329 Ga. App. 86
Ga. Ct. App.2014Background
- In 2004 Marsha Meade executed a promissory note and security deed on a condominium; Wells Fargo later acquired the security deed and Meade sold the unit to Nathaniel Garner in 2008 subject to that deed.
- After Meade defaulted, Wells Fargo (via McCalla Raymer) advertised a foreclosure sale; US Bank bought the property at the March 2, 2010 foreclosure and later obtained a writ of possession to evict Garner.
- Garner sued Wells Fargo in state court the day before the sale; that suit was removed to federal court and dismissed for lack of standing, a dismissal the Eleventh Circuit affirmed.
- In December 2012 Garner filed this suit against US Bank, Wells Fargo, and McCalla Raymer alleging wrongful foreclosure and related torts. Defendants moved to dismiss, asserting collateral estoppel based on the federal-court dismissal.
- The state trial court held an April 15, 2013 hearing (noticed as a status conference), considered the federal opinions without giving Garner 30-day notice converting the motion to summary judgment, and granted dismissal.
- The Georgia Court of Appeals reversed, concluding the trial court erred by considering extrinsic unpublished federal opinions without proper notice or certified copies, and thus by effectively granting summary judgment improperly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court converted the motion to dismiss into summary judgment without adequate notice and thus violated OCGA § 9-11-12(b)/Davis | Garner argued he lacked the 30-day notice required when a court considers matters outside the pleadings and did not waive the notice | Defendants argued the court could consider the federal orders (and thus treat as not converting) or take judicial notice | Court held the trial court converted the motion by considering outside materials without giving required notice and that this was error because Garner was not given proper 30-day notice and did not waive it |
| Whether consideration of the federal decisions at the hearing was permissible by judicial notice | Garner argued the federal opinions were unpublished and not subject to judicial notice; also they were not admitted as certified copies | Defendants argued the trial court could judicially notice the prior federal orders and rely on them to apply collateral estoppel | Court held the unpublished federal opinions were not subject to judicial notice and were not admitted as duly certified copies, so they could not be relied on to establish collateral estoppel |
| Whether collateral estoppel or res judicata barred Garner’s state claims based on the prior federal dismissal | Garner argued the federal dismissal did not adjudicate the merits against him; also asserted jurisdictional defects of prior case | Defendants argued the prior adjudication resolved the same issues and barred relitigation | Court held defendants failed to carry burden — they did not introduce duly certified portions of the prior proceeding; therefore collateral estoppel/res judicata could not be applied on this record |
| Whether any deficient-notice error was harmless | Garner argued error was harmful because defendants failed to submit certified records and relied on unpublished opinions | Defendants argued Garner had opportunity at hearing and the error was harmless | Court held the error was not harmless because defendants did not submit certified copies and could not establish preclusive effect; reversal required |
Key Cases Cited
- Fernandez v. WebSingularity, Inc., 299 Ga. App. 11 (2009) (motion-to-dismiss treated as summary judgment when court considers matters outside pleadings)
- Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505 (2006) (court must give 30-day notice before treating motion to dismiss as motion for summary judgment)
- Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (1981) (material relied on for summary judgment must be on file at least 30 days before hearing)
- Swafford v. Globe Am. Cas. Co., 187 Ga. App. 730 (1988) (unpublished appellate slip opinions are not subject to judicial notice under statutory predecessor)
- McMillian v. Rogers, 223 Ga. App. 699 (1996) (party asserting collateral estoppel must introduce duly certified portions of the prior proceeding)