Aycock v. Calk

476 S.E.2d 274, 222 Ga. App. 763, 96 Fulton County D. Rep. 3400, 1996 Ga. App. LEXIS 999

• Court: Court of Appeals of Georgia
• Decided: September 16, 1996
• Docket: A95A1575
• Status: Published

Opinions

Ruffin, Judge.

Walter and Joan Aycock sued Laura and Thomas Calk for injunctive relief and damages allegedly arising out of an ongoing feud between the parties. The complaint asserted causes of action for stalking, deprivation of the Aycocks’ right of privacy, and assault and battery. The Calks answered the complaint and counterclaimed for damages allegedly resulting from stalking, slander, deprivation of the full use and enjoyment of their property, and assault and battery. The Aycocks moved the court to strike the Calks’ counterclaim on the ground that the Calks were required to assert their claims in an earlier action between the parties and that the claims were therefore barred by the doctrines of res judicata and/or collateral estoppel. The trial court granted the Aycocks’ motion and ruled, sua sponte, that because the Aycocks’ complaint arose out of the same set of facts which formed the basis of the earlier action, it too was subject to dismissal. The trial court accordingly dismissed the Aycocks’ complaint. The Aycocks appeal from that order, asserting that the trial court did not have the authority to dismiss their complaint sua sponte. We agree and therefore reverse.

It is clear that in dismissing the Aycocks’ complaint, the trial court considered matters outside the pleadings, thereby converting the order into one for summary judgment. OCGA § 9-11-12 (b). See Allera Corp. v. Derby Cycle Corp., 210 Ga. App. 564 (1) (436 SE2d 753) (1993). “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. The grant of summary judgment must be proper in all other respects. [Cit.] ‘This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. [Cits.]’ [Cit.]” Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). “ ‘The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.’ . . . [Cit.]” (Emphasis supplied.) Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143) (1992).

While the record as it stands may support the trial judge’s ruling, it also shows that the Aycocks were not notified that the trial court intended to rule upon the merits of their claim and that they were not provided a full and final opportunity to respond to the court’s sua sponte review. The notice requirement is clear, simple to meet, and necessary. We should not muddy the waters by assuming a party had notice where the record shows none was given. We are thus required to remand the cause so that the Aycocks may be given such fair notice and an opportunity to respond.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and. Smith, JJ, concur. Beasley, C. J., dissents.