Cecily Considine v. George Murphy

• Court: Court of Appeals of Georgia
• Decided: March 13, 2013
• Docket: A12A1674
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

March 13, 2013

In the Court of Appeals of Georgia A12A1674. CONSIDINE v. MURPHY & McINVALE, P.C.

BARNES, Presiding Judge.

Cecily Considine filed suit against George W. Murphy and Murphy &

McInvale, P.C. (collectively, “Murphy”), alleging that Murphy committed

malpractice while serving as the receiver of a business partly owned by Considine.

Along with his answer, Murphy filed a motion to dismiss, arguing that he was a court-

appointed receiver and was therefore immune from suit. Two days later, the trial court

signed an order granting the motion to dismiss, finding that “because Defendants

were acting in their capacity as a court appointed receiver, they are entitled to official

immunity.” The order was filed with the clerk of court six days after that. Considine

appeals, arguing among other things that the trial court violated due process by

dismissing the action without giving her notice and an opportunity to respond. We agree that the trial court erred in ruling on the motion to dismiss without giving

Considine an opportunity to respond, and therefore reverse and remand for further

proceedings consistent with this opinion.

We review de novo a trial court’s order dismissing a complaint. Bonner v.

Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009).

When the sufficiency of a complaint is questioned, the allegations in the complaint must be construed in the light most favorable to the plaintiff and with all doubts resolved in the plaintiff’s favor. Unless the allegations when so viewed disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts, the motion to dismiss should not be granted.

(Citation and punctuation omitted.) Vautrot v. West, 272 Ga. App. 715, 720 (3) (613

SE2d 19) (2005). “If, within the framework of the complaint, evidence may be

introduced which will sustain a grant of the relief sought by the claimant, the

complaint is sufficient and a motion to dismiss should be denied.” Anderson v. Flake,

267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

Here, Considine alleged that Murphy breached his contract of engagement and

his fiduciary duty to the business for which he served as the receiver, acted with gross

negligence, and committed willful and wanton misconduct. Murphy moved to dismiss

2 the complaint on the grounds that the court lacked subject matter jurisdiction under

OCGA § 9-11-12 (b) (1) and that Considine failed to plead fraud with particularity

under OCGA § 9-11-9 (b). The trial court found that Murphy was entitled to official

immunity from suit as a court-appointed receiver, citing Cameron v. Lang, 274 Ga.

123 (2001), and dismissed the complaint.

Considine contends on appeal that the trial court violated her right to due

process by ruling on the motion to dismiss before 30 days passed and without giving

her a chance to respond. A trial court generally should allow a party 30 days to

respond to a motion and to any evidence submitted in support thereof. See Uniform

Superior Court Rule 6.2. “Where evidence is not required, a court has the discretion

to rule on a motion to dismiss before the 30 days required by USCR 6.2 expires.

Phillips v. McCroskey, 234 Ga. App. 87, 88 (2) (506 SE2d 388) (1998).” Dearing v.

State, 243 Ga. App. 198, 203 (2) (532 SE2d 751) (2000). While a trial court has the

discretion to rule before 30 days after the motion was filed; however, it must still

afford the plaintiff notice and an opportunity to be heard first. In Kidd v. Unger, 207

Ga. App. 109, 110-11 (2) (427 SE2d 82) (1993), for example, we found no error in

the trial court’s ruling on the defendant’s motion to dismiss without waiting 30 days

after the motion was filed, because the court did not consider matters outside the

3 pleadings but ruled “solely on the issue of subject matter jurisdiction, a matter

contained wholly within the purview of the pleadings.” In that case, however, the trial

court held a hearing before dismissing the complaint, and the appeal does not address

any issues of notice or evidence. See id.

Murphy argues that the trial court was authorized to dismiss the complaint

without giving Considine an opportunity to respond because in Considine’s first

complaint against him, the trial court held a hearing on the issue of whether he was

a court-appointed receiver entitled to immunity, but Considine dismissed that

complaint before the trial court ruled. Thus, Murphy argues, even if Considine had

been given an opportunity to respond to the motion to dismiss in this case, “it would

not have changed the state of the record or the disposition of dismissal.” Further, he

asserts, the trial court in this case was the trial court that appointed Murphy to be the

receiver in the underlying case, and therefore, even if she had been given notice and

an opportunity to respond, nothing she could say would have changed the outcome.

The record in this case, however, contains only documents related to the case

that was dismissed. “Because this court cannot consider factual allegations in a brief

which are not supported by the record, we cannot consider [Murphy’s] claims.”

D.P.S. Indus. v. Safeco Ins. Co. of Am., 210 Ga. App. 289, 290 (1) (435 SE2d 762)

4 (1993). The facts established by the appellate record before us are that Considine filed

a complaint, Murphy answered and moved to dismiss the complaint, and the trial

court granted the motion without giving Considine notice or an opportunity to

respond. Given the record in this case, the trial court erred in ruling on the motion to

dismiss less than 30 days after it was filed without giving Considine notice and an

opportunity to be heard.1

Accordingly, we reverse the trial court’s grant of the motion to dismiss and

remand for further proceedings consistent with this opinion.

Judgment reversed. McFadden and McMillian, JJ., concur.

1 We note that the parties sought to amend the appellate record with documents from the previous case that Considine dismissed, but we denied the motions because those documents were not part of the trial court record in this case.