Coleman v. Shirlen

WELLS, Judge.

Plaintiffs first assign error to the granting by the trial judge of the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. G.S. 1A-1, Rule 12(b) provides, however, that if “matters outside the pleading are presented to and not excluded by the court, the [Rule 12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” See Smith v. Smith, 17 N.C. App. 416, 420-21, 194 S.E. 2d 568, 570 (1973). The trial court’s order indicates that it was “[b]ased on the matters presented to the Court, which…