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Hayek v. Chastain Park Condo. Ass'n

Court of Appeals of Georgia

September 25, 2014

HAYEK et al.

Condominium assessments. Fulton State Court. Before Judge Morrison.

Ford & Finnerty, Mark Ford, for appellants.

Winter Capriola Zenner, Elizabeth F. Taylor, for appellee.

ANDREWS, Presiding Judge. McFadden and Ray, JJ., concur.


Page 184

Andrews, Presiding Judge.

Joseph and Rosette Hayek appeal from an order granting summary judgment to Chastain Park Condominium Association, Inc. (" Chastain Park" ) for unpaid assessments and other charges associated with their ownership of a condominium. The Hayeks claim that the trial court erred in granting summary judgment on Chastain Park's claim for past due assessments because the only evidence supporting that claim constituted hearsay. They also claim that the trial court erred in awarding attorney fees because Chastain Park failed to prove the underlying debt, rendering its claim for attorney fees unreasonable and unrecoverable. For reasons that follow, we reverse.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga.App. 413, 413-414 (643 S.E.2d 883) (2007).

So viewed, the evidence showed that the Hayeks own a condominium in the Chastain Park Condominium development. Pursuant to the declaration governing the development, owners agree to pay annual assessments in equal monthly installments that are due on the first day of each month. If a monthly installment of the annual assessment is not paid in full by the tenth day of the month, a late charge of ten percent of the unpaid amount may be imposed and [329 Ga.App. 165] interest at the rate of ten percent per year will accrue from the due date. If assessments and other charges remain unpaid for 30 days or more, Chastain Park has the right to institute suit to recover all amounts due, including reasonable attorney fees actually incurred.

On February 6, 2012, counsel for Chastain Park sent a demand letter to the Hayeks seeking to recover $4,816.08 for past due assessments, interest, and late fees owed through January 31, 2012, the February 2012 assessment, and attorney fees. When payment in full was not received within 30 days, Chastain Park accelerated all assessments and other charges due through December 31, 2012, and filed suit against the Hayeks for $7,064.77, plus interest and attorney fees. The Hayeks were living in California at the time and exchanged numerous e-mails with Chastain Park's counsel, management company, and board of directors in an attempt to resolve issues related to the amounts sought. Those efforts were unsuccessful, and the Hayeks answered the complaint, denying the allegations regarding the amounts owed.

Chastain Park filed a motion for summary judgment on July 31, 2013. In its motion, Chastain Park sought $9,276.25 for assessments and $828.75 for late fees through July 2013, $1,253.42 for interest, and $9,592.10 for attorney fees and costs, for a total of $20,950.52. In support of its motion, Chastain Park submitted an affidavit from Robin Steinkritz, who had been the property manager since May 2011. Although Steinkritz averred that the Hayeks owed the amounts sought in the motion for summary judgment, he based his statements regarding the amounts owed on an account ledger attached to the affidavit. According to the account ledger, the Hayeks owed a total of $20,669.46 for assessments and other charges. That amount included a " balance forward" of $9,599.03 and charges for the period from August 1, 2012 through July 17, 2013 as follows: $2,912.76 for monthly assessments, $311.48 for late fees, $789.52 for interest, $202.40 for special assessments, and $11,671.24 for a category designated as " winter." The account ledger also reflected payments of $4,816.97.

In support of its claim for attorney fees, Chastain Park submitted an affidavit from its counsel, Stephen Winter. According to Winter,

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his law firm incurred $15,007.50 in attorney fees, $123.74 in expenses, and $250.70 in court costs in connection with this case. After applying payments made by the Hayeks first to costs and attorney fees and then to other charges, Winter averred ...

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