Mancuso v. Gmac Mortgage, LLC

Court of Appeals of Georgia

Mancuso v. Gmac Mortgage, LLC

700 S.E.2d 874, 305 Ga. App. 842, 2010 Fulton County D. Rep. 2942, 2010 Ga. App. LEXIS 828

CourtCourt of Appeals of Georgia

DecidedSeptember 8, 2010

DocketA10A0950

StatusPublished

Cited by1 cases

This text of 700 S.E.2d 874 (Mancuso v. Gmac Mortgage, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mancuso v. Gmac Mortgage, LLC, 700 S.E.2d 874, 305 Ga. App. 842, 2010 Fulton County D. Rep. 2942, 2010 Ga. App. LEXIS 828 (Ga. Ct. App. 2010).

Pincite

Opinion

SMITH, Presiding Judge.

Peter Mancuso appeals pro se from a trial court’s order granting GMAC Mortgage, LLC’s motion to dismiss. Mancuso asserts the trial court erred by granting GMAC’s-motion eight days after it was filed without giving him thirty days to respond or shortening the time to respond with an order pursuant to Uniform Superior Court Rule 6.2. In its brief, GMAC takes the position that it “does not oppose remand to the trial court for further briefing on [its] motion.” For the reasons stated below, we vacate and remand.

The record shows that GMAC submitted evidence outside the pleadings in support of its motion to dismiss, and based on this evidence, moved in the alternative for summary judgment.

If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to and not excluded by the trial court, the motion is treated as one for summary judgment. In such a case, the court must give the parties “reasonable opportunity to present all material made pertinent” to a summary judgment motion. Specifically, the court must give the nonmoving party at least 30 days notice to prepare evidence in opposition to summary judgment.

(Citations and footnotes omitted.) Bynum v. Horizon Staffing, 266 *843 Ga. App. 337, 338 (1) (596 SE2d 648) (2004). Because the trial court’s order stated that it considered the evidence submitted, it erred by failing to give Mancuso 30 days to respond with evidence showing that GMAC was not entitled to summary judgment in its favor. We therefore vacate the order granting GMAC’s motion to dismiss and remand this case to the trial court with direction to allow Mancuso 30 days to respond to GMAC’s motion.

DECIDED September 8, 2010. Peter B. Mancuso, pro se. Troutman Sanders, Kelly L. Atkinson, Alan W Loeffler, for appellee.

Judgment vacated and case remanded with direction.

Mikell and Adams, JJ., concur.

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SMITH, Presiding Judge.

Peter Mancuso appeals pro se from a trial court’s order granting GMAC Mortgage, LLC’s motion to dismiss. Mancuso asserts the trial court erred by granting GMAC’s-motion eight days after it was filed without giving him thirty days to respond or shortening the time to respond with an order pursuant to Uniform Superior Court Rule 6.2. In its brief, GMAC takes the position that it “does not oppose remand to the trial court for further briefing on [its] motion.” For the reasons stated below, we vacate and remand.

The record shows that GMAC submitted evidence outside the pleadings in support of its motion to dismiss, and based on this evidence, moved in the alternative for summary judgment.

If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to and not excluded by the trial court, the motion is treated as one for summary judgment. In such a case, the court must give the parties “reasonable opportunity to present all material made pertinent” to a summary judgment motion. Specifically, the court must give the nonmoving party at least 30 days notice to prepare evidence in opposition to summary judgment.

(Citations and footnotes omitted.) Bynum v. Horizon Staffing, 266 *843 Ga. App. 337, 338 (1) (596 SE2d 648) (2004). Because the trial court’s order stated that it considered the evidence submitted, it erred by failing to give Mancuso 30 days to respond with evidence showing that GMAC was not entitled to summary judgment in its favor. We therefore vacate the order granting GMAC’s motion to dismiss and remand this case to the trial court with direction to allow Mancuso 30 days to respond to GMAC’s motion.

DECIDED September 8, 2010. Peter B. Mancuso, pro se. Troutman Sanders, Kelly L. Atkinson, Alan W Loeffler, for appellee.

Judgment vacated and case remanded with direction.

Mikell and Adams, JJ., concur.

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Bluebook (online)

700 S.E.2d 874, 305 Ga. App. 842, 2010 Fulton County D. Rep. 2942, 2010 Ga. App. LEXIS 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mancuso-v-gmac-mortgage-llc-gactapp-2010.

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