dissenting.
I respectfully dissent from the majority opinion for the following reasons. To determine if a complaint is sufficient to withstand a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), the trial court must “ascertain ‘whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a *647claim upon which relief may be granted under some legal theory.’ ” Plummer v. Community Gen. Hosp. of Thomasville, Inc., 155 N.C. App. 574, 576, 573 S.E.2d 596, 598 (2002) (citation omitted), disc. review denied, 357 N.C. 63, 579 S.E.2d 392 (2003). “When considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiffs recovery.” Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991).
The sole purpose of a motion pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) is “to test the legal sufficiency of the pleading against which [the motion] is directed.” Azzolino v. Dingfelder, 71 N.C. App. 289, 295, 322 S.E.2d 567, 573 (1984), rev’d. in part and aff’d. in part, 315 N.C. 103, 377 S.E.2d 528 (1985), cert. denied, 479 U.S. 835, 93 L. Ed. 2d 75 (1986). Where a defendant asserts, pursuant to Rule 12(b)(6), that a plaintiffs complaint has failed to state a claim for which relief is available and where the trial court considers
matters outside the pleading ... [which were] not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
N.C.G.S. § 1A-1, Rule 12(b).
In the case before this Court, the trial court stated in its order dismissing plaintiffs claims under Rule 12(b)(6), that it “considered the pleadings, the Motion to Dismiss, the Motion to Reconsider And/Or Amend, Plaintiffs Request to Certify, the arguments of the parties and the applicable law.” Defendant’s motion was directed solely at plaintiff’s complaint and for the trial court to consider other pleadings is contrary to the function of Rule 12(b)(6). Based on the trial court’s order, I conclude the trial court considered matters in addition to the allegations in the complaint and defendant’s motion to dismiss was thereby converted into one for summary judgment. N.C.G.S. § 1A-1, Rule 12(b).
Plaintiff was not provided, upon conversion of the motion from a 12(b)(6) motion to a summary judgment motion, a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” N.C.G.S. § 1A-1, Rule 12(b). Because plaintiff was not afforded a reasonable opportunity to oppose the summary judgment motion, as in Locus, I would remand the case to the trial *648court in order that plaintiff be permitted to present evidence in opposition to the motion for summary judgment. Locus, 102 N.C. App. at 528, 402 S.E.2d at 866.