C & H Quality Homes, Inc v. Ridge Environmental, LLC

Court of Appeals of the State of Georgia

ATLANTA,_________________ May 21, 2012

The Court of Appeals hereby passes the following order:

A12I0233. C & H QUALITY HOMES, INC. v. RIDGE ENVIRONMENTAL, LLC.

C&H Quality Homes, Inc. (“C&H”) seeks interlocutory review of the trial court’s order granting Ridge Environmental, LLC’s motion to dismiss C&H’s petition for declaratory judgment. Generally, if a trial court considers matters outside of the pleadings when ruling on a motion to dismiss, the motion is converted into a summary judgment proceeding. See Ford v. Caffrey, 293 Ga. App. 269, 270 (666 SE2d 623) (2008). As is evident from the order, the trial court considered such matters in ruling on the motion to dismiss. Accordingly, we must view the dismissal order as a grant of summary judgment. See Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010); Ford, supra; Hardin v. Phillips, 249 Ga. App. 541 n.1 (547 SE2d 565) (2001); Wang v. Moore, 247 Ga. App. 666 n.2 (544 SE2d 486) (2001); Peeples v. City of Atlanta, 189 Ga. App. 888, 888-889 (1) (377 SE2d 889) (1989) (physical precedent only). “This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486 n.1 (602 SE2d 246) (2004). Because a grant of summary judgment is directly appealable, even if it does not resolve the case as to all outstanding claims, C&H’s interlocutory application is hereby GRANTED. See OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.”). C&H shall have ten days from the date of this order to file a notice of appeal in the trial court. If, however, a notice of appeal has already been filed, a second notice

need not be filed. The clerk of the trial court is directed to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia 05/21/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.