Hart v. Sullivan, A90A1359
| Decision Date | 14 November 1990 |
| Docket Number | No. A90A1359,A90A1359 |
| Citation | 197 Ga.App. 759,399 S.E.2d 523 |
| Parties | HART et al. v. SULLIVAN et al. |
| Court | Georgia Court of Appeals |
Cathey & Strain, Dennis T. Cathey, Edward E. Strain III, Cornelia, for appellants.
Wildman, Harrold, Allen, Dixon & Branch, Thomas B. Branch III, Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Atlanta, for appellees.
A complaint was filed by plaintiffs, denominated as "George W. Hart and Hart & Sullivan, P.C.," against Terrance Sullivan, Rush Smith, Jr., Alexander Booth, John Hall, Jr., Elaine Whitehurst, and Michael Frick, the remaining shareholders in the professional corporation, asserting claims, inter alia, for breach of fiduciary duties, tortious interference with contractual relations, RICO violations, and certain equitable matters. Whitehurst and Frick subsequently were voluntarily dismissed from the action. The remaining defendants in their answer specifically challenged the authority of Hart to bring the action on behalf of Hart & Sullivan, P.C. See OCGA § 9-11-9(a). Defendants moved the court for an order requiring counsel for Hart & Sullivan, P.C. to show proof of authority to act on behalf of the professional corporation, and sought an injunction to prohibit Hart from holding himself out as the professional corporation or as president of the corporation and from interfering with the acts of the corporation. Defendants then filed a motion which was captioned a "motion to dismiss." The first part of the motion pertained to that part of the complaint involving Hart & Sullivan, P.C. and asserted that the professional corporation had not authorized or permitted the action to be brought. In support of this part of the motion, defendants attached an affidavit and document which set forth a resolution passed by the Board of Directors of Hart & Sullivan, P.C. disavowing the giving of any authorization for the bringing of the action by Hart. The second part of the motion was directed to Hart individually and specified that it was for failure to state a claim upon which relief could be granted.
In its order entered on the three motions, the trial court converted defendants' motion to dismiss into a motion for summary judgment, then granted it with respect to all claims brought on behalf of Hart & Sullivan, P.C., on the basis that Hart had no authority to bring the action on behalf of the professional corporation. The trial court denied the motion with respect to claims brought by Hart individually, granted defendants' motion for an interlocutory injunction, and held moot defendants' motion for an order requiring a showing of proof of authority. This appeal was brought solely from that part of the order granting partial summary judgment to defendants.
for summary judgment under OCGA § 9-11-56, we agree with appellants that the trial court's grant of partial summary judgment to appellees was error. The trial court properly treated the first part of appellees' motion to dismiss as a motion for summary judgment since Hart's authority to initiate the current action on behalf of Hart & Sullivan, P.C. involved a factual determination which could only be resolved by looking to matters outside the pleadings. Upon the trial court's conversion of the motion to one for summary judgment (being the first notice to appellants in the record that the motion was one for summary judgment), however, appellants were then entitled to 30 days to respond to the motion as converted before a ruling was made on the motion, Williams v. Columbus, Ga., 151 Ga.App. 311, 259 S.E.2d 705 (1979), and the entry of the trial court's order on the summary judgment motion without allowing appellants 30 days to respond was error. Id. As in Williams, the record here is devoid of any notice or a showing that appellants waived notice of conversion to a motion for summary judgment.
We find no merit in appellees' arguments that appellants' failure to respond to the "motion to dismiss" as a motion for summary judgment entitled appellees to the grant of partial summary judgment. While courts look to the substance of a pleading rather than its nomenclature in determining its nature, see Chance v. Planters, etc., Co-op., 219 Ga. 1, 5, 131 S.E.2d 541 (1963), it would defeat the purpose of the Civil Practice Act as liberally applied by our appellate courts (see Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539, 314 S.E.2d 903 (1984)) to place the burden on respondents...
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