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,
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