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SINNING v. CLARK

No. COA94-1106.

459 S.E.2d 71 (1995)

119 N.C. App. 515

Mark A. SINNING and Wife, Kathy Sinning, Plaintiffs-Appellants, v. John F. CLARK, Code Administrator for the City of New Bern Inspection Department, in his Official Capacity and as Agent for the City of New Bern, North Carolina, Linwood E. Toler, Building Inspector for the City of New Bern Inspection Department, in His Official Capacity and as Agent for the City of New Bern, North Carolina, and the City of New Bern, North Carolina, Defendants-Appellees.

Court of Appeals of North Carolina.

Decided July 18, 1995.

Attorney(s) appearing for the Case

White & Allen, P.A. by John P. Marshall and John C. Archie, Kinston, for plaintiffs-appellants.

Sumrell, Sugg, Carmichael & Ashton, P.A. by Rudolph A. Ashton, III, Cynthia L. Turco and Scott C. Hart, New Bern, for defendants-appellees Clark and Toler.

Ward, Ward, Willey & Ward by A.D. Ward, New Bern, for defendant-appellee, City of New Bern.

JOHN C. MARTIN, Judge.

I.

Although the trial court's order purported to grant summary judgment in favor of defendants, the parties have stipulated that no extraneous materials were before the court; thus, defendants' Rule 12(b)(6) motion was not converted into one for summary judgment and the appropriate standard of review is that applicable to a Rule 12(b)(6) ruling. Whitfield v. Winslow, 48 N.C. App. 206,

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