Kirkland Construction Co. v. James , 39 Mass. App. Ct. 559 ( 1995 )

Brown, J.

(concurring). I fully concur in the reasoning and result reached by the majority. See Matthew 6:24. I merely wish to point out the wasted effort expended on the part of both sides, particularly the moving party, in attempting to dispose of this case under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974). All too often that course of action proves to be a huge exercise in futility, as was amply demonstrated here.

The lower court, as well as this court, would have been aided greatly if the parties had elevated this matter to another rung on the procedural ladder by filing affidavits and other appropriate materials to bring it within the more efficacious purview of a summary judgment proceeding. See Mass.R.Civ.P. 56, 365 Mass. 824 (1974).

To paraphrase my brother Justice Kass, whenever one has an opportunity “to drive a stake through the heart of a vampire” and kill it, one should surely do so. Unfortunately, rule 12(b) (6) is not even a blunt instrument and should seldom be the weapon of first choice. Rule 56 is the deadly one. See and compare Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 288 (1976). See also Romano v. Sacknoff, 4 Mass. App. Ct. 862, 863 n.2 (1976).