James v. Town of Little Compton, Nc890333 (1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION This case is before the Court on motion of defendant Dutro for judgment on the pleadings, to which plaintiffs object. The Court has considered the memorandum filed in support of the motion and has also reviewed the travel of the case thus far, both in file content and docket entries. While the pending motion purports to be grounded on R.C.P. 12 (b)(6) (failure to state a claim upon which relief can be granted), it requires the Court to refer to material other than the pleadings. The motion becomes, therefore, one for summary judgment. Ewing v. Frank, 103 R.I. 96. But by order entered November 13, 1989 Dutro's motion "to dismiss and or for summary judgment" was denied by Mr. Justice Israel. Columbus OrnamentalIron Works, Inc. v. Martin, 103 R.I. 620 holds squarely that where a motion for summary judgment has been denied by a justice of this Court, it is error for another judge, at a later date, to grant it. The motion for judgment on the pleadings (summary judgment) should be and hereby is denied. Order to enter.