If a Georgia judge looks at anything outside the pleadings when ruling on a motion to dismiss, the motion automatically becomes a motion for summary judgment.
What the Statute Says
Under OCGA 9-11-12(b), when “matters outside the pleading 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 Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.” Conversion happens by operation of the statute, whether or not anyone asks for it and whether or not the judge says so.
What Conversion Gets You
In Simmons v. Brady, 251 Ga. App. 717 (2001), a man who had paid more than five years of child support for a child who turned out not to be his sued the mother. She filed what she called a motion to dismiss and attached documents from the divorce and adoption files. The trial court converted the motion and granted summary judgment against him. The Court of Appeals vacated the judgment, holding that conversion entitles the responding party to notice, and to “an opportunity to submit evidence and be heard within 30 days.”
Likewise, in Fitzpatrick v. Harrison, 300 Ga. App. 672 (2009), a trial court made findings drawn from affidavits and testimony in an underlying divorce proceeding. That converted the motion, and the court’s refusal to hold the hearing the respondent had requested required reversal.
What Does Not Convert It
A judge may read exhibits that are attached to and incorporated in the pleadings themselves. In Brown v. Gadson, 288 Ga. App. 323 (2007), the trial court dismissed a paternity petition based on an agreement attached to the pleadings, and the Court of Appeals held that considering it did not convert the motion.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!