1The trial courts’ exercise of their discretion should be guided by considering whether

conversion of the motion will likely facilitate the disposition of the matter. 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1366, at 493 (2d ed. 1990).

FILED

September 6, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

ALLEN B. COLE, )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 95-3498-III

VS. )

) Appeal No.

) 01-A-01-9605-CH-00216

TENNESSEE BOARD OF PAROLES, )

)

Defendant/Appellee. )

CONCURRING OPINION

Even though I concur completely with Judge Lewis’s opinion, I have

prepared this separate opinion to elaborate further on the procedure whereby a

motion to dismiss for failure to state a claim upon which relief can be granted is

converted to a motion for summary 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.” 

Defendants today frequently support their Tenn. R. Civ. P. 12.02(6) motions

with factual matters not included in the pleadings. Trial courts have the discretion

either to consider or to disregard these matters,1 but if they decide to consider

them, they must treat the motion as one seeking a summary judgment. Hixson v.

Stickley, 493 S.W.2d 471, 473 (Tenn. 1973); Pacific Eastern Corp. v. Gulf Life

Holding Co., 902 S.W.2d 946, 952 (Tenn. Ct. App. 1995). Once conversion takes

place, the consideration of the motion must comply with all the procedural

requirements of Tenn. R. Civ. P. 56.

Becauseofthe significant differences between the consideration of motions

to dismiss and motions for summary judgment, it is important for trial courts to
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give the parties notice of the changed status of the motion and a reasonable

opportunity to present the material made pertinent to motions for summary

judgment by Tenn. R. Civ. P. 56. 2A James W. Moore, Moore’s Federal Practice

¶ 12.09[3] (2d ed. 1995); 5A Wright & Miller, supra note 1, § 1366, at 501.

Adequate notice of the conversion is particularly important when pro se litigants

are involved in the case. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). 

Formal notice of the trial court’s decision either to consider or to exclude

extraneous factual matters eliminates the possibility of confusion and

misunderstanding concerning the posture of the proceedings. Thus, it is preferable

for trial courts to state expressly whether they have decided to consider or to

exclude the extraneous matters. Failure to give timely formal notice is not

reversible error, however, if the opposing party had actual notice of the conversion

or was not otherwise prejudiced by the lack of formal notice. Nuclear Transp. &

Storage, Inc. v. United States, 890 F.2d 1348, 1351 (6th Cir. 1989), cert. denied,

494 U.S. 1079 (1990); 2A Moore, supra, at ¶ 12.09[3]; 5A Wright & Miller,supra

note 1, § 1366, at 506.

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

the trial court did when it fails to state expressly whether factual materials outside

the pleadings were considered or disregarded. Like Judge Lewis, I have reviewed

the January 17, 1996 order dismissing Mr. Cole’s petition and have determined

that the trial court did not consider the matters outside the pleadings submitted by

the Board of Paroles and thus disposed of the motion in accordance with Tenn. R.

Civ. P. 12.02(6) rather than Tenn. R. Civ. P. 56. 

Mr. Cole asserts that the Board of Paroles acted illegally by relying on the

seriousness of his offense to deny his application for parole. He argues that the

“seriousness of the offense” ground is unconstitutional because it lacks objective

criteria. Rather than simply attacking the intrinsic correctness of the board’s

decision, the petition challenges the constitutional sufficiency of the board’s

procedures. This is a question of law that should have been considered on the

merits by the trial court.
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____________________________

WILLIAM C. KOCH, JR., JUDGE