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Sea Tow-Sea Sprill of Savannah v. Phillips2/1/2002
Sea Tow/Sea Spill of Savannah ("Sea Tow") filed suit in state court against Robert L. Phillips seeking recovery for services rendered in connection with the salvage of Phillips' boat. In his answer, Phillips raised as an affirmative defense the court's lack of jurisdiction. After limited discovery, Phillips filed a motion to dismiss on January 25, 2000, arguing that the state court lacked subject matter jurisdiction because the marine salvage action was subject to federal maritime law and within the exclusive jurisdiction of the federal court sitting in admiralty. Thirteen days later, the court granted Phillips' motion.
After Sea Tow's subsequent motion to set aside was denied, it appealed to this Court. We reversed the denial of the motion to set aside, because the trial court had failed to provide counsel with notice of the order of dismissal, effectively depriving Sea Tow of the opportunity to seek reconsideration or appeal of the adverse decision. Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 614-615 (2) (545 SE2d 34) (2001). We directed the state court to set aside and re-enter its order. Id. Accordingly, the court reentered the order of dismissal on February 1, 2001. The present appeal followed. We now reverse the dismissal.
1. First, Sea Tow contends that the state court erred in granting Phillips' motion to dismiss, because it did not provide Sea Tow adequate time to respond to the motion. Sea Tow argues that because the court considered matters outside the pleadings, the motion to dismiss was, in fact, a motion for summary judgment; therefore, Sea Tow should have been provided thirty days to respond pursuant to OCGA § 9-11-56 (c). We disagree.
A motion to dismiss for failure to state a claim upon which relief can be granted under OCGA § 9-11-12 (b) (6) will be converted to a motion for summary judgment when it relies on matters outside the pleadings; however, in this case Phillips' motion to dismiss was based on a lack of subject matter jurisdiction, OCGA § 9-11-12 (b) (1), which is a "matter in abatement." Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 821 (2) (377 SE2d 901) (1989). We recognize that Phillips brought his motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim; however, his entire argument regarding the latter ground was that the complaint failed to state a claim upon which that particular court could grant relief because the state court was not empowered to grant relief in admiralty matters. Phillips offered as evidence, outside the pleadings, responses to interrogatories by Sea Tow which asserted that its claim was based on "pure salvage with . . . an agreement by the Defendant to pay for the services." The order granting the motion to dismiss was based solely on the issue of jurisdiction. There is nothing in the record to indicate that the trial court relied on evidence when deciding the legal issue raised by the motion to dismiss.
" urisdiction is a subject matter in abatement, not one involving judgment on the merits." Cohran v. Jones, 160 Ga. App. 761 (1) (288 SE2d 80) (1981). See also Manufacturers National Bank of Detroit v. Tri-State Glass, Inc., 201 Ga. App. 253, 254 (1) (410 SE2d 808) (1991). "Matters in abatement are not properly the basis for a motion for summary judgment." (Citations omitted.) Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994). Thus, Phillips' motion to dismiss was not converted to a motion for summary judgment, and the required response period provided in OCGA § 9-11-56 (c) did not apply.
Contrary to Sea Tow's argument, it is not error for a court to decide a motion to dismiss for lack of subject matter jurisdiction prior to the expir
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