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). However, this Court has held that
the notice required by Rule 12(b) in
situations where . . . a 12(b)(6) motion is
being treated as a motion for summary judgment
is procedural rather than constitutional. . .
. By participating in the hearing and failing
to request a continuance or additional time to
produce evidence, a party waives his right to
this procedural notice.
, 62 N.C. App. at 673, 303 S.E.2d at 582 (internal
citations omitted); see also Belcher
, 162 N.C. App. at 84, 590S.E.2d at 18 (holding where plaintiffs had participated in a
hearing on a Rule 12(b)(6) motion and did not request a continuance
or additional time to produce evidence, the plaintiffs could not
complain that they were denied a reasonable opportunity to present
materials to the court)
Here, plaintiff did not request a continuance or additional
time to produce evidence. Plaintiff did not object to the
admission of material outside the pleadings. In fact, plaintiff
himself first offered material outside of the pleadings to the
trial court for its consideration. Plaintiff has waived his right
to complain he was denied a reasonable opportunity to present
material to the trial court. This assignment of error is
 Plaintiff next argues the trial court erred in granting
summary judgment in favor of defendants because defendants had
presented no admissible evidence in support of their motion.
Specifically, plaintiff contends the order from the Bankruptcy
Court admitted into evidence was not properly authenticated
pursuant to Rules 901 or 902 of the North Carolina Rules of
Evidence and thus was not competent evidence upon which the trial
court could rely. Plaintiff, however, did not object to the
admission of the order and has thus failed to preserve this
argument for our review. N.C. R. App. P. 10(b)(1) (In order to
preserve a question for appellate review, a party must havepresented to the trial court a timely request, objection or
 Plaintiff lastly argues the trial court erred by granting
summary judgment in favor of defendants because defendants had
failed to establish all of the elements of res judicata
collateral estoppel. We disagree.
To establish the elements of collateral estoppel, defendants
must show: ' the earlier suit resulted in a final judgment on
the merits,  that the issue in question was identical to an
issue actually litigated and necessary to the judgment, and 
that both [defendants] and [plaintiff] were either parties to the
earlier suit or were in privity with parties.' Gregory v.
, 179 N.C. App. 505, 513, 634 S.E.2d 625, 631 (2006)
(quoting Thomas M. McInnis & Assocs. v. Hall
, 318 N.C. 421, 429,
349 S.E.2d 552, 557 (1986)). We note, however, that the third
element of collateral estoppel is not required when collateral
estoppel is being used 'against a party who has previously had a
full and fair opportunity to litigate a matter and now seeks to
reopen the identical issues with a new adversary.' Id.
634 S.E.2d at 631 (quoting Hall
, 318 N.C. at 434, 349 S.E.2d at
At the hearing on defendants' motion to dismiss, plaintiff
argued that while he had conveyed the property to defendants, the
conveyance was merely for defendants to hold the property and the
property was supposed to be returned to him. Plaintiff furtherargued that because of his payment of the tax lien, the property
was supposed to be given back to me. My daughter didn't do that.
Plaintiff filed his motion in defendants' bankruptcy case in
an attempt to remove the property from defendants' bankruptcy
estate, apparently presenting arguments similar to those in the
case at hand. In the order by the Bankruptcy Court dismissing
plaintiff's motion, the court, in pertinent part, found and
3. On January 3, 1998 a general warranty deed
was executed transferring the property from
William Benton Morris and wife . . . to the
debtors, Marvin Rae Moore and wife, Gloria
4. The transfer of said property to the
debtors was a gift and was recorded of public
record at the Cabarrus County, North Carolina
Register of Deeds on March 2, 1998.
5. The conveyance was a gift and no trust
obligation was associated with the transfer.
6. There was no fraud involved in the transfer
of said property to the debtors.
7. The debtors were not unjustly enriched.
8. There is no equitable basis for imposing a
9. There is no resulting trust as one cannot
be engrafted into a fee simple warranty deed.
10. All legal and equitable interests in the
property should remain in the debtors'
bankruptcy estate as provided by 11 U.S.C.
Thus, the issue of whether the conveyance of the property to
defendants was valid or limited in any way was fully determined by
the Bankruptcy Court and its order constitutes a final judgment onthe merits. Defendants have met their burden in establishing that
plaintiff's current claim regarding the property is barred by the
doctrine of collateral estoppel.
Having determined that collateral estoppel applies we need not
address plaintiff's argument as to res judicata
. This assignment
of error is overruled.
Judges STEELMAN and GEER concur.
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