March 19, 2015
ABBEY ROAD CONDOMINIUM ASSOCIATION, INC
Counterclaim. DeKalb Superior Court. Before Judge Becker.
Natalie R. Rowland, for appellant.
Ian R. Rapaport, for appellee.
Doyle, Presiding Judge.
Precious Elekima appeals from the grant of summary judgment to Abbey Road Condominium Association, Inc. (" the Association" ), in his suit against it for damages arising from an alleged constructive eviction. Elekima contends that the trial court erred by ruling that his suit was barred because his claims should have been asserted as compulsory counterclaims in a prior successful action against him by the Association. For the reasons that follow, we 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. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in [331 Ga.App. 358] the light most favorable to the nonmoving party, warrant judgment as a matter of law.
The relevant facts are largely undisputed, and the record shows that Elekima owns 17 condominium units in a residential development that is subject to membership in the Association. The Association is responsible for maintenance of common areas and facilities in the development, which maintenance is funded by assessments on each member unit. In April 2010, the Association filed a verified complaint against Elekima seeking approximately $68,000 in unpaid assessments and to foreclose on liens arising from the unpaid assessments under OCGA § 44-3-109. The complaint sought a monetary award for the unpaid assessments plus interest and judicial foreclosure on the Association's lien against Elekima's properties.
After Elekima failed to file an answer, the trial court in August 2010 entered a final order and judgment in favor of the Association, awarding it $70,819.56 in damages and decreeing that the Association could foreclose its lien on Elekima's properties. In June 2011, the court entered an amended order that was revised only to list the specific 17 units subject to the lien. In August 2011, Elekima moved to re-open the default judgment and for reconsideration, arguing that the Association had wrongfully towed his vehicles, erased numbers from his parking spaces, changed the gate codes, and locked him out of his properties. The trial court denied the motion in August 2012.
In October 2012, Elekima filed the action that is the subject of this appeal. In his complaint against the Association, he claimed that the Association had wrongfully locked him out of the units since July 2011. Alleging a constructive eviction, Elekima sought losses in rent, damages arising from his inability to pay the mortgages on other rental property and his second home, and other damages arising from " [d]epression, [b]ankruptcy, and effects of bad credit."
The Association filed a timely answer, and on February 24, 2014, moved for summary judgment, arguing that Elekima's claims were compulsory counterclaims which he failed to bring in the prior litigation. Elekima filed a brief in response on March 31,
2014, [331 Ga.App. 359] tendering no evidence but arguing that the claims were independent of the prior action. The trial court granted the Association's motion on May 20, 2014, giving rise to this appeal.
Elekima argues that the trial court erred because his claims are based on actions taken by the Association starting on July 2011 that wrongfully restricted his access to the subject condominium units. Therefore, he argues, those actions could not have been addressed in the litigation that culminated in the June 2011 order awarding the Association damages and granting the foreclosure. We agree.
Essentially, a compulsory counterclaim is one which: 1) arises out of the same transaction or occurrence as the main claim; and 2) has matured at the time the answer is filed. Conversely, claims that mature or are acquired after the [defensive] pleading has been served are permissive rather than compulsory counterclaims.
Although Elekima failed to answer the prior suit, his constructive eviction claim was predicated on conduct by the Association that occurred after the conclusion of the Association's prior suit. Therefore, this claim matured after the answer was due, and it was a permissive, not compulsory counterclaim.
The distinction is critical for the following reason: The failure to plead a compulsory counterclaim can result in the party losing the right to assert that claim in a subsequent action. On the other hand, the failure to assert a permissive counterclaim at the proper time will only result in the party being unable to make the contentions in the suit in question, not that he will be barred in a future suit.
[331 Ga.App. 360] It follows that the trial court erred by granting summary judgment in favor of the Association on the ground that Elekima's suit should have been brought as a compulsory counterclaim in the Association's prior suit.
Miller and Dillard, JJ., concur.