ALLEN B. COLE,                    )
                                  )
      Petitioner/Appellant,       )   Appeal No.
                                  )   01-A-01-9605-CH-00216
v.                                )
                                  )   Davidson Chancery
TENNESSEE BOARD OF PAROLES,       )   No. 95-3498-III
                                  )
      Respondent/Appellee.        )
                                                      FILED
                 COURT OF APPEALS OF TENNESSEE        September 6, 1996

                 MIDDLE SECTION AT NASHVILLE          Cecil W. Crowson
                                                     Appellate Court Clerk

     APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                    AT NASHVILLE, TENNESSEE


         THE HONORABLE ROBERT S. BRANDT, CHANCELLOR




ALLEN B. COLE, Pro Se
N.C.S.C.
7466 Centennial Boulevard
Nashville, Tennessee 37209-1052




CHARLES W. BURSON
Attorney General and Reporter

ABIGAIL TURNER
Assistant Attorney General
Civil Rights and Claims Division
404 James Robertson Parkway
Suite 2000 Parkway Towers
Nashville, Tennessee 37243
     ATTORNEYS FOR RESPONDENT/APPELLEE




                       REVERSED AND REMANDED
                                                         SAMUEL L. LEWIS, JUDGE
                                                                  1
                    MEMORANDUM OPINION
            This is an appeal by petitioner, Allen B. Cole, from the

judgment of the Chancery Court of Davidson County granting the

motion to dismiss of respondent, the Tennessee Board of Paroles

("the Board").



            Pursuant to a plea agreement, petitioner plead guilty to

second degree murder and received a sentence of fifteen years.                      In

September 1995, the Board held a hearing to determine whether to

release petitioner on parole.                     Thereafter, the Board informed

petitioner that they had decided to deny him parole because of the

seriousness of his offense.             One board member even noted the fact

that petitioner had beaten his victim to death.



            Petitioner then filed a petition for writ of certiorari

seeking a review of the Board's decision.                   Petitioner argued that

the Board's denial was arbitrary and capricious and violated his

right       to    due   process   and    equal       protection.       Specifically,

petitioner claimed the Board erred when it relied solely on the

seriousness of his offense as its basis for denying him parole.                     He

explained that the Board uses the term "seriousness of the offense"

with       such   frequency   that      the       term   lacks   any   definition   or

limitation.        Moreover, petitioner claimed it was necessary for the

Board to provide him with a more detailed statement of the reasons

for their denial.



            In response to the petition, the Board filed a motion to


       1
        Court of Appeals Rule 10(b):
       The Court, with the concurrence of all judges participating in the
       case, may affirm, reverse or modify the actions of the trial court
       by memorandum opinion when a formal opinion would have no
       precedential value. When a case is decided by memorandum opinion
       it shall be designated "MEMORANDUM OPINION," shall not be
       published, and shall not be cited or relied on for any reason in a
       subsequent unrelated case.

                                              2
dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6),

failure to state a claim upon which relief can be granted.         In

addition to the motion, the Board filed a memorandum of law and an

affidavit.    In support of its motion, the board claimed that the

petition sought to challenge the intrinsic correctness of the

Board's decision and that review of such a question was beyond the

trial court's scope of review.



          On 17 January 1996, the chancellor entered a judgment on the

motion to dismiss. The judgment stated in its entirety as follows:

            The petitioner has filed a petition for common
          law   certiorari   in   which  he  challenges   the
          correctness of a decision of the Tennessee Board of
          Paroles not to grant him parole.      The intrinsic
          correctness of decisions of the Tennessee Board of
          Paroles is not subject to judicial review by a
          petition for writ of common law certiorari.
          Accordingly,   the    case  is  dismissed   at  the
          petitioner's cost.

Thereafter, petitioner filed a notice of appeal to this court. The

issue presented for our review is whether the trial court erred

when it granted the motion to dismiss in the Board's favor.     It is

the opinion of this court that it did.



          It is well settled in Tennessee that a common law writ of

certiorari may not challenge the intrinsic correctness of an

administrative body's decision.        Just two years ago, this court

stated:

          The scope of review under the common law writ,
          however, is very narrow. It covers only an inquiry
          into   whether    the  Board   has   exceeded  its
          jurisdiction or is acting illegally, fraudulently,
          or   arbitrarily.     Conclusory   terms  such  as
          "arbitrary and capricious" will not entitle a
          petitioner to the writ.          At the risk of
          oversimplification, one may say that it is not the
          correctness of the decision that is subject to
          judicial review, but the manner in which the
          decision is reached. If the agency or board has
          reached its decision in a constitutional or lawful
          manner, then the decision would not be subject to
          judicial review.

Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.


                                   3
App. 1994) (citations omitted). Thus, the issue in this case boils

down to whether the petitioner's allegations challenge the Board's

methods or its conclusions.



       At the outset, we must discuss the affect of the Board's

affidavit.   Rule 12.02 of the Tennessee Rules of Civil Procedure

states, in pertinent part, as follows:

       [T]he following defenses may at the option of the
       pleader be made by motion in writing: . . . (6)
       failure to state a claim upon which relief can be
       granted . . . .     If, on a motion asserting the
       defense numbered (6) to dismiss for failure to
       state a claim upon which relief can be granted,
       matters outside the pleading are presented to and
       not excluded by the court, the motion shall be
       treated as one for summary judgment and disposed of
       as provided in Rule 56, and all parties shall be
       given reasonable opportunity to present all
       material made pertinent to such a motion by Rule
       56.

Tenn. R. Civ. P. 12.02 (Supp. 1995).        Nevertheless, a court can

"prevent a conversion from taking place by declining to consider

extraneous matters."     Pacific E. Corp. v. Gulf Life Holding Co.,

902 S.W.2d 946, 952 (Tenn. App. 1995).      Thus, we must determine if

the trial court considered "matters outside the pleading."



       A matter outside the pleading is "'any written or oral

evidence in support or in opposition to a pleading that provides

some substantiation for and does not merely reiterate what is said

in the pleadings.'"    Kosloff v. State Auto. Mut. Ins. Co., Ch. App.

No. 89-152-II, 1989 WL 144006, at *2 (Tenn App. 1 Dec. 1989)

(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure §

1366, at 681-82 (1969)).        In this    case, the Board filed an

affidavit with three exhibits.         The affidavit and the exhibits

provided information that petitioner had not included in his

petition.    Specifically,    it   provided   additional   details   of

petitioner's crime and his previous parole hearings.       Because the

affidavit constituted "matters outside the pleading," the only



                                   4
remaining question is whether the court considered the affidavit.



          As quoted earlier, Rule 12.02 provides that the court shall

treat a 12.02(6) motion to dismiss as a motion for summary judgment

if the court fails to exclude the additional evidence. In this

case, the court did not explicitly exclude the affidavit, but the

court's order implied that it did not consider the affidavit.

First, the court clearly based its judgment on Rule 12.02(6)

grounds, i.e., the petition stated a claim for which the court

could not grant relief.          Second, the court did not address any of

the subjects associated with summary judgment such as the degree of

factual dispute.



          Given these facts, we are of the opinion that the trial

court did not convert the motion into one for summary judgment.

Because there was no conversion, we review this case as a motion to

dismiss.     When reviewing the denial of a motion to dismiss "we

obviously are limited to the allegations in the complaint, and we

must construe the complaint liberally in favor of the plaintiff,

taking all of the allegations of fact therein as true."                      Randolph

v. Dominion Bank of Middle Tenn., 826 S.W.2d 477, 478 (Tenn. App.

1991) (citing Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn.

1975)).



          This   brings     us   back   to    the    initial   issue   of     whether

petitioner's     claim      challenged   the     correctness     of    the    board's

decision.     Petitioner claims the basis of the Board's decision,

seriousness      of   the    offense,        lacks   objective    criteria       and,

therefore, reliance solely on this basis violates due process and

equal protection.         It is petitioner's contention that the Board

must provide a more detailed explanation of the basis for its

denial and not rely on an undefined phrase.               This claim challenges



                                         5
the means used by the Board in making its decision.       Petitioner

does not ask the court to reverse the decision of the Board.

Instead, he asks the court to hold that the Board acted illegally

in that it violated petitioner's rights to procedural due process

and equal protection.    Upon making such a finding, the court would

be correct in awarding a new hearing, not in reversing the initial

decision.     Because petitioner does not challenge the intrinsic

correctness of the Board's decision, the trial court erred in

dismissing the writ.



          Therefore, the decision of the trial court is reversed, and

the cause is remanded for any further necessary proceedings.    Cost

on appeal are taxed to respondent/appellee, the Tennessee Board of

Paroles.




                                   ________________________________
                                   SAMUEL L. LEWIS, JUDGE



CONCUR:



___________________________
BEN H. CANTRELL, JUDGE



WILLIAM C. KOCH, JR., JUDGE
CONCURRING IN SEPARATE OPINION




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