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Bowen Court Associates v. Ernst & Young3/27/2003
tion was not incorporated within the filed pleadings, which included only plaintiffs' complaint. (Because the accountants opted to pursue a Rule 12(b)(6) motion, they never filed an answer or counterclaim.)
The mere fact that a pleading mentions or refers to a document -- without attaching it to the pleading -- does not cause that document to be incorporated by reference as if the pleader had appended it to the pleading. See Rule 10(c); see also 1 Kent, R.I. Civ. Prac. § 10.3 at 100 (1969) (recognizing that documents incorporated by reference in a complaint must be referred to explicitly and "the exhibit annexed to the complaint"). And there is no exception to this rule when the documents submitted constitute other court filings or pleadings from previous court cases --even those that involve the same parties. See DiBattista v. State Department of Children, Youth & Families, 717 A.2d 640, 642 (R.I. 1998) (mem.). Because the accountants relied on documents outside the complaint in filing their Rule 12 (b)(6) motion, the Superior Court motion justice either should have excluded these documents from the court's consideration or notified the parties that she would consider them in deciding the pending motion. In any event, when the motion justice failed to exclude them from her consideration, she thereby automatically converted the dismissal motion into one for summary judgment under Rule 56. See Rule 12 (b) ("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 motion by Rule 56." (Emphases added.))
Here, the motion justice noted that in connection with the dismissal motion the accountants submitted to the court documents beyond the pleadings -- yet she did not exclude them from her consideration. Under these circumstances, conversion of the dismissal motion to one for summary judgment was automatic under the rules. Moreover, plaintiffs should have been afforded proper notice of this conversion and given "reasonable opportunity to present all material made pertinent to such motion by Rule 56" -- as per Rule 12(b).
Nevertheless, because plaintiffs failed to raise any such lack-of-reasonable-notice argument to the motion justice or on appeal, they have waived this issue as a potential assignable error. Moreover, any error committed by the motion justice in this regard would appear to have been harmless because the record does not reveal (and plaintiffs have not argued) that plaintiffs suffered any prejudice from the court's consideration of documents outside the pleadings without giving them a reasonable opportunity to present all material pertinent to a Rule 56 summaryjudgment motion. Thus, even though the motion justice should have entered an order deciding this motion on summary judgment, it does not appear to us that plaintiffs suffered any prejudice from the fact that the motion justice instead merely issued an order dismissing the claims under Rule 12(b)(6) rather than under Rule 56.
II. The Accounting Malpractice Statute of Limitations Bars These Negligence Claims Despite the Lack of Contractual Privity Between Plaintiffs and the Accountants
It is undisputed that plaintiffs failed to sue the accountants within any of the three-year periods provided for in § 9-1-14.1, which contains the statute of limitations for asserting accounting-malpractice claims. A claimant cannot evade these time bars merel
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