Depalma v. Roman Catholic Diocese of Raleigh12/7/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Plaintiffs appeal from an order granting defendants' motion to dismiss their complaint under N.C.G.S. § 1A-1, Rule 12(b)(6) (2003), for failure to state a claim for relief and as barred by the applicable statute of limitations. We affirm.
In October 1999, plaintiff Marcus DePalma was enrolled as a student at defendant Cardinal Gibbons High School ("the school"), in Raleigh, North Carolina, and played on the school's footballteam. On 15 October 1999 Marcus injured his knee and ankle while playing in a school football game. On 31 May 2003 plaintiffs filed suit against the Diocese, the school, and several individual school personnel. On 15 July 2003 defendants moved to dismiss plaintiffs' complaint under N.C.G.S. § 1A-1, Rule 12(b)(6), as barred by the applicable statute of limitations, and also for failure to comply with the Rules of Civil Procedure. On 7 October 2003 the trial court granted defendants' motion and ordered plaintiffs' complaint dismissed with prejudice. From this order, plaintiffs appeal.
Standard of Review
A motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6) (2003), challenges the legal sufficiency of a plaintiff's pleadings:
A Rule 12(b)(6) motion will be granted '(1) when the face of the complaint reveals that no law supports plaintiff's claim; (2) when the face of the complaint reveals that some fact essential to plaintiff's claim is missing; or (3) when some fact disclosed in the complaint defeats plaintiff's claim.' We treat all factual allegations of the pleading as true but not conclusions of law.
Sterner v. Penn, 159 N.C. App. 626, 628, 583 S.E.2d 670, 672 (2003) (quoting Walker v. Sloan, 137 N.C. App. 387, 392, 529 S.E.2d 236, 241 (2000)) (other citations omitted). On appeal, our standard of review "'is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.'" Bowman v. Alan Vester Ford Lincoln Mercury, 151 N.C. App. 603, 606, 566 S.E.2d 818, 821 (2002)(quoting Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d 351, 353, disc. review denied, 355 N.C. 748, 565 S.E.2d 665 (2002)).
If, in its ruling on a Rule 12(b)(6) motion, the trial court considers evidence outside the pleadings, the motion is converted to one for summary judgment. See Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 292, 378 S.E.2d 21, 24 (1989) ("court considered matters outside the pleadings and thus treated the motions to dismiss as motions for summary judgment"). However, "where, as here, 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 Rule 12 motion into one for summary judgment under Rule 56[.]'" Governor's Club Inc. v. Governors Club Ltd. P'ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 785 (2002), aff'd, 357 N.C. 46, 577 S.E.2d 620 (2003) (quoting Privette v. University of North Carolina, 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989)).
In the instant case, the court's order states in pertinent part that " fter reviewing the pleadings and hearing argument from counsel and the DePalmas, the Court finds that the motion should be granted." We conclude that the trial court did not consider evidence outside the pleadings; therefore, this Court will confine its review to the pleadings.
The di
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