concurring by separate opinion.
Albeit reluctantly, I concur in the majority’s opinion that the trial court’s consideration of matters outside the pleadings in its ruling on the motion to dismiss requires us to consider the motion as one for summary judgment. And, trial courts have become painfully aware of the stringent standard for summary judgment imposed by our Supreme Court in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
However, it is my opinion that the majority’s holding need go no further than to conclude that there are genuine issues of material fact which must be resolved by the circuit court. Despite the good intentions of my colleagues, I see little value in a commentary on the evidence currently in the record for a seasoned trial judge.