                              FOURTH DIVISION
                                BARNES, P. J.,
                            RAY and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                       May 1, 2015




In the Court of Appeals of Georgia
 A15A0066. THOMAS v. GREGORY.

      MCMILLIAN, Judge.

      David Neil Thomas filed a complaint seeking recovery for injuries sustained

when DeKalb County police officer Nathan C. Gregory placed him under arrest after

erroneously entering the model number rather than the serial number of Thomas’s

handgun while checking the gun’s registration, leading to an incorrect return that the

gun had been stolen. Pursuant to OCGA § 9-11-12 (b) (6), Gregory filed a motion to

dismiss, asserting that Thomas’s claims were barred by the doctrine of official

immunity. The trial court granted his motion, finding that Thomas’s complaint

alleged a discretionary act rather than a ministerial one. Thomas now appeals, and for

the reasons discussed below, we reverse.
      “On appeal, we review a trial court’s decision to grant or deny a motion to

dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423

(762 SE2d 138) (2014).1 And “[i]n reviewing the grant of a motion to dismiss, an

appellate court must construe the pleadings in the light most favorable to the

appellant with all doubts resolved in the appellant’s favor.” (Citation and punctuation

omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007). We

may also consider any exhibits attached to and incorporated into the complaint and

the answer, also construing them in the appellant’s favor. Trop, Inc. v. City of

Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014).

      As alleged in Thomas’s complaint, on November 6, 2011, Gregory, along with

two John Doe defendants,2 responded to a call regarding a fight at Major Bar & Grill

on Northlake Parkway in Norcross. Thomas, who denies any involvement in that

fight, was exiting the parking lot when he was pulled over and questioned by



      1
       Although the record shows that the trial court granted Gregory’s motion as
one for summary judgment, for the reasons discussed in Division 1, we likewise
review a trial court’s decision to grant a motion for summary judgment de novo,
viewing the evidence in the light most favorable to the nonmovant. See Godwin v.
Mizpah Farms, LLLP, 330 Ga. App. 31, 31 (766 SE2d 497) (2014).
      2
       There is no indication in the record that the John Does were identified below,
and only Gregory is a party to this appeal.

                                          2
Gregory. Thomas advised the officers that he had two weapons, which he had

purchased new, and that he had a license for both weapons. One was a Smith &

Wesson 9mm, model number SW9VE. Thomas was placed in the back of a patrol

vehicle while Gregory ran the weapons through the National Crime Information

Center (“NCIC”) database to determine whether they were stolen. According to

Thomas, he witnessed Gregory input the model number as the serial number in the

NCIC database search and informed him that he was entering the wrong number as

the serial number. Gregory denied that he was inputting the wrong number and told

Thomas that “he could do what he wanted.” As a result of the input error, the weapon

was shown as stolen, and an arrest warrant was obtained against Thomas for theft by

receiving stolen property.

      In his complaint, Thomas alleges that Gregory’s incorrect entry of the model

number into the NCIC database violated the DeKalb County policy of “Neglect of

Duty.”3 He further alleges the duty to properly identify and enter the serial number

of a weapon into the NCIC database was “simple, absolute and, definite, arose under

conditions admitted or proved to exist, and required merely the execution of a specific

      3
        As alleged by Thomas, that policy states: “Neglect of Duty is prohibited. To
this end, there shall be no failure to give suitable attention to the performance of
duty.”

                                          3
duty,” and that Gregory negligently performed that duty. Thomas sought damages for

alleged physical, emotional, and mental injuries arising from Gregory’s conduct, as

well as expenses incurred in connection with the defense of the criminal proceedings

against him,4 which were proximately caused by Gregory’s “failure to exercise

ordinary care in the performance of [his] ministerial duty.”

      In his answer, Gregory admitted mistakenly entering the model number as a

serial number, but denied liability pursuant to the doctrine of official immunity and

simultaneously filed a motion to dismiss for failure to state a claim on December 6,

2013.5 In its January 31, 2014 order, the trial court recited that Gregory had filed a

“Motion for Summary Judgment,” and after finding that Thomas did not allege any

policy that specifically requires a police officer to accurately transcribe a serial

number, granted Gregory’s “Motion for Summary Judgment.” On March 3, 2014,

Thomas filed a notice of appeal from the trial court’s order granting Gregory’s motion

for summary judgment. Then, on March 10, 2014, the trial court entered an amended




      4
       Attached to Thomas’s complaint was a directed verdict in his favor following
a criminal trial on August 22, 2012.
      5
        It appears from the record that Thomas did not file an opposition to the
motion to dismiss.

                                          4
order, stating that its March 3, 2014 order should have referenced a motion to

dismiss, not a motion for summary judgment.

       1. We first address Thomas’s contention that the trial court lacked jurisdiction

to amend its March 3, 2014 order after he filed a notice of appeal. In its order, the trial

court relied on OCGA § 9-11-60 (g) to correct a “clerical mistake.”6 However, our

Supreme Court has explained that

       not even that option is available since the filing of the notice of appeal
       operates as a supersedeas and deprives the trial court of the power to
       affect the judgment appealed, so that subsequent proceedings purporting
       to supplement, amend, alter or modify the judgment, whether pursuant
       to statutory or inherent power, are without effect.


(Citations omitted.) Upton v. Jones, 280 Ga. 895, 896 (1) (635 SE2d 112) (2006)

(lower court has no ability to correct clerical mistake pursuant to OCGA § 9-11-60

(g) once notice of appeal is filed). Thus, the trial court’s amended order “cannot be

considered for purposes of this appeal, even if a remand becomes necessary as a

consequence.” (Citation and punctuation omitted.) Id.


