Cox Enterprises, Inc. v. Nix
| Citation | 273 Ga. 152,538 S.E.2d 449 |
| Decision Date | 13 November 2000 |
| Docket Number | No. S00G1083.,S00G1083. |
| Parties | COX ENTERPRISES, INC. et al. v. NIX. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, Lawrence P. Auld, Atlanta, for appellants.
Garland, Samuel & Loeb, Edward T.M. Garland, Nelson O. Tyrone III, Atlanta, for appellee.
Louis Levenson and Franklin Nix are attorneys. Alleging claims for defamation and tortious interference with contractual relations, Levenson brought suit against Nix. He also sought to enjoin Nix from soliciting his clients. After a hearing, the trial court granted a temporary restraining order (TRO) and, from the bench, reproached Nix for his conduct in attempting to lure Levenson's clients. Cox Enterprises, Inc., d/b/a The Atlanta Journal Constitution published two newspaper articles about disciplining attorneys entitled "Rogue Lawyers," which included a reference to the lawsuit against Nix and the public reprimand given him by the trial court.
Nix brought suit against Cox Enterprises and its assistant editor Rochelle Bozman (Defendants), alleging, among other claims, that the articles were libelous. Although Nix's complaint referred to the record in Levenson's lawsuit, he did not attach a copy of that record to his pleading. Defendants answered, asserting that the articles were true and privileged as a fair and honest report of a court proceeding. Defendants also moved to dismiss the complaint for failure to state a claim, and attached to their motion voluminous exhibits including the entire record of Levenson's legal action. In opposition to Defendants' motion, Nix filed a response to which he attached numerous exhibits, and in which he urged the trial court to read the entire transcript of the TRO hearing. The trial court granted the motion, and Nix appealed. He did not challenge the procedures utilized below, but urged that, on the merits, his complaint stated a claim against Defendants and that the trial court erred in dismissing it under OCGA § 9-11-12(b)(6).
The Court of Appeals did not address Nix's enumeration of error. Instead, it vacated the dismissal order, and remanded on the procedural ground that the trial court considered matters outside of the pleadings without first giving Nix notice that Defendants' motion would be treated as one for summary judgment. Nix v. Cox Enterprises, 242 Ga.App. 515, 529 S.E.2d 426 (2000). The Court of Appeals directed the trial court to reconsider the motion to dismiss and, if matters outside the pleadings again were considered so as to convert the motion to one for summary judgment, to give Nix notice and opportunity to present evidence in opposition thereto. We granted certiorari to consider whether Nix's submission of evidence in response to the OCGA § 9-11-12(b)(6) motion to dismiss constituted a waiver of notice that the motion would be converted to one for summary judgment.
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. OCGA § 9-11-12(b). Under OCGA § 9-11-56(c), a motion for summary judgment "shall be served at least 30 days before the time fixed for the hearing." Thus, when a trial court opts to convert a motion to dismiss for failure to state a claim into one for summary judgment, "the party opposing the motion may, if he so desires, have 30 days' notice in which to prepare" evidence in opposition. Davis v. American Acceptance Corp., 119 Ga.App. 265, 267(1), 167 S.E.2d 222 (1969). In accordance with this procedure, the trial court had the burden of informing Nix that it would consider the exhibits attached to Defendants' motion to dismiss and that, as the consequence, he would have no less than 30 days within which to submit his own evidence in response to their motion for summary judgment. Davis v. American Acceptance Corp., supra at 267(1), 167 S.E.2d 222. See also Myers v. McLarty, 150 Ga.App. 432, 434, 258 S.E.2d 56 (1979). However, the 30 day notice could "of course be waived if it [was] not desired." Davis v. American Acceptance Corp., supra at 267(1), 167...
To continue reading
Request your trial
-
Carter v. VistaCare, LLC.
...an opportunity to respond to evidence submitted." Morrell, 280 Ga.App. at 2(1), 633 S.E.2d 68. See also Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 154, 538 S.E.2d 449 (2000). Thus, we find that Carter waived the requirement of formal notice from the trial court that it would consider the mo......
-
Parnell v. Sherman & Hemstreet, Inc.
...findings where the trial court's order lacks sufficient detail to enable meaningful appellate review.").21 Cox Enter., Inc. v. Nix , 273 Ga. 152, 153, 538 S.E.2d 449 (2000) (punctuation omitted); accord Premier Eye Care Assocs., P.C. v. Mag Mut. Ins. Co. , 355 Ga. App. 620, 623, 844 S.E.2d ......
-
Petree v. State
...v. VistaCare, LLC , 335 Ga.App. 616, 617 (1), 782 S.E.2d 678 (2016) (citation and punctuation omitted). See also Cox Enterprises v. Nix , 273 Ga. 152, 153, 538 S.E.2d 449 (2000). Here, the trial court did not inform Petree it was converting the County's motion to dismiss into a motion for s......
-
Hicks v. Gabor
...of its own docket. Thus, the trial court converted the motions to dismiss into motions for summary judgment. See Cox Enterprises v. Nix , 273 Ga. 152, 153, 538 S.E.2d 449 (2000) (if, in deciding a motion to dismiss for failure to state a claim, a trial court considers evidence other than wh......