dissenting:
Today, contrary to our rules of civil procedure the majority permits trial courts to dismiss civil actions for defamation by grant of a motion for summary judgment, without permitting the opponent of such a motion the opportunity to establish whether a genuine issue of material fact exists. The majority reaches its holding after a fact-based analy*17sis, including examination of “the context” in which the statement appears and “the circumstances surrounding its publication,” maj. op. at 11. Because our rules of procedure counsel against premature dismissal on motions for summary judgment, I respectfully dissent from the majority’s opinion and its judgment. In light of the procedural posture of this case, I would affirm the judgment of the court of appeals with directions to return the case to the trial court for further proceedings.
In my opinion the trial court erred in ruling on NBC’s motion for summary judgment, after converting it from a motion to dismiss, without giving the Living Will Center (LWC) an opportunity to present affidavits, testimony, or other evidence in opposition to the defendant’s motion. I recognize that this issue was not specified for review in our grant of certiorari, see maj. op. at 7 n. 2, however, we are to review the trial court’s summary judgment order, which necessarily requires an examination of the standard applied as well as the procedure utilized by the trial court in granting that order.
The majority opinion accurately sets forth the facts regarding the claim. However, a brief review of the procedural posture surrounding the trial court’s decision to grant the motion for summary judgment is helpful. On May 9, 1991, LWC filed a forty-five page verified complaint which incorporated by reference some 25 exhibits, consisting of 65 pages of text plus a videotape of the two broadcasts which are the subject of this action. Discovery was simultaneously commenced as LWC served with the complaint a first set of interrogatories, requests for production, and requests for admissions. A second set of interrogatories was served on NBC on May 30, 1991. However, on June 20, 1991, NBC moved for a protective order and on July 1,1991, the trial court imposed a stay upon discovery by LWC, pending a ruling on NBC’s motion for a protective order. The stay order remained in effect throughout the entire course of the litigation.
Shortly after the trial court stayed discovery, NBC filed a motion to dismiss LWC’s complaint for failure to state a claim upon which relief could be granted pursuant to C.R.C.P. 12(b)(5). Without notifying the parties and without providing any opportunity to respond by affidavit or to engage in discovery, the trial court converted the Rule 12(b)(5) motion into a motion for summary judgment pursuant to C.R.C.P. 56, and granted the motion.
It is settled law that a court may not consider matters outside the allegations in the complaint when ruling on a motion to dismiss for failure to state a claim. C.R.C.P. 12(b); Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1290 (Colo.1992). If matters outside of the pleadings are presented to and not excluded by the trial court, a Rule 12(b)(5) motion shall be treated as one for summary judgment pursuant to C.R.C.P. 56. C.R.C.P. 12(b); Dunlap, 829 P.2d at 1290. Where a motion to dismiss is converted to a motion for summary judgment, the court should give notice and a reasonable opportunity to present affidavits, documentation, and all other material pertinent to a
motion made under Rule 56. C.R.C.P. 12(b); Dunlap, 829 P.2d at 1290; Wheeler v. Hurdman, 825 F.2d 257, 260 (10th. Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987); Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986); Ohio v. Peterson, 585 F.2d 454, 457 (10th Cir.1978), affirmed after remand, 651 F.2d 687, cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); Davis v. Howard, 561 F.2d 565, 571 (5th Cir.1977); see also Moore’s Federal Practice, §§ 12.09(3) & 56.-02(3).1
Without fair notice to LWC, the trial court converted the motion to dismiss to a motion for summary judgment. Regardless of whether this conversion was appropriate, see Wilier v. City of Thornton, 817 P.2d 514, 521 (Colo.1991) (finding that there are circumstances where matters outside of the pleadings have not been presented or considered by the court, where a motion to dismiss may *18still be treated as a motion for summary judgment), the trial court was then obligated to provide notice to the parties and to allow LWC an opportunity to oppose the summary judgment motion. Instead, reasoning that the discovery sought by LWC was not relevant to the grounds on which summary judgment was granted, the trial court granted the motion and found that “plaintiff has been given a reasonable opportunity to present all material pertinent to the motion.”2
A trial court’s speculation as to what information LWC might obtain through discovery had the stay been lifted to permit a free and fair opportunity to oppose the motion cannot be a valid rationale for its grant of summary judgment. In Finn v. Gunter, 722 F.2d 711 (11th Cir.1984), the Eleventh Circuit Court of Appeals was faced with a situation similar to that presented in the instant ease. The trial court converted a motion to dismiss into a motion for summary judgment and granted the motion without providing notice to the parties. On appeal, the court rejected the contention that the party opposing the motion would not have provided additional relevant information in opposition to the motion had notice been provided. The court held as follows:
Appellee argues that Finn has already provided everything that he could. Appellant says there is additional material that can and will be filed. What is important is that Finn must be given an opportunity to present every factual and legal argument available. Proper procedures must be followed. We will not speculate on what action the parties will take nor the possible ruling by the trial court. Nor do we make any comments upon the merits of the claims presented.
