Court of Appeals reading-challenged

The Mississippi Court of Appeals has held that a trial court isn't required to give notice of converting a Rule 12(b)(6) motion to a Rule 56 motion. That's interesting, since just recently in State v. Bayer Corp., the MSSC certainly seemed to think that was the case.

I am not impressed by the COA's inability to read Rule 12:

Although couched as one under Rule 12(b)(6), Enterprise’s original motion contained exhibits outside the pleadings. The instant case, therefore, resembles Davis rather than Sullivan; in Davis, the “conversion” stemmed not from the trial court’s decision to convert the motion in response to evidence offered at the hearing, but from the original motion itself.

Uh, no. Rule 12 says that the conversion takes place if additional matters are submitted and not excluded by the trial court. It's the trial court's action (or inaction), not any action of the parties, that converts the motion.

Bayer:

Here, as in Wilbourn and Tullos, the trial court considered matters outside the pleadings when it took into account the 2001 Settlement Agreement. Having done so, the trial court was required to convert Bayer’s Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. The record shows that the trial court failed to do so, depriving the State of actual notice of its intent to rule on the matter as a motion for summary judgment. This Court’s recent interpretation of Rule 12(b)(6) and Rule 9(b) in Wilbourn and Tullos and a plain reading of Rule 12(b) establish this as error.

Judge Griffis quite correctly dissents, but doesn't cite Bayer -- no biggie, since Sullivan v. Tullos makes it crystal-clear, but still, an odd omission.

The COA goes on to say that the parties *treated* the motion as if it were under Rule 56:

The original motion was filed on March 3, 2008, and a response from the Robisons followed on March 14. Although styled a response to the motion to dismiss, it too, in substance, was a response to a summary judgment motion. The Robisons attached additional exhibits outside the pleadings – an affidavit and excerpts from a deposition – and they urged the court to find a question of fact for the jury. Enterprise’s response, filed on March 24, again urged the Court to consider matters outside the pleadings. A notice of hearing on the motions was filed on March 31, and the hearing was set for and held on July 1, 2008, three months after the notice of the hearing and almost four months after exhibits outside the pleadings were offered with the initial motion. Two weeks after the hearing, the Robisons offered a supplemental response, purporting to enumerate undisputed facts and urging the trial court to find “genuine issues of material fact.” This is clearly addressed to a summary judgment motion; it does not
resemble a response to a motion to dismiss for failure to state a claim under Rule 12(b)(6).

That is just dumb. The Robisons' attorney doubtless was afraid that the court *would* convert the motion, but he had no way of knowing it *would* do so unless and until it gave notice, which it did not.