THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, 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/
March 30, 2015
In the Court of Appeals of Georgia
A14A1711. HEADRICK et al v. STONEPARK OF DUNWOODY
UNIT OWNERS ASSOCIATION, INC. et al.
BRANCH, Judge.
Individual property owners appeal the grant of summary judgment in favor of
the defendants in this suit arising out of structural problems at a condominium
complex. As explained below, this court does not have jurisdiction over one of
appellants’ enumerations of error, and therefore it must be dismissed. With one
exception, the remaining enumerations of error are without merit or have been
abandoned. We therefore grant in part Stonepark’s motion to dismiss the appeal and
affirm in part and reverse in part the trial court’s decision.
This suit arises out of the fact that portions of a condominium complex were
constructed on top of a waste pit and that as a consequence, one or more buildings
have settled causing damage to the buildings. As the appellees readily admit:
There is no dispute that significant subsurface soil problems exist under
at least a portion of the Stonepark development that have caused more
than one building to settle. There is no dispute that some of the
buildings in Stonepark were constructed over a “Debris Pit” resulting
from when, in the 1980’s, the developer of Stonepark apparently left
felled trees in place and covered them with fill dirt. There is no dispute
that this has caused soil subsidence over time as the organic material
deteriorated and caused foundation settlement in the 1300 and 1400
Buildings where the foundation pile system did not extend below the
Debris Pit to rock. There is no dispute that the Debris Pit has caused the
Association significant expense and that all members of the Association,
including the parties have had to pay additional assessments to finance
the work needed to stabilize building foundations and make other repairs
in the development.
In March 2012, in the Superior Court of Fulton County, appellant
condominium owners (hereinafter “Headrick” or “appellants”) filed suit against
Stonepark of Dunwoody Unit Owners Association, Inc. and the individual members
of its board of directors (the “Board Members”). The suit is not one against a seller
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for failure to disclose known defects with the property.1 Rather, Headrick and the
other appellants allege that although many repairs have been made, the appellants are
entitled to damages and certain injunctive relief because the appellees falsely
represented that the repairs would permanently correct the problems; wilfully
misrepresented the nature and extent of the problems; failed to maintain the property;
failed to produce documents regarding the problems and their resolution; conducted
improper meetings of the board regarding the problems; violated association bylaws
by, among other things, conducting closed meetings; and failed in other ways from
acting properly vis-a-vis the appellants regarding resolution of the ongoing structural
problems.
After the complaint was filed, the Board Members answered and moved for
judgment on the pleadings and to dismiss the complaint.2 Stonepark, too, answered,
and it counterclaimed and moved to dismiss certain counts of the complaint. On
1
At least one of the appellants — Headrick himself — has filed such a suit
against the person from whom he purchased a unit and the property management
company.
2
The Board Members’ motion mistakenly named the property management
association in the title as the movant; the remainder of the motion shows that it was
made by the Board Members, and the trial court subsequently granted a motion to
correct the misnomer.
3
February 6, 2013, the court denied the Board Members’ motion for judgment on the
pleadings but granted their motion to dismiss claims for declaratory or injunctive
relief; the court also granted in part and denied in part Stonepark’s motion to dismiss.
The Board Members thereafter sought reconsideration of the February 6 order,
including the trial court’s decision not to treat their motion to dismiss as a motion for
summary judgment due to the trial court’s consideration of materials presented by
appellants which were outside of the pleadings. On June 17, 2013, the trial court
granted the Board Members’ motion to reconsider the denial of their judgment on the
pleadings and treated the motion as one for summary judgment. The court held that
when the Board Members’ motion was converted into a motion for summary
judgment, the Board Members were entitled to judgment as a matter of law because
the appellants failed to produce any evidence whatsoever, thus resolving all of the
claims against the Board Members. Although the June 17, 2013 order of the trial
court was directly appealable under OCGA § 9-11-56 (h) (“An order granting
summary judgment on any issue or as to any party shall be subject to review by
appeal.”), Headrick did not appeal the June 17 order.
In the meantime, Stonepark moved for summary judgment on all remaining
claims against it. On October 10, 2013, the trial court granted the motion in full.
4
Stonepark’s counterclaims, however, remain pending below, and therefore the
October 10 order is not a final order. Headrick timely filed a notice of appeal, as
authorized by OCGA § 9-11-56 (h), following the October 10 summary judgment
order.
