BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
Place Condominium Association, Inc. brought this action
against Habeeb Uddin seeking judicial foreclosure of its lien
against the condominium unit owned by Uddin and damages for
unpaid association fees. The trial court subsequently awarded
summary judgment to Country Place on its claims and entered
final judgment in its favor against Uddin. On appeal, Uddin
argues that he was never served with Country Place's
motion for summary judgment and thus was never provided any
notice or an opportunity to be heard on the motion before the
trial court ruled on it. Notably, Country Place concedes on
appeal that Uddin never received notice of its motion for
summary judgment because the motion was mailed to the wrong
address. Accordingly, we vacate the trial court's final
order granting summary judgment to Country Place, and we
remand the case to the trial court to afford Uddin an
opportunity to respond to the summary judgment motion before
it is ruled upon by the trial court.
relevant facts are undisputed. Uddin owned a condominium unit
in the Country Place development that was subject to
mandatory condominium association fees. Alleging that Uddin
had failed to pay his association fees, Country Place filed
this action against him seeking judicial foreclosure of its
lien on his condominium unit and damages. The complaint
alleged that Uddin currently resided at an address in
Alpharetta, Georgia, and the affidavit of service stated that
the summons and complaint had been served on a person over
the age of 18 identified as "Mr. Muzaffer" at the
pro se, Uddin filed an answer in which he denied any
liability for unpaid association fees and also denied that he
currently resided at the Alpharetta address alleged in the
complaint. Uddin provided a different address in Atlanta as
his current residence under his signature on his answer and
on the notarized verification form filed with his answer.
Place moved for summary judgment on its claims. The
certificate of service for the motion reflected that Country
Place mailed its motion to Uddin at the Alpharetta address
where the complaint had been served rather than to the
Atlanta address that Uddin had listed on his answer and
verification. Uddin did not respond to the motion for summary
judgment, and the trial court subsequently granted the motion
and entered final judgment in favor of Country Place. Uddin
retained counsel and filed the instant appeal.
A motion for summary judgment is a vehicle for disposing of a
controversy without the necessity of a trial. It is, as the
description shows, a summary disposition of the issues in
order to efficiently resolve litigation. Nevertheless, due
process requires that the respondent not be surprised;
rather, that he be given reasonable opportunity to refute the
movant's showing that there are no genuine issues of
material fact. It is error to grant a motion for summary
judgment . . . without giving notice or the opportunity to be
(Punctuation and footnotes omitted.) Cofield v. Halpern
Enterprises, 316 Ga.App. 582, 583 (730 S.E.2d 63)
the service of a motion for summary judgment on a party in an
ongoing proceeding, "the constitutional right to notice
and due process can be satisfied through . . . service by
mail in accordance with OCGA § 9-11-5 (b)."
Green Tree Servicing, LLC v. Jones, 333 Ga.App. 184,
189 (2) (775 S.E.2d 714) (2015), citing Southworth v.
Southworth, 265 Ga. 671, 674 (3) (461 S.E.2d 215)
(1995). See Freeman v. City of Brunswick, 193
Ga.App. 635, 635 (388 S.E.2d 746) (1989). OCGA § 9-11-5
(b) provides, in relevant part, that service of a motion can
be perfected on a party "by mailing it to the person to
be served at the person's last known address or, if no
address is known, by leaving it with the clerk of the
court." But service by mail on the wrong address where
"a simple review of the record would have revealed . . .
[a] change in . . . address, " with the result that the
person intended to be served was deprived of an opportunity
to be heard before the trial court ruled on the matter,
violates due process and requires that the court's ruling
be set aside. (Citation and punctuation omitted.) Moore
v. Davidson, 292 Ga.App. 57, 59-60 (663 S.E.2d 766)
(2008). See Mitsubish Motors Credit of America v.
Robinson & Stevens, 263 Ga.App. 168, 171 (1) (587
S.E.2d 146) (2003).
present case, Uddin asserts that Country Place's motion
for summary judgment was mailed to the wrong address,
depriving him of notice and an opportunity to be heard on the
motion before the trial court ruled on it, and Country Place,
to its credit, agrees with Uddin's assertion.
Consequently, we vacate the trial court's final order
granting summary judgment to Country Place and remand for
Uddin to have an opportunity to be heard before the motion is
ruled upon by the trial court. See Jackson v.
Bekele, 152 Ga.App. 417, 421 (2) (263 S.E.2d 225) (1979)
(trial court erred in granting summary judgment where the
party opposing the motion was never given notice and
opportunity to be heard on the motion). See Green Tree
Servicing, LLC, 333 Ga.App. at 190 (2) (vacating trial
court's order and remanding for further proceedings in
light of failure to provide party with notice and opportunity
to respond); Moore, 292 Ga.App. at 60 (setting aside
order where legal notice was mailed to wrong address);
Mitsubish Motors Credit of America, 263 Ga.App. at
171 (1) (setting aside order where legal notice was mailed to
wrong address). In so ruling, we express no opinion as to the
viability of any arguments or defenses Uddin may raise on
remand in response to Country Place's summary judgment
vacated and case remanded with direction.
McMillian and ...