1 The trial cou rts’ exercise of their discretion should be guided by considering whe ther conve rsion of the motion will likely facilitate the disposition of the matter. 5A Charles A. Wright & Arthur R. Miller, Federal P ractice and Procedure § 1366, at 493 (2d ed. 1990).



# FILED

September 6, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

ALLEN B. COLE, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 95-3498-III VS. ) ) Appeal N o. ) 01-A-01- 9605-CH- 00216 TENNESSE

E BOARD OF PAROLES, ) ) Defendant/Appellee. )



## CONCUR RING OPIN ION

Even though I conc ur complet ely with Ju dge Lew is’s op ini on, I have prepared this separate opinion t o elabora te furthe r on t he procedu

re wher eby a motionto dismiss f

or failur e to state a claim upon which relief can be granted is converted to a motion f

or summar

y judgment. Tenn. R . Civ. P. 12.02(6) requires this conversion whenever “matters outside the pleading are presented to and not excluded by the [trial] court.”

Defenda nts tod ay frequent

ly support thei r Tenn. R. Civ. P. 12.02 (6) motions withfactual matters not included in the plea

dings. Trial c ourts have the discretion either to consider or t o disregar d these ma

tters, 1 but if they decide to consider them, they must tr

eat the mo tion as one s eeking a summary j udgment. Hixson v. Stickley, 493 S.W. 2d 471, 473 ( Tenn. 197 3); Pacific Eastern C orp. v. G ulf Life Holding Co., 902 S.W. 2d 946, 952 (Tenn . Ct. A pp. 1995). Once co nversion takes place, the conside

ration of t

he motion mu s t comply with all the procedural requirem ents of Tenn. R. C iv. P. 56

.

Because of the signi ficant differences between the consideration of mo tion s to dismiss and motions f

or sum mary judgm

ent, it is important

for tria l courts to-2-

give the p arties not

ic e of the c hanged stat

us of the mo tion and a r easonable opportunityto present

the mater

ial made p ertinent t

o motions for summ ary judgment by Tenn. R. Civ. P. 56. 2A James W. Moo re, Moore’s Federal Practice ¶ 12.09[3] (2d ed. 199 5); 5A Wr ight & Miller, supra note 1, § 13 66, at 501. Adequate notice of the conver sion is part

icularly i mportant when pro se litigants are involv ed in the ca se. Neal v. Kelly , 963 F.2d 45 3, 456 (D.C. Cir. 1 992).

Formal notice of the trial court’s decision either to consider or to exclu de extraneou s factual matters eliminates the possibili ty of confu sion and misunderst

and ing concerning the posture of the proceedings. Thus, it is preferab l e for trial courts to state expressly whether they have d ecided to co nsider or t o excludethe extra neous m atters. Failure to give time ly formal

notice is no t reversib le error, however , if the opposing p arty had actua l notice of the conver sion

or was not oth erwise

prejudiced by the lackof formal no tice. Nuclear Tr ansp. & Storage, Inc. v. United States , 890 F.2 d 1348, 1351 ( 6th Cir. 1989), cert. de nied, 494 U.S. 1079 (19 90); 2A Moo re, supra , at ¶ 12. 09[3]; 5A Wright & Miller, supra note 1, § 136 6, at 506.

We must look to the trial court’s decision and the record to determine what the trial cour

t did when i t fails to s tate expr essly whether

factual materia

ls outside the pleadings were consid ered or dis regarded. Like Judge Lewis, I have reviewed the January 17, 1996 order dismissing Mr. Cole’ s p et ition and have determined thatthe trial

court did no t consider

the matte rs outside t

he pleading s submitted b y the Board of Paroles and thus disposed of the motion in accordance with Tenn. R. Civ. P. 12.02 (6) rather th an Tenn. R. Civ. P. 5 6.

Mr. Cole asserts thatthe Board of Parol es acted i llegally by relying on t he seriousnes s of his off

ense to deny

his applica

tion for parole. He argu es that the “seriousne ss of

the offense” ground is unconstitutional because i t lacks obje ctive criteria. Rather t

han simply a

ttacking the

intrinsic c orrectne ss o f the board’s decision, the petitio n challenge s the consti tu tional sufficiency of the board’s procedure s. This is a question of l aw that sh ould have be en consider ed on the merits by t

he trial c ourt.-3- _________________

___________ WILLIAM C. KOCH, JR., JUDGE