       6
        OCGA § 9-11-60 (g) provides that “[c]lerical mistakes in judgments, orders,
or other parts of the record and errors therein arising from oversight or omission may
be corrected by the court at any time of its own initiative or on the motion of any
party and after such notice, if any, as the court orders.”

                                            5
      2. Turning to the trial court’s original order, Thomas asserts that because the

trial court erroneously treated Gregory’s motion as one for summary judgment, it

applied an incorrect legal standard and failed to provide the requisite notice to the

parties that it intended to convert the motion to dismiss into a motion for summary

judgment. OCGA § 9-11-12 (b) provides that “[i]f, 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 . . .” Once the motion has been so converted, “all

parties shall be given reasonable opportunity to present all material made pertinent

to [a motion for summary judgment].” Id. See also Sumner v. Dept. of Human

Resources, 225 Ga. App. 91, 93 (2) (483 SE2d 602) (1997) (“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.”) (citation and

punctuation omitted).

      Although it does not appear from the record that the trial court considered any

matters outside the pleadings, we are faced with an order expressly stating that it

granted a motion for summary judgment. Because this order was entered without

providing Thomas an opportunity to present all material made pertinent to a motion

                                           6
for summary judgment, we are required to remand so that Thomas may be given fair

notice and an opportunity to respond. See Simmons v. Brady, 251 Ga. App. 717, 718

(1) (555 SE2d 94) (2001) (“This opportunity consists of notice that the motion will

be converted and an opportunity to submit evidence and be heard within 30 days.”)

(citations omitted); Sumner, 225 Ga. App. at 93 (2) (“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 review.”)

(citation and punctuation omitted; emphasis in original).

      3. Because it is unclear from the record whether the trial court, on remand, will

readdress Gregory’s motion as a motion to dismiss, we will consider Thomas’s

alternative enumeration of error that, even if we treat the order as granting a motion

to dismiss, the trial court erred when it disregarded the allegations of the complaint

to find that Gregory’s duties were discretionary. 7Our Supreme Court has recently

reiterated that a motion to dismiss should not be granted unless “the allegations of the

complaint disclose with certainty that the claimant would not be entitled to relief

      7
        See, e.g., Hand v. S. Ga. Urology Ctr., P.C, __ Ga. App. __ (2) (Case No.
A14A1854, decided March 16, 2015); City of Atlanta v. Bennett, 322 Ga. App. 726,
732 (2) (746 SE2d 198) (2013).

                                           7
under any state of provable facts asserted in support thereof[.]” (Citation omitted.)

Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014). Therefore, the movant

must establish that the plaintiff cannot possibly introduce evidence within the

allegations of the complaint entitling him to the relief sought. Id. at 774-775.

       Here, as in Austin, “the pivotal determination of this case is whether

[Gregory’s] actions or inactions constitute the violation of a ministerial or

discretionary duty.” 294 Ga. at 774. Under Georgia law, the doctrine of official

immunity “provides that while a public officer or employee may be personally liable

for his negligent ministerial acts, he may not be held liable for his discretionary acts

unless such acts are wilful, wanton, or outside the scope of his authority.” (Citations

omitted.) Id. An act is ministerial if it is “simple, absolute, and definite, arising under

conditions admitted or proved to exist, and merely requiring the execution of a

specific duty.” Id. However, a discretionary act “calls for the exercise of personal

deliberation and judgment, which in turn entails examining the facts, reaching

reasoned conclusions, and acting on them in a way not specifically directed.” Id.

(noting that the distinction between the two types of acts is highly fact-specific). The

“Neglect of Duty” policy identified by Thomas in his complaint clearly does not

define an act that is “simple, absolute, and definite” or that requires merely “the

                                            8
execution of a specific duty.” See Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d

775) (2010) (comparing cases that have found written policies requiring ministerial

acts).

         However, although the trial court correctly found that Thomas has not pointed

to any specific policy requiring Gregory to accurately input a serial number into the

NCIC database, without the benefit of any discovery the highly fact-specific inquiry

of whether the act complained of was ministerial or discretionary cannot be

definitively answered at the motion to dismiss stage. See Austin, 294 Ga. at 774. And,

“it does not matter that [Thomas] has pointed to no specific and clear procedures or

methods for dealing with [the inputting of serial numbers]. This is factual evidence

which may or may not be developed during discovery and can be considered on a

subsequent motion for summary judgment.” (Punctuation omitted.) Id. at 775. Thus,

even if it was the trial court’s intent to grant the motion to dismiss, it was improper

at this early stage of the case.8 See Marshall v. McIntosh County, 327 Ga. App. 416,

         8
          We echo, however, Justice Nahmias’s observation that the trial court may
“exercise its broad discretion to enter protective orders governing discovery . . . to
focus discovery initially on the issue of whether any applicable ministerial duties
existed.” (Citations omitted.) Austin, 294 Ga. at 776-777 (Nahmias, J., concurring).
“If this initial and limited stage of discovery produces the likely result – that no such
ministerial duty exists – then the defendants could move for summary judgment to
end the case. If [the plaintiff] does find evidence of such a duty, more extensive and

                                           9
420 (3) (759 SE2d 269) (2014) (“At this early stage of the case, it was premature for

the trial court to conclude that [defendant’s] duties were discretionary rather than

ministerial . . . .”). Accordingly, the trial court’s order is reversed, and the case is

remanded for further proceedings consistent with this opinion.

      Judgment reversed and case remanded with direction. Barnes, P. J., and Ray,

J., concur.




expensive discovery into the issues of breach of the duty, causation, and damages
could proceed and would be warranted.” Id.

                                          10
