Appeal by plaintiff from Hasty, Judge. Order entered 6 July 1978 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 29 August 1979.
Wells, Judge. Judges Clark and Erwin concur.
We deal first with the defendants' contention that the failure of plaintiff to specifically mention in her notice of appeal that specific portion of Judge Hasty's order of 6 July 1978 sustaining defendants' defense under G.S. 1A-1, Rule 12(b)(6), deprives this Court of jurisdiction to hear plaintiff's appeal from this part of the order. Plaintiff's appeal would be meaningless if we were to agree with defendants' arguments since the trial court's granting of defendants' Rule 12(b)(6) motion would be sufficient in itself to terminate plaintiff's action.
We acknowledge that the appellant must appeal from each part of the judgment or order appealed from which appellant desires the appellate court to consider in order for the appellate court to be vested with jurisdiction to determine such matters. N.C. Rules of Appellate Procedure, Rule 3(d). However, in the instant case, defendants' Rule 12(b)(6) defense was converted and merged automatically into their Rule 56 motion. The last sentence of Rule 12(b) states:
If, on a motion asserting the defense, numbered (6), to dismiss for failure of a pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all the parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
This last sentence is identical to the last sentence of Rule 12(b) of the Federal Rules of Civil Procedure. The courts of both this State as well as those in the Federal system have determined that Rule 12(b)(6) motions are automatically converted into Rule 56 motions if matters outside the pleadings are presented to and not excluded by the trial court. Carter v. Stanton, 405 U.S. 669, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972); Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46 (1977), rev'd on other grounds, 294 N.C. 146, 240 S.E.2d 360 (1978); In re Will of Edgerton, 26 N.C. App. 471, 216 S.E.2d 476 (1975); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1366, p. 679 (1969); Shuford, N.C. Civil Practice and Procedure § 12-10, pp. 108-109 (1975). The fact that the trial court labeled the defense in the order as one for failure to state a claim does not prevent us from regarding it as one for summary judgment. Dorado v. Kerr, 454 F.2d 892 (9th Cir.1972), cert. denied, 409 U.S. 934, 34 L. Ed. 2d 188, 93 S. Ct. 244 (1972).
Since in the present case the order of the trial court clearly stated it had considered affidavits and discovery in addition to the pleadings, we treat the defendants' Rule 12(b)(6) defense which that court sustained as having been converted and merged into defendants' motion for summary judgment. Plaintiff gave sufficient notice of appeal to vest the Court of Appeals with jurisdiction to consider the summary judgment issue.
Moreover, even if there had not been a merger of defendants' Rule 12(b)(6) and 56 defense and motions, plaintiff's notice of appeal gave defendants sufficient notice to confer this Court with jurisdiction over the entire cause. Rule 3(d) of the N.C. Rules of Appellate Procedure requires merely that the notice of appeal, "designate the judgment or order from which appeal is taken. . . ." The Drafting Committee's commentary to subdivision (d) makes specific reference to Rule 3(c) of the Federal Rules of Appellate Procedure and states:
Federal courts under a comparable rule have not commonly treated any but the most misleading error in the required specification as vitiating the appeal. See, e.g., Higginson v. U.S., 384 F.2d 504 (6th Cir. 1967) (wrong order designated; deemed corrected by correct identification in brief); Graves v. General Insurance Corp., 381 F.2d 517 (10th Cir. 1967) (designation of wrong court harmless under circumstances).
The Federal Rule 3(c) requires designation in the notice of appeal of "the judgment, order or part ...