concurring in the result.
With regard to the appeal of the property owners (Stines), I concur because:
(a) Judge Godwin obviously considered matters outside the pleadings in ruling on the builder’s (Satterwhite’s) Rule 12(b)(6) motion, and therefore, treated the motion “as one for summary judgment and disposed of [it] as provided in Rule 56.” G.S. 1A-1, Rule 12(b);
(b) The averments in the affidavit of the property owners set forth genuine issues of material fact whether the defects in construction were hidden by the methods of construction from a reasonable inspection; and
*617(c) Judge Preston had no jurisdiction to grant summary judgment in favor of the builder since another superior court judge, Judge Godwin, had already denied the builder’s motion for summary judgment.
With regard to the appeal of the builder, Satterwhite, I agree that no dismissal was warranted based on the failure of the homeowner to file a compulsory counterclaim, and I concur because:
(a) The subject matter of the counterclaim was acquired by the homeowner after he had served his initial pleading. See Driggers v. Commercial Credit Corp., 31 N.C. App. 561, 230 S.E. 2d 201 (1976); and
(b) The property owners sought, on different occasions, to amend their pleadings to allege a counterclaim but withdrew their motions as a result of action taken by the trial court.