1. The appellees have moved to dismiss those portions of the appeal that
challenge the February 6 and June 17, 2013 orders on the ground that we do not have
jurisdiction.
(a) To the extent Headrick is appealing the February 6, 2013 order, we have
jurisdiction because of his timely direct appeal of the trial court’s October 10 order
pursuant to OCGA § 9-11-56 (h). The general rule is that “when a direct appeal is
taken, any other judgments, rulings or orders rendered in the case and which may
affect the proceedings below may be raised on appeal and reviewed and determined
by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d
199) (1980). In Patterson v. Bristol Timber Co., 286 Ga. App. 423 (649 SE2d 795)
(2007), the appellant appealed a non-final order granting summary judgment to one
defendant and sought review of two earlier interlocutory orders that were not directly
appealable. Id. at 425 (1), 426 (2), n. 4. This Court determined that it had jurisdiction
over the two interlocutory orders under the general rule quoted above. Id. at 426 (2).
5
Here, the February 6 order was a non-final ruling on two motions to dismiss and
therefore was not directly appealable. See generally Board of Regents v. Canas, 295
Ga. App. 505, 506 (1) (672 SE2d 471) (2009) (order denying motion to dismiss a
certain claim is not a directly appealable final judgment). The October 10 order,
however, was the proper subject of a direct appeal. Accordingly, we have jurisdiction
to review the February 6 order to the extent Headrick has challenged any of the
holdings therein.
(b) We do not, however, have jurisdiction of the appeal of the June 17, 2013
order. In enumeration of error “B,” Headrick challenges the trial court’s June 17
order, which was a non-final order granting summary judgment in favor of the Board
Members on all claims asserted against them. The order, therefore, was directly
appealable under OCGA § 9-11-56 (h), but the appellants chose not to appeal at that
time.
This Court has held that where a party has failed to timely appeal from a grant
of partial summary judgment, “[that party cannot] obtain appellate review of that
ruling in an appeal from a subsequent grant of partial summary judgment, where the
latter order [does] not constitute a final judgment in the case.” Hutchison v. Nat. Svc.
Indus., 191 Ga. App. 885, 886 (1) (383 SE2d 212) (1989) (citations omitted). This
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holding is a recognized exception to the general rule that once a case is on appeal, all
rulings previously made by the trial court are subject to review. Id. As stated in
Hutchison,
Such an exception is . . . appropriate in that a grant of partial summary
judgment, unlike most other non-final orders, is immediately appealable
as a matter of right, with the result that a party who chooses not to bring
a direct appeal from such an order may reasonably be deemed to have
made an election to wait until a final judgment has been entered in the
case to challenge the ruling.
Id. See also Jones v. White, 311 Ga. App. 822, 832-833 (4) (717 SE2d 322) (2011).
Although OCGA § 5-6-34 (d) allows this Court to consider all prior orders rendered
in the case “without regard to the appealability” of the order standing alone and
“without regard to whether the . . . order appealed from was final or was appealable
by some other express provision of law,” that Code section, by its express terms,
applies only when the appeal is taken under subsection (a), (b), or (c) of this Code
section, i.e., final judgments, certified interlocutory reviews, and one aspect of death
penalty cases. Here, Headrick timely noticed his appeal of the October 10, 2013
order, and his appeal is authorized by OCGA § 9-11-56 (h), not by OCGA § 5-6-34
7
(a), (b) or (c). Accordingly, OCGA § 5-6-34 (d) does not provide us jurisdiction to
consider Headrick’s appeal of the June 17, 2013 order.
Because Headrick chose not to appeal the June 17, 2013 order at that time, he
has elected to wait until a final order is issued in the trial court before appealing that
ruling; accordingly, this court does not have jurisdiction of any assertion of error
regarding that order and it must be dismissed. See Hutchinson, supra; Jones, supra.
The dismissal resolves all assertions of error pertaining to Headrick’s claims against
the Board Members.
2. In one of his remaining enumerations of error, Headrick argues that the trial
court failed to rule in a timely manner on the appellees’ motions to dismiss and failed
to convert their motions to dismiss into a motion for summary judgment. These
arguments are without merit.
