BAC HOME LOANS SERVICING, L.P.
Certiorari to the Court of Appeals of Georgia -- 328 Ga.App. 566.
Dickenson Gilroy, Monica K. Gilroy, Tania T. Trumble, Emily H. Cobb, Aimee D. LaTourette, for appellant.
Nicholson Revell, Sam G. Nicholson, Adam W. King, for appellee.
MELTON, Justice. All the Justices concur.
Brian Wedereit sued BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing (" BAC" ) for, among other things, breach of contract and wrongful foreclosure. BAC moved for summary judgment, and the trial court denied BAC's motion on Wedereit's claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees. However, the trial court also granted sua sponte partial summary judgment to Wedereit on his breach of contract claim because BAC allegedly failed to give proper pre-acceleration notice as required under Paragraph 22 of the Security Deed. BAC appealed, and, in Division 1 of its opinion, the Court of Appeals affirmed the trial court's sua sponte grant of partial summary judgment to Wedereit. BAC Home Loans Servicing, L.P. v. Wedereit, 328 Ga.App. 566 (1) (759 S.E.2d 867) (2014). We granted BAC's petition for certiorari to determine whether the Court of Appeals erred when it held in its Division 1 that the issues resolved by the award to Wedereit of partial summary judgment were the same as those raised by BAC's motion for summary judgment, such that an award of partial summary judgment sua sponte to a nonmovant was permissible. See Covington v. Countryside Investment Co., 263 Ga. 125, 127 (3) (428 S.E.2d 562) (1993). For the reasons that follow, we reverse.
Under limited circumstances, a court may grant summary judgment sua sponte in favor of a nonmoving party:
While in most cases it is better practice to await a motion for summary judgment before entering it for a [nonmoving] party, it may not be erroneous under the circumstances of a given case, where the issues are the same as those involved in the movant's motion.
(Citation and punctuation omitted; emphasis in original.) Covington, supra, 263 Ga. at 127 (3). In order to properly grant summary judgment sua sponte to a nonmovant, it is not sufficient that the issues upon which the sua sponte grant of summary judgment is based are merely similar or related to those raised in the movant's motion for summary judgment, or that they are issues that could have otherwise become the subject of a proper motion for summary judgment because they were raised in the pleadings. See id. at 127 (3) (where defendant only moved for summary judgment on plaintiff's specific performance and damages claims, trial court erred in granting summary judgment to defendant sua sponte on its counterclaim [297 Ga. 314] for breach of contract). The issues must be identical to those raised in the movant's motion, such that it would render the nonmovant's filing of a separate motion for summary judgment on those same issues " a pure formality." Cruce v. Randall, 245 Ga. 669, 669-670 (266 S.E.2d 486) (1980) (where " two plaintiffs were joint obligees on a promissory note on which the defendants were the obligors, and [where] the issues concerning the defendants' liability [were] identical as to both plaintiffs," trial court properly granted summary judgment sua sponte to nonmoving plaintiff where first plaintiff prevailed on summary judgment). Additionally, the sua sponte
grant of summary judgment must be proper in all other respects[, which] 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.
(Citations and punctuation omitted.) Aycock v. Calk, 222 Ga.App. 763, 764 (476 S.E.2d 274) (1996).
In Wedereit's unverified Amended Complaint, he quoted the first section of Paragraph 22 of the ...