313 Ga. App. 424
Ga. Ct. App.2011Background
- Ellington appeals the grant of summary judgment in Gallery Condominium Association, Inc.'s suit to recover unpaid assessments, utilities, interest, and attorney fees.
- Ellington argues genuine issues of material fact exist and that attorney fees were not properly awarded.
- The association sought to recover amounts allegedly due under the condominium declaration and OCGA § 44-3-109 (b)(3).
- Ellington admitted she agreed to pay a portion of assessments but requested an accounting for additional charges beyond that amount.
- The trial court granted summary judgment, concluding Ellington had not paid since September 1, 2009 and that the association proved the amounts owed.
- The court also awarded costs and attorney fees under the statute; on appeal, the issue is whether the evidence supports those rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether utilities can be charged as a common expense | Ellington asserts utilities were not proved as a chargeable common expense. | Gallery argues declaration and statute authorize charging utilities as common expenses. | Yes; utilities may be charged as common expenses under the declaration and statute. |
| Whether method of calculating/recording utilities created a material fact issue | Ellington contends conflicting records show disputed amounts. | Gallery contends the trial court implicitly approved amendments and evidence supports the amount. | No triable issue; records support the amount due as of filing. |
| Whether the affidavits were properly admitted despite hearsay concerns | Ellington challenges hearsay in Burton and Welchel affidavits. | Affidavits satisfy business records and authenticity; admissible and relied upon. | Affidavits properly admitted; any hearsay issues not reversible error. |
| Whether attorney fees were proper under OCGA § 44-3-109 (b) (3) | Ellington argues fees were not requested in the complaint and may be improper. | Statute authorizes collection costs and reasonable attorney’s fees; declaration grants right to seek them. | Attorney fees were mandatory under the statute. |
| Whether the amount of fees awarded was reasonable | Ellington challenges reasonableness based on fee amount. | Evidence presented at hearing supported the fee award; transcript unavailable precludes review. | Reasonableness cannot be reviewed without transcript; award affirmed. |
Key Cases Cited
- Atlanta Georgetown Condo. Assn. v. Chaplin, 235 Ga. App. 460 (1998) (contractual interpretation of condo instruments)
- Frantz v. Piccadilly Place Condo. Assn., 278 Ga. 103 (2004) (condo instruments analogous to express contract; strict construction)
- Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240 (2002) (interpretation of common expense language)
- Pew v. One Buckhead Loop Condo. Assn., 305 Ga. App. 456 (2010) (implicit amendment by subsequent proceedings under OCGA § 9-11-15)
- Spell v. Bible Baptist Church, 166 Ga. App. 22 (1983) (business records exception to hearsay)
- Springs Condo. Assn. v. Harris, 297 Ga. App. 507 (2009) (mandatory award of attorney fees under statute)
- Hosseini v. Donino, 222 Ga. App. 697 (1996) (appellate review of evidentiary matters; admissibility considerations)
- Solon Automated Suits. v. Crescent Court Apartments, 132 Ga. App. 593 (1974) (review of trial court evidence under summary judgment standard)