OCGA § 9-11-12 (j) provides that if a party files a motion to dismiss at or
before the time of the answer, discovery shall be stayed for 90 days during which time
the trial court “shall” decide the motion to dismiss:
If a party files a motion to dismiss before or at the time of filing an
answer and pursuant to the provisions of this Code section, discovery
shall be stayed for 90 days after the filing of such motion or until the
ruling of the court on such motion, whichever is sooner. The court shall
8
decide the motion to dismiss within the 90 days provided in this
paragraph.
OCGA § 9-11-12 (j) (1). Here, the Board Members filed an answer and a motion to
dismiss on April 26, 2012; Stonepark filed a motion to dismiss on May 11, 2012,
about two weeks after its answer. The trial court did not rule on either motion to
dismiss until February 6, 2013, well beyond the 90-time specified in OCGA § 9-11-
12 (j). But as the appellees point out, it is well established that even though a statute
imposing a time limitation uses the word “shall,” if the statute does not provide for
any sanction or negative consequence for a failure of the trial court to rule within that
time period, the limitation is to be read as merely directory. Charles H. Wesley Ed.
Foundation v. State Election Bd., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007); Cobb
County v. Robertson, 314 Ga. App. 455, 457 (724 SE2d 478) (2012). Here, OCGA
§ 9-11-12 does not provide a sanction or consequence for a trial court’s failure to
meet the 90-day time limitation, and accordingly, there is no reversible error.
Headrick’s assertion that the trial court erred by refusing to convert the Board
Members’ motion to dismiss into a motion for summary judgment is without merit
given that the trial court did exactly that on June 17, 2013 when it ruled on the motion
to reconsider its earlier ruling.
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3. Headrick contends the trial court erred by granting summary judgment3 to
Stonepark on one aspect of Headrick’s claim of fraud. Although the trial court
appears to have granted summary judgment on all aspects of Headrick’s claim of
fraud, Stonepark failed to move for summary judgment on a second aspect of
Headrick’s claim of fraud and therefore summary judgment on that aspect was
erroneous.
In paragraphs 17-21 of the complaint, Headrick alleged that although
Stonepark has attempted to repair the structural problems in the condominium
buildings, it falsely represented to the current condominium owners that the repairs
would permanently correct the problems even though Stonepark knew that more
repairs would be necessary in the future. In paragraphs 37-42, Headrick alleged that
Stonepark failed to disclose the nature and extent of the structural problems to
prospective condominium purchasers. In its motion for summary judgment,
Stonepark sought summary judgment only on the claim that it defrauded prospective
purchasers, and in the corresponding order, the trial court addressed only that claim,
3
Although one of Headrick’s enumerated errors refers to Stonepark’s “Partial
Motion for Judgment on the Pleadings,” in the argument section of the brief,
Headrick clearly states that he challenges the trial court’s grant of Stonepark’s motion
for summary judgment.
10
yet it appears that the trial court granted summary judgment on all aspects of the fraud
claim. On appeal, Headrick does not challenge the trial court’s ruling on the claim
regarding prospective purchasers; rather, Headrick asserts that the trial court erred by
granting summary judgment on its claim that Stonepark defrauded the current
condominium owners. Stonepark responds that the trial court’s ruling should be
affirmed because it was right for other reasons.
“A grant of summary judgment must be affirmed if it is right for any reason,
whether stated or unstated in the trial court’s order, so long as the movant raised the
issue in the trial court and the nonmovant had a fair opportunity to respond.”
Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (citations and
punctuation omitted; emphasis in original). Because Stonepark did not move for
summary judgment on Headrick’s claim that Stonepark defrauded the current
condominium owners, application of the right-for-any-reason rule is not appropriate.
Id.; see also Thunderbolt Harbour Phase II Condo. Assn. v. Ryan, 326 Ga. App. 580,
583 (2) (a) (757 SE2d 189) (2014) (where defendant did not raise alternative
argument for summary judgment in trial court, this Court could not use that argument
to affirm the trial court’s decision as right for any reason) (physical precedent only).
Here, because Stonepark never sought summary judgment on Headrick’s fraud claim
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regarding the current condominium owners, the trial court’s order must be reversed
to the extent that it purports to resolve all of Headrick’s claims of fraud.
Stonepark’s argument that the appellants abandoned this remaining claim of
fraud in their brief filed in response to Stonepark’s motion for summary judgment is
without merit. A review of the statement made by Headrick in his brief in opposition
to summary judgment, upon which Stonepark relies, shows that it was merely an
acknowledgment of an earlier trial court ruling, not abandonment of a claim. Thus,
Headrick did not abandon this claim.
