Hoffman v. PMC DEVELOPMENT COMPANY, INC.

238 Ga. 258 (1977)

232 S.E.2d 541

HOFFMAN et al. v. PMC DEVELOPMENT COMPANY, INC. et al.

31508.

Supreme Court of Georgia.

Argued September 21, 1976.

Decided January 28, 1977.

Drew & Jones, James B. Drew, Jr., for appellants.

Horton, Crim & Latimore, Candler Crim, Jr., for *259 appellees.

JORDAN, Justice.

Appellants, purchasers of lots in a subdivision from appellees, brought suit alleging that the sales violated the Interstate Land Sales Disclosure Act and that appellees were ordered by the Department of Housing and Urban Development to refund to appellants all funds paid on said lots but that no refunds had been made.

Appellees filed a "motion to dismiss and plea of statute of limitations." The trial court granted the motion and appellants filed this appeal. We reverse.

The basis of the trial court's order was that the complaint was barred by the two-year statute of limitation. Since the complaint did not set out the dates when the sales took place, it is clear that the trial court considered matters outside the complaint. The appellees' motion should therefore have been treated as one for summary judgment and disposed of as provided in Code Ann. § 81A-156. Daylight Industries, Inc. v. Allen, 123 Ga. App. 69 (179 SE2d 542) (1970).

The affidavit of plaintiff Thomas and the deposition of defendant Meazell contain evidence which tends to show that appellants have a cause of action against PMC based on a contract to rescind. While it appears from our review of the record that appellees were entitled to judgment as a matter of law on the complaint based upon the violation of the Interstate Land Sales Disclosure Act, questions of fact remain as to the alleged contracts to rescind, and therefore summary judgment as to those grounds was improper.

Judgment reversed. All the Justices concur.