THIRD DIVISION

BARNES, P. J.,

BOGGS and BRANCH, 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.

http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia

A14A1711. HEADRICK et al v. STONEPARK OF DUNWOODY

UNIT OWNERS ASSOCIATION, INC. et al. 

BRANCH, Judge.

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

appellants’ enumerations of error, and therefore it must be dismissed. With one

exception, the 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 thatsignificantsubsurface 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 allmembers of the Association,

including the parties have had to pay additional assessments to finance

the work needed to stabilize building foundations andmake 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

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for failure to disclose known defects with the property.1 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 meetings; and failed in other ways from

acting properly vis-a-visthe appellantsregarding 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.

2 Stonepark, too, answered,

and it counterclaimed and moved to dismiss certain counts of the complaint. On

1 At least one of the appellants — Headrick himself — has filed such a suit

against the person from whom he purchased a unit and the property management

company. 

2 The Board Members’ motion mistakenly named the property management

association in the title as the movant; the remainder of the motion shows that it was

made by the Board Members, and the trial court subsequently granted a motion to

correct the misnomer. 

3
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 Membersthereafter 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

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 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 directly appealable under OCGA § 9-11-56 (h) (“An order granting

summary judgment on any issue or as to any party shall be subject to review by

appeal.”), Headrick did not appeal the June 17 order.

In the meantime, Stonepark moved for summary judgment on all remaining

claims against it. On October 10, 2013, the trial court granted the motion in full.

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Stonepark’s counterclaims, however, remain pending below, and therefore the

October 10 order is not a final order. Headrick timely filed a notice of appeal, as

authorized by OCGA § 9-11-56 (h), following the October 10 summary judgment

order. 

1. The appellees have moved to dismiss those portions of the appeal that

challenge the February 6 and June 17, 2013 orders on the ground that we do not have

jurisdiction. 

(a) To the extent Headrick is appealing the February 6, 2013 order, we have

jurisdiction because of his timely direct appeal of the trial court’s October 10 order

pursuant to OCGA § 9-11-56 (h). The general rule is that “when a direct appeal is

taken, any other judgments, rulings or orders rendered in the case and which may

affect the proceedings below may be raised on appeal and reviewed and determined

by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d

199) (1980). In Patterson v. Bristol Timber Co., 286 Ga. App. 423 (649 SE2d 795)

(2007), the appellant appealed a non-final order granting summary judgment to one

defendant and sought review of two earlier interlocutory ordersthat were not directly

appealable. Id. at 425 (1), 426 (2), n. 4. This Court determined that it had jurisdiction

over the two interlocutory orders under the general rule quoted above. Id. at 426 (2).

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Here, the February 6 order was a non-final ruling on two motions to dismiss and

therefore was not directly appealable. See generally Board of Regents v. Canas, 295

Ga. App. 505, 506 (1) (672 SE2d 471) (2009) (order denying motion to dismiss a

certain claim is not a directly appealable final judgment). The October 10 order,

however, wasthe proper subject of a direct appeal. Accordingly, we have jurisdiction

to review the February 6 order to the extent Headrick has challenged any of the

holdings therein.

(b) We do not, however, have jurisdiction of the appeal of the June 17, 2013

order. In enumeration of error “B,” Headrick challenges the trial court’s June 17

order, which was a non-final order granting summary judgment in favor of the Board

Members on all claims asserted against them. The order, therefore, was directly

appealable under OCGA § 9-11-56 (h), but the appellants chose not to appeal at that

time. 

This Court has held that where a party has failed to timely appeal from a grant

of partial summary judgment, “[that party cannot] obtain appellate review of that

ruling in an appeal from a subsequent grant of partial summary judgment, where the

latter order [does] not constitute a final judgment in the case.” Hutchison v. Nat. Svc.

Indus., 191 Ga. App. 885, 886 (1) (383 SE2d 212) (1989) (citations omitted). This

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holding is a recognized exception to the general rule that once a case is on appeal, all

rulings previously made by the trial court are subject to review. Id. As stated in

Hutchison,

Such an exception is . . . appropriate in that a grant of partial summary

judgment, unlike most other non-final orders, isimmediately appealable

as a matter of right, with the result that a party who chooses not to bring

a direct appeal from such an order may reasonably be deemed to have

made an election to wait until a final judgment has been entered in the

case to challenge the ruling. 

Id. See also Jones v. White, 311 Ga. App. 822, 832-833 (4) (717 SE2d 322) (2011).

Although OCGA § 5-6-34 (d) allows this Court to consider all prior orders rendered

in the case “without regard to the appealability” of the order standing alone and

“without regard to whether the . . . order appealed from was final or was appealable

by some other express provision of law,” that Code section, by its express terms,

applies only when the appeal is taken under subsection (a), (b), or (c) of this Code

section, i.e., final judgments, certified interlocutory reviews, and one aspect of death

penalty cases. Here, Headrick timely noticed his appeal of the October 10, 2013

order, and his appeal is authorized by OCGA § 9-11-56 (h), not by OCGA § 5-6-34

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(a), (b) or (c). Accordingly, OCGA § 5-6-34 (d) does not provide us jurisdiction to

consider Headrick’s appeal of the June 17, 2013 order.