4. Headrick argues that the trial court erred by granting summary judgment on
Count III of the complaint. In Count III, Headrick asserted that Stonepark has a duty
to inspect the common areas, determine what maintenance is needed, and effect
repairs, but that it has failed to perform these duties, thereby resulting in a decrease
in value of the condominiums and allowing dangerous conditions and health hazards
to exist. In response to Stonepark’s motion for summary judgment on this count, the
trial court first concluded that
based on the court’s review of the record, Plaintiffs’ complaint is not
that [Stonepark] has failed to perform maintenance on the common areas
but that Plaintiffs disagree with the methods recommended by
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[Stonepark’s] engineer to repair the subsurface soil issues at the
condominium.
The court then concluded that Stonepark is protected by the business judgment rule,
that is, in the words of the trial court, “that courts will not interfere in matters
involving merely the judgment of the majority in exercising control over corporate
affairs.” The trial court further found that Stonepark was authorized to rely on the
advice of its engineer in determining what steps to take to remedy the ongoing
structural problems. Finally, because the undisputed evidence showed that Stonepark
in fact relied upon its engineer, the trial court found that Headrick’s complaints about
what steps Stonepark used to address the structural problems were not actionable.
See, e.g., Vernon Bowdish Builder v. Spalding Lake Homeowners Assn., 196 Ga. App.
370, 371 (396 SE2d 24) (1990) (“controversy concerning a difference between the
judgment and actions taken by the board of directors of the homeowners’ association
and the judgment of plaintiff . . . member of the homeowners’ association” was not
actionable).
On appeal, Headrick argues that although the trial court’s reasoning was sound,
the trial court misconstrued the complaint in that the appellants also claim that
Stonepark has failed to repair “multiple problems with sink holes, cracks in the
13
sidewalks, stairs pulling away from walls, and other problems that do not require
major work,” thereby creating dangerous conditions, all in violation of its duty to
maintain the common area. But Headrick cites only to photographs of some of these
conditions and fails to provide any supporting information that might describe the
nature of the problems, when they occurred, what efforts have been taken to address
them, or similar information. Most importantly, Headrick has not shown that any of
the photographs are not related to the major structural problems that exist at the
Stonepark development. Accordingly, Headrick has not shown that the trial court
erred.
5. Headrick contends the trial court also erred by granting summary judgment
on Counts IV and V of the complaint.4 In these claims, the appellants asserted that
Stonepark breached its duty to the property owners by failing to give notice of and
hold meetings in accordance with Stonepark’s bylaws and by failing to keep and
make available records of the meetings, thereby improperly excluding the appellants
from association meetings and preventing them from knowing what transpired at the
meetings. The trial court granted summary judgment on both counts. The court held
4
Although Headrick only specifically refers to Count IV, the argument shows
that Headrick intends to assert error with regard to Count V as well.
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that (1) Stonepark operated in compliance with its bylaws with regard to holding
meetings; (2) Stonepark acted within the bylaws and Georgia law when it excluded
Headrick, who was a director at the time, from the September 21, 2010 meeting of the
board of directors because Headrick had a conflict of interest; (3) Headrick did not
show that Stonepark breached a duty with regard to keeping association meeting
minutes; and (4) Headrick failed to show that the appellants suffered any damages as
a result of the alleged violations.
On appeal, Headrick has not attempted to challenge the trial court’s conclusion
that these claims fail because the appellants have failed to show any damages.
Headrick therefore has abandoned any claimed error on one of the independent
grounds that the trial court based its decision. See Court of Appeals Rule 25 (c) (2);
Rolleston v. Estate of Sims, 253 Ga.App. 182, 188 (8) (558 SE2d 411) (2001) (error
deemed abandoned if not supported by citation to legal authority or to the record). It
follows that Headrick cannot show that the trial court erred by granting summary
judgment on Counts IV and V of the complaint.
6. For the same reasons — lack of argument or citation to authority or the
record, Headrick has also abandoned any claim that the trial court erred by granting
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summary judgment on the remaining claims addressed by the trial court in the
October 10, 2013 order.
Judgment affirmed in part, reversed in part and dismissed in part. Barnes, P.
J., and Boggs, J., concur.
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