OCGA § 9–11–12(b) provides: “If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment ...” Once the motion has been so converted, “all parties shall be given reasonable opportunity to present all material made pertinent to [a motion for summary judgment].” Id. See also Sumner v. Dept. of Human Resources, 225 Ga.App. 91, 93(2), 483 S.E.2d 602 (1997) (“Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court's authority to do so is not unlimited.”) (citation and punctuation omitted).Although it does not appear from the record that the trial court considered any matters outside the pleadings, we are faced with an order expressly stating that it granted a motion for summary judgment.
hority, 229 Ga. 26, 27 ( 189 S.E.2d 66) (1972) ("[As] the judgment rendered is based upon an erroneous view of the law which would preclude the exercise of a discretion, a new trial results."); Ayers v. Yancey Bros. Co., 141 Ga. App. 358, 361(2) ( 233 S.E.2d 471) (1977) ("Ordinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error."); Meyers v. Glover, 152 Ga. App. 679, 683(3) ( 263 S.E.2d 539) (1979), overruled on other grounds, McCord v. Jones, 168 Ga. App. 891, 893 ( 311 S.E.2d 209) (1983) ("[J]udgments based on erroneous theories of law are generally reversed in the appellate courts."); Derbyshire v. United Bldrs. Supplies, 194 Ga. App. 840, 843(1) ( 392 S.E.2d 37) (1990) ("The right for any reason principle does not rise to save the day because a judgment based on an erroneous legal conclusion or theory is reversible error."); Sumner v. Department of Human Resources, 225 Ga. App. 91, 93-94(2) ( 483 S.E.2d 602) (1997) ("While it is a general rule that a grant of summary judgment must be affirmed if it is right for any reason [Cite], it is an equally well-established exception that a right-for-any-reason rule cannot be applied where, as in this case, it is apparent that the trial court rested its judgment upon an erroneous legal theory; in such instances the trial court commits reversible error.") These statements, repeated in many other cases as well, appear to give inconsistent guidance to the appellate courts as to the proper course to follow when the trial courts make legal errors.
Thus, the grant of summary judgment must be reversed and the case remanded so that Gomez may be given fair notice and an opportunity to respond. Sumner v. Dept. of Human Resources, 225 Ga.App. 91, 93(2), 483 S.E.2d 602 (1997). 3. Gomez argues that the trial court lacked authority to issue its Final Order because that order was entered on September 26, 2012, after Gomez filed his Notice of Appeal to this Court on September 6, 2012.
Even if the record, as it stands, could support the judge's ruling, it also shows that Wilken was never given notice that the trial court intended to rule on the merits of its claims and therefore was not provided a full and fair opportunity to respond. Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 ( 483 SE2d 602) (1997). Accordingly, because we are unable to determine the grounds for granting the motion to dismiss with prejudice and because we are unable to determine, from the record before us, whether that grant was error, the judgment in this case is vacated and the case is remanded to the trial court for further consideration and clarification of its order.
Regardless of the nomenclature, the issue before the trial court was the same: whether Poteate acted diligently in serving Rally. While we have held that a trial court erred in converting a motion to dismiss into a motion for summary judgment without notice and an opportunity to present evidence in rebuttal, Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 92-94(2) ( 483 S.E.2d 602) (1997), in this case Poteate was not deprived of notice and opportunity to respond. He responded fully to Rally's motion for summary judgment and has not shown how he was prejudiced by the court's conversion or what additional evidence he was unable to present.
Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) ( 419 S.E.2d 143) (1992); see also Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 871 (3) ( 506 S.E.2d 145) (1998). See Patriot Gen. Ins. Co., supra; Famble, supra. Compare cases where the record demonstrated that the ground was not asserted, and this court concluded that appellants had not had a full and fair opportunity to meet and controvert assertions against them, e.g., Dixon v. Metropolitan Atlanta Rapid Transit Auth., 242 Ga. App. 262, 266 (3) ( 529 S.E.2d 398) (2000); Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (2) ( 483 S.E.2d 602) (1997); Aycock, supra, 222 Ga. App. at 764. Tidwell further claims that summary judgment should not have been granted because his claim was not one of conversion, but a "complaint in equity."
Mooney v. Mooney, 235 Ga. App. 117 ( 508 S.E.2d 766) (1998). While the trial court may, on its own motion, convert a motion to dismiss into a motion for summary judgment, it must insure that the respondent to the motion has a "full and final opportunity" to controvert the assertions against him. Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (2) ( 483 S.E.2d 602) (1997). This opportunity consists of notice that the motion will be converted and an opportunity to submit evidence and be heard within 30 days. O.C.G.A. §§ 9-11-12 (b), 9-11-56; Bays v. River Oaks Construction, 244 Ga. App. 401, 402-403 (1) ( 535 S.E.2d 543) (2000).
SMITH, P. J., and PHIPPS, J., concur. See McKoon v. Jones, 214 Ga. App. 40, 42 ( 447 S.E.2d 50) (1994); Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93- 94 (2) ( 483 S.E.2d 602) (1997). See Patterson, supra.
O.C.G.A. § 9-11-12 (b). O.C.G.A. § 9-11-56; Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 92-94 (2) ( 483 S.E.2d 602) (1997).Aycock v. Calk, 222 Ga. App. 763, 764 ( 476 S.E.2d 274) (1996).
(Citations omitted; emphasis in original.) Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 92 (1) ( 483 S.E.2d 602) (1997). Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should be sustained only when (1) the allegations of the complaint disclosed with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the claim and (2) the movant established that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.