FOSTER v. WINSTON-SALEM JOINT VENTURE

No. 8022SC542.

274 S.E.2d 265 (1981)

Irene B. FOSTER, Plaintiff, v. WINSTON-SALEM JOINT VENTURE, a general partnership; Jacobs Visconsi & Jacobs Company; Center Ridge Co.; Belk-Hensdale Company of Fayetteville, N. C., Inc.; Sears, Roebuck and Company; and J. C. Penney Properties, Inc., Defendants.

Court of Appeals of North Carolina.

February 3, 1981.


Attorney(s) appearing for the Case

Hutchins, Tyndall, Bell, Davis & Pitt by Richard D. Ramsey and Fred S. Hutchins, Jr., Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by James M. Stanley, Jr., and Allan R. Gitter, Winston-Salem, for defendant-appellee.


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...

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