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Lawskills.com Georgia Caselaw
JIM ALTMAN INSURANCE, INC. v. ZORN & SON INSURANCE AGENCY, INC.
74763.
BENHAM, Judge.
Action on contract. Toombs Superior Court. Before Judge Hartley.
Appellant brought suit against appellee on a contract. Appellee answered and moved to dismiss the suit on the ground that the claim asserted in the complaint should have been asserted in a pending lawsuit in which appellant was defendant and appellee was plaintiff. After stating on the record that it was considering only the pleadings, the trial court entered an order which dismissed the complaint in this case and simultaneously dismissed the counterclaim appellant was seeking to assert in the related case. The trial court's ruling in this case, that the claim asserted in the complaint was a compulsory counterclaim in the other case, was based on a review of the record of the other case. While taking judicial notice of another record in the same court is certainly within the trial court's power (see Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984)), the effect of having done so was to convert appellee's motion to dismiss into a motion for summary judgment by considering matters outside the pleadings in this case. OCGA 9-11-12 (c).
D. Duston Tapley, Jr., for appellee.
Malcolm F. Bryant, Jr., for appellant.
DECIDED OCTOBER 19, 1987.
Sunday November 23 10:45 CST


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