SECOND DIVISION MILLER, P. J., MARKLE and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 29, 2024
In the Court of Appeals of Georgia A24A0244. APPLE PIE RIDGE HOMEOWNERS ASSOCIATION, INC. v. ANDREWS et al.
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 SE2d 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amended declaration, which superseded the previous one.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
2 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
3 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
4 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.
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 affirmed by operation of law. Cotton v. Smith,
310 Ga. App. 428, 429 (1) (714 SE2d 55) (2011); see also Goodwin v. State of Ga., 321
Ga. App. 548, n. 1 (739 SE2d 814) (2013); Kelley v. General Motors Acceptance Corp.,
5 145 Ga. App. 739, 741 (5) (244 SE2d 911) (1978). Accordingly, for purposes of this
appeal, the Association’s admissions are undisputed and it is from this perspective
that we begin our analysis.
Without directly contesting its admissions, the Association argues that the trial
court erred by granting Andrews’s summary judgment motion because Andrews was
bound by the declaration through a theory of implied covenants. But the Association’s
argument fails to acknowledge the preclusive effect its admissions have on its ability
to make such an argument.
It is well settled that a party’s failure to timely respond to requests for admission conclusively establishes as a matter of law each of the matters addressed in the requests. This is true even if the requested admissions require opinions or conclusions of law, so long as the legal conclusions relate to the facts of the case.
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION MILLER, P. J., MARKLE and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 29, 2024
In the Court of Appeals of Georgia A24A0244. APPLE PIE RIDGE HOMEOWNERS ASSOCIATION, INC. v. ANDREWS et al.
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 SE2d 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
2 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
3 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
4 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.
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 affirmed by operation of law. Cotton v. Smith,
310 Ga. App. 428, 429 (1) (714 SE2d 55) (2011); see also Goodwin v. State of Ga., 321
Ga. App. 548, n. 1 (739 SE2d 814) (2013); Kelley v. General Motors Acceptance Corp.,
5 145 Ga. App. 739, 741 (5) (244 SE2d 911) (1978). Accordingly, for purposes of this
appeal, the Association’s admissions are undisputed and it is from this perspective
that we begin our analysis.
Without directly contesting its admissions, the Association argues that the trial
court erred by granting Andrews’s summary judgment motion because Andrews was
bound by the declaration through a theory of implied covenants. But the Association’s
argument fails to acknowledge the preclusive effect its admissions have on its ability
to make such an argument.
It is well settled that a party’s failure to timely respond to requests for admission conclusively establishes as a matter of law each of the matters addressed in the requests. This is true even if the requested admissions require opinions or conclusions of law, so long as the legal conclusions relate to the facts of the case. The language in OCGA § 9-11-36 (a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission. Thus, matters deemed admitted under this statute become solemn admissions in judicio and are conclusive as a matter of law on the matters stated and cannot be contradicted by other evidence unless the admissions are withdrawn or amended on formal motion.
6 (Citation omitted; emphasis supplied.) Blount v. College Glen Condo. Assn., 362 Ga.
App. 133, 134-135 (1) (866 SE2d 843) (2021); Adewumi v. Amelia Grove/Ashland Park
Homeowners Assn., 337 Ga. App. 275, 277 (2) (787 SE2d 761) (2016); OCGA § 9-11-36
(a) (1), (b).
Because the trial court denied the Association’s request to withdraw those
admissions, the requests were deemed admitted by operation of law, and the
Association cannot rely on contrary evidence or inconsistent defenses to dispute them.
McClarty v. Trigild Inc., 339 Ga. App. 691, 693 (794 SE2d 408) (2016) (“Unless the
trial court allows the admission to be withdrawn, see OCGA § 9-11-36 (b), the
admission is not subject to contradiction or explanation. The factfinder cannot
consider any evidence inconsistent with the binding effect of the admission.”)
(citations omitted); see also Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 771 (691
SE2d 653) (2010); Vaughn v. Metropolitan Property & Cas. Ins. Co., 260 Ga. App. 573,
575 (3) (580 SE2d 323) (2003).
As such, the Association has admitted that the sixth amendment withdrew
Andrews’s lots from the declaration, and that APRP’s unilateral annexation rights had
expired prior to any efforts by APRP to annex the lots back under the declaration.
7 Accordingly, the Association has admitted that Andrews’s lots do not fall under the
provisions of the declaration, and thus are not subject to the Association’s
assessments and fees. Additionally, the effect of the admissions precludes the
Association from now asserting defenses inconsistent with those admissions.
McClarty, 339 Ga. App, at 693.
Given our conclusion here, we do not reach the Association’s arguments
regarding an implied covenant. We likewise do not reach the Association’s argument
regarding the limited warranty deeds and the validity of the sixth amendment to the
declaration, as the Association failed to raise them in the trial court below and obtain
a ruling thereon. Pneumo Abex, lLLC v. Long, 357 Ga. App. 17, 29 (2) (849 SE2d 746)
(2020) (“As we have repeatedly explained, this is a Court for the correction of errors
of law, and if the trial court has not ruled on an issue, we will not address it. Indeed,
without a ruling by the trial court on a particular issue, there is nothing for this Court
to review upon appeal.) (citation and punctuation omitted). Accordingly, the trial
court did not err in granting Andrews’s motion for summary judgment, and we affirm.
Judgment affirmed. Miller, P. J., and Land, J., concur.