dissenting.
I respectfully dissent, as it is time to end this litigation between neighbors.
1. Before addressing the issue of notice, I note that the appeal was originally filed in this Court, It was transferred to the Supreme Court because it is from the dismissal of a complaint for a restraining order, the primary relief requested. Plaintiffs only later added by amendment prayers for monetary damages. It is thus a suit in equity involving an extraordinary remedy. See Higgins v. Dept. of Public Safety, 256 Ga. 288 (347 SE2d 562) (1986). “Unless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of the following classes of cases: ... (2) All equity cases; . . .” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. The legislature has not provided otherwise. Thus it would appear that jurisdiction of the appeal is in the Supreme Court of Georgia. However, the case was transferred back to this Court, by the Supreme Court, which cited Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).
2. In the exercise of jurisdiction of the appeal, this Court should *765affirm the trial court with direction to enter summary judgment because the dismissal is in effect a summary judgment for defendants. The intended result is correct, but what must be clarified is that the case is properly ended. Where the trial court incorrectly grants summary judgment rather than a motion to dismiss, in cases such as Rehco Corp. v. Calif. Pizza Kitchen, 192 Ga. App. 92, 94 (383 SE2d 643) (1989), the Court has reversed and remanded. However, in Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 821 (2) (b) (377 SE2d 901) (1989), the Court affirmed with direction.
Plaintiffs had full notice that the trial court would consult the record in the first suit, i.e., Calk v. Aycock et al., CA No. 94-6451-4 (DeKalb Superior Court). In fact, plaintiffs referred to and purportedly attached a part of that record to their brief in support of their motion to strike defendants’ counterclaim. And the transcript of the hearing in the prior case has been made a part of the record in this case, at plaintiffs’ request in their notice of appeal. The prior suit was the very basis for plaintiffs’ own motion to strike defendants’ counterclaim. There is no need for further notice and opportunity to respond to the court’s sua sponte grant, in effect, of summary judgment to defendants. Based on the record in the prior suit, the Court did grant plaintiffs’ motion and dismissed the counterclaim. The same record establishes that the Aycocks even tried to bring into the testimony in the prior suit evidence of what they now complain and could have complained of then. Instead of filing a compulsory counterclaim, however, they filed a separate action before the hearing on the Calks’ lawsuit. For that reason, their own complaints were not relevant to the hearing on the Calks’ complaint for a permanent restraining order against the Aycocks, which was granted.
The trial court in this case found that “[tjhere is no dispute that this action, filed one day before the final hearing in Calk v. Aycock, arises out of the same set of facts which formed the basis for that action.” Plaintiffs do not demonstrate, by ordering transmittal of the record in the Calk case, that the pleadings show that the present suit arises out of a different transaction or occurrence than was the subject of the Calk suit. OCGA § 9-11-13 (a); Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154) (1991). It is their responsibility to do so. BankSouth, N.A. v. Zweig, 217 Ga. App. 77, 78 (2) (456 SE2d 257) (1995). Thus we must accept the trial court’s finding. See id.
Moreover, as recognized by the trial court, plaintiffs’ own motion to strike the counterclaim on the grounds of “collateral estoppel” admits that these claims of these former next-door neighbors against each other are “ ‘logically related.’ ” P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 4 (251 SE2d 72) (1978). See also Idowu v. Lester, 176 Ga. App. 713, 714 (1) (b) (337 SE2d 386) (1985). Claim preclu*766sion, or res judicata, bars this suit. See Sorrells Constr. Co. v. Chandler Armentrout &c., 214 Ga. App. 193, 194 (447 SE2d 101) (1994), for the distinction between res judicata and collateral estoppel.
Decided September 16, 1996. Lawrence D. Kupferman, Drew Findling, for appellants. John L. Welsh II, for appellees.