Richard C. Fitzpatrick filed a complaint asserting claims for legal malpractice and intentional infliction of emotional distress against Anthony L. Harrison in connection with Fitzpatrick’s divorce. In response, Harrison filed a motion to dismiss the complaint on the grounds that 1 the claims were barred by the doctrine of collateral estoppel; 2 the complaint failed to state a claim for legal malpractice; 3 the claims were barred by the applicable statute of limitation; and 4 the claim for intentional infliction of emotional distress was barred because OCGA § 51-7-80 et seq. is the exclusive remedy for claims arising out of the abuse of the legal process. Fitzpatrick opposed Harrison’s motion and requested an oral hearing. But the trial court granted the motion to dismiss without a hearing, ruling that the complaint failed to state a claim for legal malpractice and that the claim for intentional infliction of emotional distress was time-barred. On appeal, Fitzpatrick asserts, inter alia, that Harrison converted his motion to dismiss into a motion for summary judgment by attaching evidence in support and that the trial court, therefore, erred in ignoring Fitzpatrick’s request for a hearing on the motion as required under OCGA § 9-11-56 and U. Sup. Ct. R. 6.3. We agree.
“If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, ‘the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by’ that code section. O.C.G.A. § 9-11-12 b.” Punctuation omitted. Cox Enters. v. Nix , 273 Ga. 152, 153 538 SE2d 449 2000. Here it is apparent that the trial court considered matters outside the pleadings in ruling upon Harrison’s motion. For example, the trial court’s findings of fact recite that Harrison recommended mediation to Fitzpatrick and that the parties did not execute a fee or service agreement. These are not matters contained in the pleadings filed in this action ; rather, they are found in affidavits and testimony in the divorce proceeding underlying the claims in this case. Harrison attached motions and supporting documents from the divorce proceeding as exhibits to his motion to dismiss in this case.
