Gatecliff v. Great Republic Life Ins. Co
In Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (App. 1987), the Court reversed the superior court's order granting a motion to dismiss because the court relied on an affidavit attached to the motion after it initially had advised the parties that it would not consider the affidavit. 154 Ariz. at 508-09, 744 P.2d at 35-36.
Under those circumstances, we held the court erred by failing to permit the plaintiff an "adequate chance" to rebut the affidavit. Id.
Because Rule 12(b) requires the plaintiff be permitted to offer matters pertinent to a Rule 12(b)(6) motion that presents material outside the complaint, we noted that the rule necessarily "includes the right to some indication from the court that it is treating the Rule 12(b)(6) motion as one for summary judgment." Id. at 508, 744 P.2d at 35.