Apple Pie Ridge Homeowners Ass'n, Inc v. Andrews

902 S.E.2d 665

APPLE PIE RIDGE HOMEOWNERS ASSOCIATION, INC.

v.ANDREWS et al.

A24A0244

Court of Appeals of Georgia.

May 29, 2024

Brandon David Wagner, Alpharetta, for Appellant.

P. Michael Freed, Brian Stephen Goldberg, Atlanta, for Appellee.

MARKLE, Judge.

Apple Pie Ridge Homeowners Association, Inc. (hereinafter "the Association") appeals from the trial court’s grant of summary judgment in favor of J. Scott Andrews and his wife, Karen Andrews (collectively "Andrews"), arising from a dispute regarding whether Andrews owed certain fees and assessments under the declaration of covenants governing the subdivision in which Andrews owns property. On appeal, the Association contends the trial court erred by granting Andrews’s motion because it misapplied the facts of the case to the law. After a thorough review of the record, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Salem Crossing Townhomes Homeowners Assoc. v. Wagner, 347 Ga. App. 621, 820 S.E.2d 453 (2018).

So viewed, the record shows that Apple Pie Ridge is a residential subdivision located in Banks County, Georgia, and Apple Pie Ridge Properties, LLC ("APRP") was the developer during the relevant time. In October 1996, the subdivision was governed by a declaration of covenants, conditions, and restrictions ("the declaration") filed by the previous developers. On May 30, 2002, APRP filed an amended declaration, which superseded the previous one, The declaration runs with the property, is binding on future property owners, and imposes certain conditions on homeowners, including payment of assessments to the Association.

As is relevant to this appeal, the declaration contains two pertinent provisions: (1) it grants APRP the right to unilaterally annex additional property to the declaration, subjecting the property to the terms of the declaration, and (2) it allows APRP to unilaterally withdraw portions of the development from the declaration under certain conditions. The declaration further provides that APRP’s annexation rights expire ten years after the recording of the declaration, and thus ended May 30, 2012. The declaration further permitted APRP to unilaterally amend the covenants and certain conditions.

In the ensuing years, APRP exercised its rights to amend the declaration seven times, with the sixth and seventh amendments being relevant here. In 2017, APRP amended the declaration a sixth time, withdrawing certain properties, identified as lots 3, 4, and 5 of phase 3. Several weeks later, it amended the declaration a seventh time to add those lots back under the declaration.

Andrews acquired lots 3, 4, and 5 in phase 3 in April 2020, believing the lots were not subject to the Association’s guidelines. Andrews intended to build a home and submitted construction plans to the Association. Shortly thereafter, this dispute over whether Andrews’s lots were subject to the declaration arose.

Initially, the Association contended the lots were not subject to the declaration and Andrews was not required to pay assessments.

Subsequently, the Association determined that Andrews’s lots were subject to the declaration because APRP had reacquired the lots via the seventh amendment to the declaration. Based on this belief, in July 2020, the Association sent Andrews an invoice for 2020 annual fees in the amount of $400 and an additional $400 transfer fee for each of the lots. When Andrews failed to pay, the Association’s attorney sent Andrews a demand letter, seeking past due assessments, other charges, and attorney fees.

In June 2021, Andrews filed a petition for declaratory judgment against the Association, seeking a determination that the properties were not subject to the declaration, and requesting the trial court to enjoin the Association from further attempts to collect on the debt. Andrews also sought attorney fees and costs of litigation under OCGA § 9-15-14. The Association answered and counterclaimed to collect the past due assessments. Andrews served the Association with discovery, including requests for admission. In the requests, Andrews sought the Association’s admissions that the declaration superseded the prior covenant recorded by the previous owner; the lots could be withdrawn from the declaration anytime before the conversion date; the conversion date had not yet occurred when the sixth amendment was recorded; the sixth amendment withdrew the lots from the declaration; APRP’s unilateral annexation rights could only be exercised within ten years of when the declaration was recorded; and the ten-year deadline expired prior to the recording of the seventh amendment. Receiving no response to the requests for admissions, Andrews moved for summary judgment. The Association likewise failed to respond to Andrews’s summary judgment motion.

After acquiring new counsel in January 2023, the Association moved to withdraw the admissions. It also moved for partial summary judgment as to Andrews’s claims for relief. Following a hearing, the trial court granted Andrews’s motion, enjoined the Association from further collection efforts; and denied the Association’s motions to withdraw the admissions and for partial summary judgment. This appeal followed.

[1] In its sole enumeration of error, the Association contends that the trial court erred by granting Andrews’s motion for summary judgment. Importantly, however, the Association does not appeal the trial court’s denial of its motion to withdraw admissions. As such, any challenge to the trial court’s denial of that motion is deemed abandoned, and the trial court’s ruling is...