Held v. Zamparelli

In this action for an accounting and payment of profits due on an oral contract, the defendants moved to dismiss the plaintiff’s amended complaint under Mass.R.Civ.P. 12(b)(6) and 56, 365 Mass. 755, 824 (1974). At the hearing on the motion, material in addition to the pleadings was before the judge, who entered a judgment under rule 12(b) (6). As it does not appear whether the judge excluded this material from his consideration in *958allowing the motion to dismiss, “we treat the judgment of dismissal in so far as it may have been granted under rule 12(b)(6) as a summary judgment.” Mongeau v.…