Sumner v. Department of Human Resources

• Decision Date: 18 February 1997
• Docket Number: No. A97A0260,A97A0260
• Citation: 483 S.E.2d 602,225 Ga.App. 91
• Parties: , 97 FCDR 830 SUMNER v. DEPARTMENT OF HUMAN RESOURCES.
• Court: Georgia Court of Appeals

Page 602

483 S.E.2d 602

225 Ga.App. 91, 97 FCDR 830

SUMNER v. DEPARTMENT OF HUMAN RESOURCES.

No. A97A0260.

Court of Appeals of Georgia.

Feb. 18, 1997.

Order Denying Reconsideration March 4, 1997.

Blackwood, Matthews & Steel, James B. Matthews III, John B. Briggs, Atlanta, Blasingame, Burch, Garrard, Bryant & Ashley, J. Ralph Beaird, Kathleen M. Timmons, Athens, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Patricia Guilday, Assistant Attorney General, for appellee.

BIRDSONG, Presiding Judge.

Appellant/plaintiff Geneva Sumner, individually and as administratrix of the estate of her son, appeals the order of the superior court granting appellee/defendant Georgia Department of Human Resources' (DHR) motion to dismiss. The trial court converted the motion to a motion for summary judgment, stating it had considered matters outside the pleadings.

This is a suit for damages brought against DHR. Appellant's four-year-old son, Donovan Clark, was killed by a foster child placed with appellant by DHR. Appellant contends that DHR failed to disclose that the foster child was disposed toward violent conduct, which it is claimed was documented in the records in DHR's possession. Appellant in the alternative contends her claims arise from breach of a written contract, specifically a breach of appellee's duty to disclose under the contract. Appellee seeks dismissal on the ground inter alia that the claims of appellant are barred by sovereign immunity. Appellant further contends that DHR's failure to make her aware of the foster child's disposition toward violent conduct constitutes a fraud, and that there is no exception in the tort waiver provisions of the Georgia Tort Claims Act based on fraud. Held:

1. At summary judgment a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the nonmoving party's case. In other words summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the nonmoving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. Further, in ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. However, the standard for disposing of a motion to dismiss has a substantially different focus. Under the Civil Practice Act, a motion to dismiss with prejudice, such as was filed in this case, should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. See Dozier v. Clayton County Hosp. Auth., 206 Ga.App. 62, 65(3), 424 S.E.2d 632; C.F.I. Constr. Co. v. Bd. of Regents, etc., of Ga., 145 Ga.App. 471, 475(4), 243 S.E.2d 700.

2. The trial court in its order expressly stated: "This case came before the court on defendant's motion to dismiss, which the court procedurally treated as a motion for summary judgment since matters of record outside the pleadings were considered." (Emphasis supplied.) Thereafter the court granted appellee's motion. Appellant contends that reversible error occurred because the trial court failed to provide it with notice and opportunity to present evidence on the converted motion for summary judgment. We agree.

OCGA § 9-11-12(b) pertinently provides: "If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, 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 Code Section 9-11-56." In Aycock v. Calk, 222 Ga.App. 763-764, 476 S.E.2d 274 (whole court), this Court held: "It is clear that in dismissing the [appellant's] complaint, the trial court considered matters outside the pleadings, thereby converting the order into one for summary judgment. [Cits.] 'Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court's authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. (Cit.) "This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. (Cits.)" (Cit.)' " The court further held: " ' "The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him." ' ... While the record as it stands may support the trial judge's ruling, it also shows that the [appellant was] not notified that the trial court intended to rule upon the merits of [her] claim and that [she was] not provided a full and final opportunity to respond to the court's sua sponte...