A recent opinion of the Tennessee Court of Appeals reminds us that while ordinarily the resolution of a Rule 12 motion requires the trial judge to look only at the pleadings lest the motion be converted to one for summary judgment, there are times that he or she can consider materials outside of the pleadings and still analyze the matter under Rule 12.
In Houbbadi v. Kennedy Law Firm, PLLC, No. M2022-01166-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2024), said
[n]ormally, “[i]f matters outside the pleadings are presented in conjunction with either a Rule 12.02(6) motion or a Rule 12.03 motion and the trial court does not exclude those matters, the court must treat such motions as motions for summary judgment and dispose of them as provided in Rule 56.” Patton v. Est. of Upchurch, 242 S.W.3d 781, 786 (Tenn. Ct. App. 2007). Nonetheless, courts may consider items subject to judicial notice without converting a motion to dismiss to a motion for summary judgment. See Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 74 (Tenn. Ct. App. 2016) (citing Haynes v. Bass, No. W2015-01192-COA-R3-CV, 2016 WL 3351365, at *4 (Tenn. Ct. App. June 9, 2016)); see also Coffee Cnty. v. Spining, No. M2020-01438-COA-R3-CV, 2022 WL 168145, at *5 n.4 (Tenn. Ct. App. Jan. 19, 2022), perm. app. denied (Tenn. May 18, 2022).
Id. at *8, fn. 3.
Here is another summary of several other cases where the court has taken judicial notice of information without converting a motion to dismiss into a motion for summary judgment:
Courts have often taken the view that “[a] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment[, b]ut a court cannot take judicial notice of disputed facts contained in such public records.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). “Courts may consider public records for the truth of the statements contained within them only when the ‘contents prove facts whose accuracy cannot reasonably be questioned.’ ” Elec. Merch. Sys. LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023); Welch v. Santos, No. 2:21-cv-08691-MEMF-KSx, 2022 WL 2125146, at *2 (C.D. Cal. Mar. 22, 2022) (“When taking public records under notice, the Court may only do so ‘not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.’ ”).
State ex rel Harmon v. Trinity Industries, Inc., 2023 WL 3959887 at *19, fn. 30 (Tenn. Ct. App. June 13, 2023).
Indeed, the Trinity Industries case provides us with a nice statement of the general rule on this issue:
Without need of conversion to summary judgment, courts have appropriately considered “matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.” Vanwinkle v. Thompson, No. M2020-01291-COA-R3-CV, 2022 WL 1788274, at *3 (Tenn. Ct. App. June 2, 2022); Felker v. Felker, No. W2019-01925-COA-R3-CV, 2021 WL 3507745, at *4 (Tenn. Ct. App. Aug. 10, 2021); W. Exp., Inc. v. Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV, 2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009); Ind. State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009).
For example, in addressing the exceptions to the general rule, this court concluded in Indiana State District Council of Laborers v. Brukardt that the trial court had properly considered a proxy statement and certificate of incorporation as public records subject to judicial notice29 without need to convert the action to a summary judgment but did caution that “[o]bviously the proxy statement is to only be considered for what it says, not for the truth of the information in the statement.” 2009 WL 426237, at *9. This court in the same case also concluded that the trial court had erred, however, by considering newspaper articles and press releases without converting the matter to a summary judgment where the materials brought “before the trial court information such as: the shareholders voted ‘overwhelmingly’ for the merger; the price was competitive in comparison to a recent merger; the sales price was a 39.5% premium over the average market closing over the prior year; and the sales price was extremely attractive.” Id. In Western Express, Inc. v. Brentwood Services, Inc., this court concluded that a settlement agreement between the Commissioner of the Tennessee Department of Commerce and Insurance acting as a liquidator and an administrator of a trust “was properly considered as it is a public record of which the court could take judicial notice. As part of the record in the liquidation action, which Plaintiff references in his Complaint, the trial court did not err by considering the Settlement Agreement when deciding whether to dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be granted.” 2009 WL 3448747, at *3.This court similarly found conversion to summary judgment was unnecessary in Singer v. Highway 46 Properties, LLC, finding the trial court acted appropriately in considering “the following public records in addition to the complaint: (1) the quitclaim deed in which Summers conveyed the property to Highway 46; and (2) Highway 46’s Articles of Organization and annual reports.” No. M2013-02682-COA-R3CV, 2014 WL 4725247, at *3 (Tenn. Ct. App. Sept. 23, 2014). In Belton v. City of Memphis, this court determined that consideration of a contract that was required by rule to be attached to the complaint, but which had not been, did not convert the action to a summary judgment but that consideration of a letter, which was not included as part of the plaintiff’s complaint and was purportedly sent by the private business regarding termination of the disputed contact, did require conversion. No. W2015-01785-COA-R3-CV, 2016 WL 2754407, at *4 (Tenn. Ct. App. May 10, 2016). When a trial court considered affidavits and forensic evidence in a condonation defense in Swaney v. Swaney, this court concluded that the action should have been converted from a motion to dismiss to summary judgment. No. W2005-00156-COA-R3CV, 2005 WL 3447694, at *3 (Tenn. Ct. App. Dec. 16, 2005).
FN 29: Judicial notice has been employed in variety of contexts. In Johnston v. Johnston, this court took judicial notice of the United States Census Bureau official website to determine the population of a county. No. E2013-00525-COA-R3CV, 2014 WL 890758, at *22 (Tenn. Ct. App. Mar. 6, 2014); see Hicks v. Seitz, No. E2014-02225-COA-R3-CV, 2015 WL 5602285, at *5 (Tenn. Ct. App. Sept. 23, 2015) (same). Likewise, this court has taken judicial notice of the position of a public official obtained from an official website. Flade v. City of Shelbyville, No. M2022-00553-COA-R3-CV, 2023 WL 2200729, at *1 (Tenn. Ct. App. Feb. 24, 2023) (taking judicial notice of the Shelbyville City Council website listing a defendant’s association with the Bedford County Listening Project); State ex rel. Williams v. Woods, 530 S.W.3d 129, 138 (Tenn. Ct. App. 2017) (judicial notice that a judicial officer was “listed as a juvenile magistrate on the website maintained by the Tennessee Administrative Office of the Courts”); In re Catherine J., No. W2017-00491-COA-R3-PT, 2018 WL 618703, at *6 (Tenn. Ct. App. Jan. 30, 2018) (same). In State v. Springer, we took judicial notice that a facility was run by Corrections Corporation of America. No. W2010-02153-CCA-R3-CD, 2012 WL 603820, at *1 (Tenn. Crim. App. Feb. 16, 2012), rev’d on other grounds by State v. Springer, 406 S.W.3d 526 (Tenn. 2013). A Google map was judicially noticed when there was no argument it was unreliable. Total Garage Store, LLC v. Moody, No. M201-901342-COA-R3-CV, 2020 WL 6892012, at *10–11 (Tenn. Ct. App. Nov. 24, 2020). Furthermore, the Tennessee Supreme Court has taken judicial notice of the contents of an order obtained through the Davidson County Chancery Information Access website. Moore v. Lee, 644 S.W.3d 59, 61 (Tenn. 2022).
Id. at 17 – 18.