Foster v. Winston-Salem Joint Venture

HILL, Judge.

We find that the trial judge erred in dismissing the case pursuant to Rule 12(b)(6). No motion by defendants to dismiss for failure to state a claim can be found in the record. The error is harmless, however, because matters outside the pleadings were considered, and the trial judge correctly granted summary judgment in favor of defendants pursuant to Rule 56. We make the rather technical point above because we feel it is important to stress that if a 12(b)(6) motion had been made and considered solely on the pleadings, plaintiff could have stated a cause of action if the facts…