Condominium. Fulton Superior Court. Before Judge Schwall.
Stephen H. Robinson, India Y. Ali, for appellant.
Winter Capriola Zenner, Marvin P. Pastel II, David B. Weinberg, for appellees.
The Phoenix on Peachtree Condominium Association, Inc. (" the association" ), filed a complaint against Deon Grant, claiming that he had violated condominium rules by installing reflective tinting to the windows in his unit. Grant answered the complaint and filed a six-count counterclaim against the association and its president, Steve Marshall. Counts 1 and 2 of the counterclaim alleged breach of association bylaws; Count 3 alleged breach of fiduciary duty; Count 4 alleged violations of the Georgia Fair Housing Act; Count 5 sought punitive damages; and Count 6 sought attorney fees. The association and Marshall moved for summary judgment on all counts of the counterclaim. The trial court granted summary judgment to the association and Marshall as to Count 4 of the counterclaim, but denied summary judgment as to all other counts.
In Case No. A14A1703, Grant appeals from the grant of summary judgment as to Count 4 of his counterclaim. In Case No. A14A1704, the association and Marshall cross-appeal, challenging [331 Ga.App. 307] the denial of summary judgment on the remaining counts of the counterclaim. Having reviewed the evidence in the light most favorable to non-movant Grant, we find no evidence to support Appellant's claim of unequal treatment based on race or to support any of Grant's other allegations of misconduct. We therefore hold that the trial court correctly found that there exist no genuine issues of material fact as to Count 4, but erred in finding that there remain genuine issues of material fact as to the other counts. Accordingly, we affirm the judgment of the trial court in Case No. A14A1703, but reverse in Case No. A14A1704.
Case No. A14A1703
1. Motion to amend counterclaim.
Grant first contends that the trial court erred in denying his motion for leave to amend Count 4 of his counterclaim by adding a claim under OCGA § 8-3-222 of the Georgia Fair Housing Act to the claim originally asserted under OCGA § 8-3-202. As an initial matter, we note that Grant had the right to amend his counterclaim " as a matter of course and without leave of court at any time before the entry of a pretrial order." See OCGA § 9-11-15 (a). Regardless, Grant has not pointed to any ruling by the trial court denying the filing of the proposed amendment and it in fact appears from the record that there was no denial of the right to file the proposed amendment. Indeed, the trial court expressly referred to the proposed amendment in its summary judgment order and included that proposed claim in its ruling as to count four. The trial court ruled, " The Motion for Summary Judgment as to Count IV of the Counterclaim is granted. Count IV of the Counterclaim is dismissed, including the proposed amendment to Count IV, as to against both the Association and Marshall." (Emphasis supplied.) Because Grant has failed to show any ruling by the trial court denying the filing of the proposed amendment,
this enumeration presents no basis for reversal.
2. Summary judgment on Count 4.
Grant contends that the trial court erred in granting summary judgment to the association on Count 4 of his counterclaim because there are genuine issues of material fact as to whether the association violated OCGA § § 8-3-202 (a) (2) and 8-3-222 of the Georgia Fair Housing Act. The contention is without merit.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. A defendant may do this by [331 Ga.App. 308] either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims. Once a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. We review a grant of ...