The opinion
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
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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
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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.
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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.
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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
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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
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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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