Peppers v. Elder

• Decision Date: 09 September 1981
• Docket Number: No. 37597,37597
• Citation: Peppers v. Elder, 281 S.E.2d 582, 248 Ga. 136 (Ga. 1981)
• Parties: PEPPERS v. ELDER et al.
• Court: Georgia Supreme Court

Page 582

281 S.E.2d 582

248 Ga. 136

PEPPERS v. ELDER et al.

No. 37597.

Supreme Court of Georgia.

Sept. 9, 1981.

William D. Healan, Jr., Winder, for Jackson L. Peppers.

Richard B. Russell, III, John E. Stell, Jr., N. David Wages, Winder, for Thomas Elder et al.

JORDAN, Chief Justice.

The appeal is from the sustaining of a motion to dismiss.

Barrow County closed County Road Number 79 at the request of all of the adjacent landowners. The County then quit-claimed the former county roadway to the adjacent property owners. When the adjacent owners caused a ditch to be dug across the roadway, Jackson L. Peppers, in his capacity as a citizen-taxpayer of Barrow County, filed the present equity and mandamus action against the county and the adjoining landowners to set aside the conveyance, to remove the obstruction and to require the county to maintain the roadway as a public road.

After a jury was struck, Barrow County and the adjoining landowners orally moved to dismiss the complaint for failure to state a claim and for lack of standing to sue. The motion was heard in chambers without a reporter present and was granted, prompting this appeal.

1. Peppers first contends that he should have been given thirty days to respond to the motion because matters outside the pleadings were considered. Riverhill Community Assoc. v. Cobb County Board of Commissioners, 236 Ga. 856, 859, 226 S.E.2d 54 (1976). A respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to thirty days to respond to the motion for summary judgment unless such notice and opportunity are waived. Atlanta Associates v. Westminister Properties, Inc., 242 Ga. 462, 249 S.E.2d 252 (1978); Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976). By consenting to the hearing of the motion in chambers that day and by arguing the merits of the motion without objecting to lack of notice, Peppers waived his right to notice and to further opportunity to respond. Register v. Kandlbinder, 231 Ga. 786, 204 S.E.2d 145 (1974).

2. Peppers concedes that the statutory notice to property owners required of a county before the closing of a county road need not have been given to him because he does not own property located on the road in issue. Code Ann. § 95A-619(b); See, McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978); see also, Avery v. The Berry Schools, 211 Ga. 581, 87 S.E.2d 401 (1955). Instead, he asks, in essence, that this...