context: In the hearing on the motion to dismiss, the attorneys for the parties elaborated on the underlying factual basis for the complaint in explanation of the asserted grounds for dismissal. However, no stipulation of fact was made, no affidavit or other evidence was submitted, and the transcript does not indicate that the court converted the motion into a motion for summary judgment, as contemplated by Rule 56, SCRCP.
citation_a.signal: see
citation_a.parenthetical: where there is no stipulation, a representation of fact by counsel in written briefs, memoranda or made during oral argument, may not be considered by the court where it is unsupported by the record
citation_a.sentence: See Cobb v. Benjamin, 325 S.C. 573, 482 S.E.2d 589 (Ct.App.1997) (where there is no stipulation, a representation of fact by counsel in written briefs, memoranda or made during oral argument, may not be considered by the court where it is unsupported by the record); see also Brown, 291 S.C. at 367, 353 S.E.2d at 698-99 (“[T]he trial court may treat a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleadings if the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e) of the South Carolina Rules of Civil Procedure.”).
citation_b.signal: see also
citation_b.identifier: 353 S.E.2d 698, 698-99
citation_b.parenthetical: "[T]he trial court may treat a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleadings if the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e
citation_b.sentence: See Cobb v. Benjamin, 325 S.C. 573, 482 S.E.2d 589 (Ct.App.1997) (where there is no stipulation, a representation of fact by counsel in written briefs, memoranda or made during oral argument, may not be considered by the court where it is unsupported by the record); see also Brown, 291 S.C. at 367, 353 S.E.2d at 698-99 (“[T]he trial court may treat a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleadings if the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e) of the South Carolina Rules of Civil Procedure.”).