Summary
concluding that where it was clear that the trial court considered matters outside the complaint, the appellee's motion to dismiss, based on the expiration of the statute of limitation, should have been treated as one for summary judgment and holding that the trial court's failure to follow the procedures appropriate to summary adjudication required reversal
Summary of this case from Warehouseboy Trading, Inc. v. Gew Fitness, Llc.Opinion
62682.
DECIDED JANUARY 8, 1982.
Damage to property. Fulton Superior Court. Before Judge Alverson.
Richard L. Chambers, Speros D. Homer, Jr., for appellants.
Paul Webb, Jr., Wayne Grant, David E. Betts, for appellee.
At a hearing set for jury selection, appellee made an oral motion to dismiss based on the statute of limitation. The trial court granted the motion. Appellants contend the trial court erred in basing its decision on matters outside the pleadings. We agree.
From the transcript of the hearing held pursuant to appellee's oral motion to dismiss, "... it is clear that the trial court considered matters outside the complaint. The appellee['s] motion should therefore have been treated as one for summary judgment and disposed of as provided in Code Ann. § 81A-156. [Cit.]" Hoffman v. PMC Development Co., 238 Ga. 258 ( 232 S.E.2d 541). The failure to follow the procedures appropriate to summary adjudication require reversal of the judgment.
Judgment reversed. Birdsong and Sognier, JJ., concur.