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Carlisle v. Keith4/19/2005
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 a motion by Rule 56.
N.C.G.S. § 1A-1, Rule 12(b) (2003).
In the instant case, the trial court stated in its order that it "having reviewed the pleadings, Defendant Brunson's Memorandum in Support of Motion to Dismiss, Plaintiff's Memorandum in opposition to Motion to Dismiss, and having heard arguments and statements of counsel, the Court concluded that each claim assertedby Plaintiff against Defendant Brunson fails to state a claim upon which relief can be granted." On a previous occasion, our Court has held " he trial court's consideration of evidence other than the pleading is contrary to the purpose of Rule 12(b)(6)." Kemp v. Spivey, --- N.C. App. ---, ---, 602 S.E.2d 686, 690 (2004) ("Based on the trial court's consideration of matters in addition to the complaint, defendant's Rule 12(b)(6) motion was thereby converted into a motion for summary judgment."). The present case, however, is distinguishable.
G. Gary Wilson clarifies:
The final provision of Rule 12(b) is limited to a motion to dismiss for failure to state a claim upon which relief may be granted under subsection (6). If at the hearing on such a motion the court considers matters outside the pleading, the motion must be treated as one for summary judgment pursuant to Rule 56. While Rule 12(b) contemplates that a motion to dismiss for failure to state a claim is to be considered by merely reviewing the pleadings, the last provision of this rule creates one exception. Whether matters outside the pleading are to be considered is left up to the discretion of the court, but the rule is explicit that a party must first present such materials to the court for review. The court may not convert the motion to dismiss to one for summary judgment by developing an evidentiary record on its own initiative. While extraneous matter usually consists of affidavits or discovery documents, it may also consist of live testimony, stipulated facts, documentary evidence in a court's file.
G. Gary Wilson, 1 North Carolina Civil Procedure §12-3, at 210-11 (2nd ed. 1995) (emphasis added); see also Eastway Wrecker Serv. v. City of Charlotte, --- N.C. App. ---, ---, 599 S.E.2d 410, 412 (2004) (" t appears that the only documents other than thepleadings that were before the trial court in connection with the motion to dismiss were the plaintiff's exhibits to the complaint. Since the exhibits to the complaint were expressly incorporated by reference in the complaint, they were properly considered in connection with the motion to dismiss[.]"); Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412 (1982); Broome v. Pistolis, 53 N.C. App. 366, 280 S.E.2d 794 (1981); Roberts v. Heffner, 51 N.C. App. 646, 277 S.E.2d 446 (1981).
Here, counsel for defendant presented a memorandum in support of his motion to dismiss and plaintiff presented a memorandum in opposition to the motion to dismiss. Neither memoranda contained attached exhibits for the trial court's review. Nor was the trial court asked to consider any "affidavits or discovery documents,. . . live testimony, stipulated facts, documentary evidence in a court's file." G. Gary Wilson, 1 North Carolina Civil Procedure §12-3, at 211 (2nd ed. 1995).
Our review of the memoranda, leads this Court to the conclusion the documents did not present any factual evidence or allegations which the trial court could only properly address pursuant to a Rule 56 hearing for summary judgment. Rather, the memoranda reiterated the current status of the law,
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