Id. at 713.
In my opinion, the majority’s affirmance of the trial court’s holding serves to erode the stringent procedural protections contemplated by our rules of procedure and which must be afforded a party defending against a motion for summary judgment.
Summary judgment is a “drastic remedy” and should be granted only upon a clear showing that there is not genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Peterson v. Halsted, 829 P.2d 373 (Colo.1992). Summary judgment is only proper when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo.1991). Because it results in a final decision on the merits, dismissal of an action under summary judgment bars subsequent actions on the same claim.3 Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir.1987). As a consequence, the non-moving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party. Casebolt v. Cowan, 829 P.2d 352 (Colo.1992).
Where such a drastic remedy is at stake, a trial court should resolve the issue against a full and complete factual record. Masri v. Wakefield, 602 F.Supp. 404 (D.Colo.1983). This court has previously held that a refusal to grant a reasonable continuance to permit discovery before granting summary judgment is reversible error. Miller v. First *19National Bank of Englewood, 156 Colo. 358, 399 P.2d 99, 101 (1965).
In this case, the trial court unfairly deprived LWC of the opportunity to defend itself against a judgment on the merits of the case. The record — limited by the stay — is insufficient to allow a determination as to whether there is a genuine issue of material fact. Mere argument contained in a memorandum in opposition to a motion to dismiss is a far cry from “material made pertinent” by a motion for summary judgment; the material made pertinent by the summary judgment rule includes such things as depositions, answers to interrogatories, admissions on file, affidavits and the like. Peterson, 585 F.2d at 457 (10th Cir.1978).
I am at a loss as to what authority exists to support the trial court’s grant of summary judgment premised upon speculation as to what information LWC would seek to discover. I express no opinion on the ultimate judgment of the trial court. I simply believe that summary judgment should not have been granted without affording LWC notice and an opportunity to oppose the summary judgment motion.
Accordingly, I respectfully dissent. I also join the dissent of Justice Erickson.
I am authorized to say that Justice ERICKSON and Justice KIRSHBAUM join in this dissent.
. Unlike the federal rules, the Colorado Rules of Civil Procedure do not specify how many days notice must be provided the party defending a motion for summary judgment. In most other respects, Rules 12 and 56, C.R.C.P., are virtually identical to their federal counterparts.
. Summary judgment was granted based on the trial court's determination that the overall gist of the broadcast was true and that the comments made by Dr. Marsh were not reasonably interpretable as actual assertions of verifiable fact. The trial court found that the discovery requested by LWC was relevant only to the state of mind of the reporter who relayed the story, an issue not pertinent to the reasons for the dismissal.
. Unlike a ruling on a motion to dismiss pursuant to C.R.C.P. 12(b)(5), a ruling on a motion for summary judgment is a determination on the merits of the case. As stated in Finn,
A motion to dismiss may result in a rejection of the complaint but it does not finally resolve the case. When this type of motion is before the court, counsel are generally addressing questions of law. A summary judgment, on the other hand, carries far greater impact since it results in a final adjudication of the merits. "The very intimation of morality when summary judgment is at issue assures us that the motion will be rebutted with every factual and legal argument available.”
(Citation omitted) (emphasis added).