      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.
                                                    )
                                                    )                      FILED
                                                                          September 6, 1996
                         CONCURRING OPINION                               Cecil W. Crowson
                                                                         Appellate Court Clerk

       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.


       Because of the significant differences between the consideration of motions
to dismiss and motions for summary judgment, it is important for trial courts to


       1
        The 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).
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




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