Jim Altman Insurance, Inc. v. Zorn & Son Insurance Agency, Inc.

Benham, Judge. Appellant brought suit against appellee on a contract. Appellee answered and moved to dismiss the suit on the ground that the claim asserted in the complaint should have been asserted in a pending lawsuit in which appellant was defendant and appellee was plaintiff. After stating on the record that it was considering only the pleadings, the trial court entered an order which dismissed the complaint in this case and simultaneously dismissed the counterclaim appellant was seeking to assert in the related case. The trial court’s ruling in this case, that the claim asserted in the complaint was a compulsory counterclaim in the other case, was based on a review of the record of the other case. While taking judicial notice of another record in the same court is certainly within the trial court’s power (see Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984)), the effect of having done so was to convert appellee’s motion to dismiss into a motion for summary judgment by considering matters outside the pleadings in this case. OCGA § 9-11-12 (c). That being so, it was necessary to give appellant notice of the motion as is required by OCGA § 9-11-56 (c), and an opportunity to present any materials made pertinent by the motion. Harkins v. Harkins, 153 Ga. App. 104 (1) (264 SE2d 572) (1980). Since appellant was given neither notice nor opportunity, the judgment must be reversed. *576 Decided October 19, 1987. Malcolm F. Bryant, Jr., for appellant. D. Duston Tapley, Jr., for appellee. Judgment reversed. Banke, P. J., and Parley, J., concur.