Redding v. Walker

Blackburn, Judge,

concurring in part and dissenting in part.

I concur in the judgment only as reached by the majority in Division 1; however, I must respectfully dissent to the majority’s holding in Division 2 and to its judgment affirming the trial court.

With respect to Division 1 of the majority, I agree that this case was properly brought as a direct appeal. A discharge in bankruptcy is an affirmative defense and proof of such defense constitutes “a bar to recovery and not merely the abatement of an action.” City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992).

The trial court and the parties dealt with the subject motion as a motion to dismiss. This Court, however, concluded that Walker’s motion to dismiss was converted into a motion for summary judgment by the trial court’s consideration of evidence outside the pleadings. Upon such determination, it became incumbent upon this Court to determine whether or not such motion for summary judgment was properly granted.

“Although the trial court may convert a motion to dismiss to a motion for summary judgment[,] where this is done there must be compliance with OCGA § 9-11-56 requiring 30 days notice and an opportunity for a hearing. A respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to thirty days to respond to the motion for summary judgment unless such notice and opportunity are waived. Since the record does not reflect any such waiver, it was error to render judgment in favor of the defendants. The judgment must be reversed, and the case remanded to provide an opportunity for the opposing party to submit evidence in opposition to the motion for summary judgment, and for an opportunity for a hearing on the motion.” (Citations and punctuation omitted.) Bonner v. Fox, 204 Ga. App. 666, 667-668 (420 SE2d 312) (1992).

In Jones v. Ward, 201 Ga. App. 757, 758 (1) (412 SE2d 576) (1991), cited by the majority, we determined that the trial court did not err in treating a motion to dismiss as a motion for summary judgment because the respondent had the opportunity to address the issues raised by the evidence introduced by the movant. In the present case, Walker’s discharge in bankruptcy was not filed with the trial court until the day the court filed its orders dismissing plaintiffs’ claims. This action gave plaintiffs no opportunity to properly respond to Walker’s motion. “OCGA § 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing. Since the motion to dismiss was converted to a motion for summary judgment[,] appellant was entitled to have the notice requirements of OCGA § 9-11-56 (c) met. Moreover, evidence in support of summary judgment must be filed thirty days before the hearing to be considered on behalf of the movant.” (Citations and punctuation omitted; emphasis supplied.) Id. at 759 (1).

Where it was this Court which for the first time dealt with the motion as one for summary judgment, we cannot fault plaintiffs for failing to enumerate the trial court’s ruling as error since the trial court did not treat the motions as ones for summary judgment. See Robertson v. U-Haul Co. of Western Ga., 208 Ga. App. 222, 223 (2) (430 SE2d 113) (1993), for a discussion of behavior constituting waiver of this issue.

Had the plaintiffs received the required notice, they would have had an opportunity to present the very evidence of automobile liability insurance coverage, the absence of which forms the basis of the majority’s opinion in Division 2. Therefore this case should be reversed and remanded to the trial court for further action consistent with the above.

I am authorized to state that Presiding Judge McMurray joins in this opinion.