Garner v. US Bank Nat'l Ass'n

The trial court erred in conducting a hearing on the defendants' motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings, without giving the plaintiff prior notice.

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Nathaniel Garner sued US National Bank Association, Wells Fargo Home Mortgage, Inc., and McCalla Raymer, LLC collectively “the Defendants” for wrongful foreclosure, fraud, intentional infliction of emotional distress, trespass to real property, and defamation of title for actions arising out of foreclosure proceedings and an ensuing dispossessory action. The Defendants moved to dismiss Garner’s complaint, arguing, inter alia, that Garner’s claims were barred by collateral estoppel because a prior federal lawsuit dismissed similar claims on the ground that Garner lacked standing. Following a hearing, the trial court granted the Defendants’ motion, and this appeal ensued. On appeal, Garner contends that the trial court erred in granting the Defendants’ motion because it conducted a hearing on the motion without providing prior notice, and the underlying issues were not previously adjudicated on the merits. For the reasons that follow, we reverse.

As an initial matter, we consider the procedural posture of this case and the applicable standard of review. OCGA § 9-11-12 b provides in pertinent part that “if, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in OCGA § 9-11-56.” As explained below, the trial court considered matters outside the pleadings in this case. Therefore, we will treat the appealed order as one granting summary judgment to the Defendants. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 13 1 681 SE2d 717 2009. We review a trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Id.

Garner v. US Bank Nat'l Ass'n

The trial court erred in conducting a hearing on the defendants' motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings, without giving the plaintiff prior notice.

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