Fraud, etc. Fulton Superior Court. Before Judge Adams.
Clifford H. Hardwick, for appellants.
Lueder, Larkin & Hunter, John T. Lueder, Elina V. Brim, Weissman, Nowack, Curry & Wilco, Jason A. LoMonaco, for appellees.
Individual property owners appeal the grant of summary judgment in favor of the defendants in this suit arising out of structural problems at a condominium complex. As explained below, this Court does not have jurisdiction over one of the appellants' enumerations of error, and therefore it must be dismissed. With one exception, the [331 Ga.App. 773] remaining enumerations of error are without merit or have been abandoned. We therefore grant in part Stonepark's motion to dismiss
the appeal and affirm in part and reverse in part the trial court's decision.
This suit arises out of the fact that portions of a condominium complex were constructed on top of a waste pit and that as a consequence, one or more buildings have settled causing damage to the buildings. As the appellees readily admit:
There is no dispute that significant subsurface soil problems exist under at least a portion of the Stonepark development that have caused more than one building to settle. There is no dispute that some of the buildings in Stonepark were constructed over a " Debris Pit" resulting from when, in the 1980's, the developer of Stonepark apparently left felled trees in place and covered them with fill dirt. There is no dispute that this has caused soil subsidence over time as the organic material deteriorated and caused foundation settlement in the 1300 and 1400 Buildings where the foundation pile system did not extend below the Debris Pit to rock. There is no dispute that the Debris Pit has caused the Association significant expense and that all members of the Association, including the parties have had to pay additional assessments to finance the work needed to stabilize building foundations and make other repairs in the development.
In March 2012, in the Superior Court of Fulton County, appellant condominium owners (hereinafter " Headrick" or " appellants" ) filed suit against Stonepark of Dunwoody Unit Owners Association, Inc. and the individual members of its board of directors (the " Board Members" ). The suit is not one against a seller for failure to disclose known defects with the property. Rather, Headrick and the other appellants allege that although many repairs have been made, the appellants are entitled to damages and certain injunctive relief because the appellees falsely represented that the repairs would permanently correct the problems; wilfully misrepresented the nature and extent of the problems; failed to maintain the property; failed to produce documents regarding the problems and their resolution; conducted improper meetings of the board regarding the problems; violated association bylaws by, among other things, conducting closed [331 Ga.App. 774] meetings; and failed in other ways from acting properly vis-à-vis the appellants regarding resolution of the ongoing structural problems.
After the complaint was filed, the Board Members answered and moved for judgment on the pleadings and to dismiss the complaint. Stonepark, too, answered, and it counterclaimed and moved to dismiss certain counts of the complaint. On February 6, 2013, the court denied the Board Members' motion for judgment on the pleadings but granted their motion to dismiss claims for declaratory or injunctive relief; the court also granted in part and denied in part Stonepark's motion to dismiss.
The Board Members thereafter sought reconsideration of the February 6 order, including the trial court's decision not to treat their motion to dismiss as a motion for summary judgment due to the trial court's consideration of materials presented by the appellants which were outside of the pleadings. On June 17, 2013, the trial court granted the Board Members' motion to reconsider the denial of their motion for judgment on the pleadings and treated the motion as one for summary judgment. The court held that when the Board Members' motion was converted into a motion for summary judgment, the Board Members were entitled to judgment as a matter of law because the appellants failed to produce any evidence whatsoever, thus resolving all of the claims against the Board Members. Although the June 17, 2013 order of the trial court was ...