Because Headrick chose not to appeal the June 17, 2013 order at that time, he

has elected to wait until a final order is issued in the trial court before appealing that

ruling; accordingly, this court does not have jurisdiction of any assertion of error

regarding that order and it must be dismissed. See Hutchinson, supra; Jones, supra.

The dismissal resolves all assertions of error pertaining to Headrick’s claims against

the Board Members.

2. In one of his remaining enumerations of error, Headrick argues that the trial

court failed to rule in a timely manner on the appellees’ motionsto dismiss and failed

to convert their motions to dismiss into a motion for summary judgment. These

arguments are without merit.

OCGA § 9-11-12 (j) provides that if a party files a motion to dismiss at or

before the time of the answer, discovery shall be stayed for 90 days during which time

the trial court “shall” decide the motion to dismiss:

If a party files a motion to dismiss before or at the time of filing an

answer and pursuant to the provisions of this Code section, discovery

shall be stayed for 90 days after the filing of such motion or until the

ruling of the court on such motion, whichever is sooner. The court shall

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decide the motion to dismiss within the 90 days provided in this

paragraph.

OCGA § 9-11-12 (j) (1). Here, the Board Members filed an answer and a motion to

dismiss on April 26, 2012; Stonepark filed a motion to dismiss on May 11, 2012,

about two weeks after its answer. The trial court did not rule on either motion to

dismiss until February 6, 2013, well beyond the 90-time specified in OCGA § 9-11-

12 (j). But as the appellees point out, it is well established that even though a statute

imposing a time limitation uses the word “shall,” if the statute does not provide for

any sanction or negative consequence for a failure of the trial court to rule within that

time period, the limitation is to be read as merely directory. Charles H. Wesley Ed.

Foundation v. State Election Bd., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007); Cobb

County v. Robertson, 314 Ga. App. 455, 457 (724 SE2d 478) (2012). Here, OCGA

§ 9-11-12 does not provide a sanction or consequence for a trial court’s failure to

meet the 90-day time limitation, and accordingly, there is no reversible error.

Headrick’s assertion that the trial court erred by refusing to convert the Board

Members’ motion to dismiss into a motion for summary judgment is without merit

given that the trial court did exactly that on June 17, 2013 when it ruled on the motion

to reconsider its earlier ruling. 

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3. Headrick contends the trial court erred by granting summary judgment

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to

Stonepark on one aspect of Headrick’s claim of fraud. Although the trial court

appears to have granted summary judgment on all aspects of Headrick’s claim of

fraud, Stonepark failed to move for summary judgment on a second aspect of

Headrick’s claim of fraud and therefore summary judgment on that aspect was

erroneous.

In paragraphs 17-21 of the complaint, Headrick alleged that although

Stonepark has attempted to repair the structural problems in the condominium

buildings, it falsely represented to the current condominium owners that the repairs

would permanently correct the problems even though Stonepark knew that more

repairs would be necessary in the future. In paragraphs 37-42, Headrick alleged that

Stonepark failed to disclose the nature and extent of the structural problems to

prospective condominium purchasers. In its motion for summary judgment,

Stonepark soughtsummary judgment only on the claim that it defrauded prospective

purchasers, and in the corresponding order, the trial court addressed only that claim,

3 Although one of Headrick’s enumerated errors refers to Stonepark’s “Partial

Motion for Judgment on the Pleadings,” in the argument section of the brief,

Headrick clearly statesthat he challengesthe trial court’s grant of Stonepark’s motion

for summary judgment. 

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yet it appearsthat the trial court granted summary judgment on all aspects of the fraud

claim. On appeal, Headrick does not challenge the trial court’s ruling on the claim

regarding prospective purchasers; rather, Headrick asserts that the trial court erred by

granting summary judgment on its claim that Stonepark defrauded the current

condominium owners. Stonepark responds that the trial court’s ruling should be

affirmed because it was right for other reasons.

“A grant of summary judgment must be affirmed if it is right for any reason,

whether stated or unstated in the trial court’s order, so long as the movant raised the

issue in the trial court and the nonmovant had a fair opportunity to respond.”

Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (citations and

punctuation omitted; emphasis in original). Because Stonepark did not move for

summary judgment on Headrick’s claim that Stonepark defrauded the current

condominium owners, application of the right-for-any-reason rule is not appropriate.

Id.; see also Thunderbolt Harbour Phase II Condo. Assn. v. Ryan, 326 Ga. App. 580,

583 (2) (a) (757 SE2d 189) (2014) (where defendant did not raise alternative

argument for summary judgment in trial court, this Court could not use that argument

to affirm the trial court’s decision as right for any reason) (physical precedent only).

