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Ashton Atlanta Residential, LLC v. Ajibola

Court of Appeals of Georgia

March 18, 2015

ASHTON ATLANTA RESIDENTIAL, LLC
v.
AJIBOLA et al

Negligent construction. Gwinnett Superior Court. Before Judge Clark.

FordHarrison, F. Carlton King, Jr., for appellant.

Bobby B. Terry, Ayoub & Mansour, John G. Mansour, Carolina D. Bryant, Swift Currie McGhee & Hiers, Ashley W. Broach, Charles B. Marsh, for appellees.

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

OPINION

Andrews, Presiding Judge.

Olakunle Ajibola and 31 other plaintiffs, homeowners in the Chattahoochee Bluffs townhouse community, filed a civil action against developer Ashton Atlanta Residential,

Page 312

LLC for damages resulting from broken and damaged water lines at the community.[1] Ashton filed a motion for summary judgment, and following briefing and a hearing, the Superior Court of Gwinnett County granted Ashton's motion in part and denied it in part.[2] The trial court granted [331 Ga.App. 232] Ashton a certificate for immediate review, and we granted Ashton's application for interlocutory appeal. For the reasons that follow, we conclude that the trial court erred in denying Ashton's motion for summary judgment on the Plaintiffs' claim of negligent construction, and therefore reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

La Quinta Inns v. Leech, 289 Ga.App. 812 (658 S.E.2d 637) (2008). We apply a de novo standard of review to an appeal from a grant or denial of summary judgment, " and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." (Punctuation omitted.) Layer v. Clipper Petroleum, 319 Ga.App. 410, 411 (735 S.E.2d 65) (2012).

The facts of record in this appeal are sparse. Viewed in a light most favorable to the Plaintiffs, the evidence revealed that Ashton served as the developer of the Chattahoochee Bluffs townhouse community in Cobb County. Chattahoochee Bluffs included 224 townhouses, which Ashton built and sold between 2003 and 2004. Of the 32 named plaintiffs, the most recent sale by Ashton closed on December 8, 2004. As of the date of closing on each townhouse sold, including the December 8, 2004 closing, each townhouse was substantially completed, " in that construction was sufficiently completed so that the purchaser could occupy the property for its intended use." In addition, Ashton created a homeowners' association, which it transferred to the residents in 2005.

[331 Ga.App. 233] 1. Ashton contends that, because the Plaintiffs filed their complaint on February 5, 2013, the Plaintiffs' action is barred by Georgia's statute of repose. See OCGA § 9-3-51. We agree.

Under Georgia law,

[n]o action to recover ...

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