Here, because Stonepark never soughtsummary judgment on Headrick’sfraud claim

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regarding the current condominium owners, the trial court’s order must be reversed

to the extent that it purports to resolve all of Headrick’s claims of fraud.

Stonepark’s argument that the appellants abandoned this remaining claim of

fraud in their brief filed in response to Stonepark’s motion for summary judgment is

without merit. A review of the statement made by Headrick in his brief in opposition

to summary judgment, upon which Stonepark relies, shows that it was merely an

acknowledgment of an earlier trial court ruling, not abandonment of a claim. Thus,

Headrick did not abandon this claim.

4. Headrick argues that the trial court erred by granting summary judgment on

Count III of the complaint. In Count III, Headrick asserted that Stonepark has a duty

to inspect the common areas, determine what maintenance is needed, and effect

repairs, but that it has failed to perform these duties, thereby resulting in a decrease

in value of the condominiums and allowing dangerous conditions and health hazards

to exist. In response to Stonepark’s motion for summary judgment on this count, the

trial court first concluded that

based on the court’s review of the record, Plaintiffs’ complaint is not

that[Stonepark] hasfailed to performmaintenance on the common areas

but that Plaintiffs disagree with the methods recommended by

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[Stonepark’s] engineer to repair the subsurface soil issues at the

condominium. 

The court then concluded that Stonepark is protected by the business judgment rule,

that is, in the words of the trial court, “that courts will not interfere in matters

involving merely the judgment of the majority in exercising control over corporate

affairs.” The trial court further found that Stonepark was authorized to rely on the

advice of its engineer in determining what steps to take to remedy the ongoing

structural problems. Finally, because the undisputed evidence showed that Stonepark

in fact relied upon its engineer, the trial court found that Headrick’s complaints about

what steps Stonepark used to address the structural problems were not actionable.

See, e.g., VernonBowdishBuilder v. Spalding Lake HomeownersAssn., 196 Ga. App.

370, 371 (396 SE2d 24) (1990) (“controversy concerning a difference between the

judgment and actionstaken by the board of directors of the homeowners’ association

and the judgment of plaintiff . . . member of the homeowners’ association” was not

actionable).

On appeal, Headrick arguesthat although the trial court’s reasoning wassound,

the trial court misconstrued the complaint in that the appellants also claim that

Stonepark has failed to repair “multiple problems with sink holes, cracks in the

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sidewalks, stairs pulling away from walls, and other problems that do not require

major work,” thereby creating dangerous conditions, all in violation of its duty to

maintain the common area. But Headrick cites only to photographs of some of these

conditions and fails to provide any supporting information that might describe the

nature of the problems, when they occurred, what efforts have been taken to address

them, or similar information. Most importantly, Headrick has not shown that any of

the photographs are not related to the major structural problems that exist at the

Stonepark development. Accordingly, Headrick has not shown that the trial court

erred.

5. Headrick contends the trial court also erred by granting summary judgment

on Counts IV and V of the complaint.

4

In these claims, the appellants asserted that

Stonepark breached its duty to the property owners by failing to give notice of and

hold meetings in accordance with Stonepark’s bylaws and by failing to keep and

make available records of the meetings, thereby improperly excluding the appellants

from association meetings and preventing them from knowing what transpired at the

meetings. The trial court granted summary judgment on both counts. The court held

4 Although Headrick only specifically refers to Count IV, the argument shows

that Headrick intends to assert error with regard to Count V as well. 

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that (1) Stonepark operated in compliance with its bylaws with regard to holding

meetings; (2) Stonepark acted within the bylaws and Georgia law when it excluded

Headrick, who was a director at the time, from the September 21, 2010 meeting of the

board of directors because Headrick had a conflict of interest; (3) Headrick did not

show that Stonepark breached a duty with regard to keeping association meeting

minutes; and (4) Headrick failed to show that the appellants suffered any damages as

a result of the alleged violations. 

On appeal, Headrick has not attempted to challenge the trial court’s conclusion

that these claims fail because the appellants have failed to show any damages.

Headrick therefore has abandoned any claimed error on one of the independent

grounds that the trial court based its decision. See Court of Appeals Rule 25 (c) (2);

Rolleston v. Estate of Sims, 253 Ga.App. 182, 188 (8) (558 SE2d 411) (2001) (error

deemed abandoned if not supported by citation to legal authority or to the record). It

follows that Headrick cannot show that the trial court erred by granting summary

judgment on Counts IV and V of the complaint.

6. For the same reasons — lack of argument or citation to authority or the

record, Headrick has also abandoned any claim that the trial court erred by granting

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summary judgment on the remaining claims addressed by the trial court in the

October 10, 2013 order. 

Judgment affirmed in part, reversed in part and dismissed in part. Barnes, P.

J., and Boggs, J., concur.

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