SECOND DIVISION AN DREWS , P. J., MCFADD EN and RA

Y, JJ. N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ September 25, 20 14



## In the Court of Appeals of Georgia
A14A1134. HAYEK

etal. v. CHASTAIN PARK CONDOMINIUM ASSOCIATIO

N, INC. ANDRE WS , Presiding Judge. Joseph and Rosette Hayek appeal from an order granting sum

mary judgm ent to Ch astain Pa

rk Condom

inium A ssociation, Inc. (“ Chastain P ark”) f or un pai d
assessm ents and other c harges as so ciat ed w it h t hei r ow ner sh ip of a con do min iu m. The Hayeks claim

that the trial court erred in granting summ ary judgm ent on Chast ain Park’s claim

for past du e ass ess ments because the only evidence supporting that claim con stituted h earsay . They also claim

that the tr

ial court erred in a

warding attorney fees bec ause Chast ain Park f ailed to pr ove the unde rlying

debt, re ndering its claim for attor ney fe es unreas onable and unreco verable. For re asons th at follow, we
reverse.2

Summ ary j udgmen

t is appropr

iate when there is no genuine issue of material fact and the m

oving party

is entitle d to judgm

ent as a matter

of law. OCGA

§ 9-11-56 (c). On appea l from

a gr ant of summa

ryjudgm ent, we

apply a de novo stand ard of review and view t

he evidenc e in the ligh

t most favorable t o the non movant. Walter R. Thomas A ssoc. v. Media Dy namite , 284 Ga. A pp. 413, 41 3-414 (643 S E2d 883) (2007). So viewed, the eviden ce showe d that the H ayeks own a cond o mini um in th e Chastain Park Condominium d evelopm ent. Pur suant to thedeclara tion governing the development, owners agree to pay annual ass essments in equal monthl y installmen

ts that are due on the first day of each m onth. If a monthly installm ent of the annual
ass essme nt is not p aid in full by the tenth day of the m onth, a late charge of ten percent o f the unpai d amount may be imposed and interest at the rate of ten percent per year will accrue from the due date. If assessments and other charges rem ai n unpaid for 3 0 da ys or mo re, Cha stain Par k has the ri ght to institut e suit to re cover all amounts due, i ncludin g reasonab le attorne y fees actually incu rred. On Februar

y 6, 20 12, counse l for Chas tain Par k sent a dem

and letter to the Hayeks seeking to r

ecover $4, 816.08 for

past due assessments, interest, and late fees owed through January 31, 2 012, the Febru ary 20 12 assessm ent, and a ttorney fees.3

When paym ent in full was not re ceived w ithin 30 day s, Chasta in Park acceler ated all
assessm ents and other c harges due through De cemb er 31, 2012 , and filed s uit against the Hayeks for $7,064.77, plus interest and attorney fees. The Hay eks were living in Californ iaat the tim

e and exchanged

numer ous em ails with Chastain P ark’s c ounsel,
manageme ntcompa ny, and Board of Directors in an attempt to resolve issues related to the am ounts sought. Those efforts were unsuccessful, and the Hayeks answered the complaint, den ying the alleg ations reg arding th e amounts owed. Chastain Park fil ed a m otion for su mmary j udgmen

t on July 3 1, 2013. In it s motion, Chastain Park sought $9,276.25 fo r as ses sme nts and $828.75 for late fees through July 201 3, $1,253. 42 for interest, and $9,592. 10 for attor ney fe es and cost s, for a total o f $20,950.52. In support of its motion, Chastain Park submitted an affidavi t from Robin Steinkritz, who had be en the property m anager since May

2011. Although Steinkrit z averred that the H ayeks owed the a mounts sought in the m

otion for summary judgment, h e based his statements regarding the amounts owed on an account ledger at tached to t

he affidavi t. Acc ording to the account ledger, the Hayeks owed a total of $20,669.46 for asse ssmen ts and other charges. That am ount included
a “bal ance for

ward” of $9,599.03 and charge s for the period from Aug ust 1, 2012 through July 17, 2013 as fo llows: $2,912.76 for m onthly a ssessm ents, $311. 48 for4

late fees, $ 7 89.52 for interest, $202. 40 for spec ial assess ments , and $11, 671.24 for
a category designated as “winter.” The acco unt le dger also r eflecte d paym

ents of $4,816.9 7. In support of i ts claim

for attor ney fe es, Chastain P ark subm itted an af

fidavit from its counsel , Stephe n Winter . Accor ding t o Win ter, his law firm incurred $15,007.50 in attorne y fee s, $123.74 in expenses , and $2 50.7 0 in court c osts in connection

with this case. After a

pplying p ayments m ade by the Hayeks first to costs and attorney fees and then to other

charges, Winter averred that the balance owed for attorney fees an d expense s was $9,592 .10. In response to the motion fo r sum mary judgm ent, the H ayeks disputed the amount s sought by

Chastain P ark and

submit ted an aff idavit in which David Hayek
ave rre d that ref

inancing document s showed tha t assessm ents on his c ondomin ium
were up to date as of

January 2011 and that

the prior property manageme nt com

pany had failed to cash his $2, 500 check for all 2011 ass essments. The Hay eks claimed that Chastain Park had faile d to prove it s case thr ough admissible evidence, arguing that Stein krit z’s unsupported sta teme nts regar ding the am

ounts owed a

nd the acc ount ledger on which he

relied w ere inadm

issible hea

rsay. They

also claim

ed that the attorney fees so ught by Chast ain Park were un reasonabl e and unreco verable.1 Georgia’s New E vidence Code became e ffective on January 1, 2013, a

nd applies to a

ny motion m ade on or a fter such date. G a. L. 2011, p.99 , § 101. 5 The trial cour

t granted C hastain Pa

rk’s m otion for su

mmary j udgmen

t and awarded damages in the am ount of $19,333.52. The court awar ded the am ount of
assessm ents, late fee s, and intere st sought in the summ ary j udgmen

t motion , but the attorney fee aw ard was $7, 975.10 instead of the $9,592. 10 sought in the motion
. 1. The Ha yeks c laim

that summar

y judgm ent should not

have been granted on Chastain Park’ s claim

for past du e sums because t he only evidence offered to support those clai ms – the

account le dger and S teinkritz ’s aff idavit testim ony re garding the amount s owed – wa s inadmissible hea rsay. We con clude that

the damages sought

are insufficiently certain, and therefore rever se. OCGA § 24-8-803 ( 6) provides an except ion to the he arsay

rule for
a mem orandum , report , recor

d, or data com pilation, in any f

orm, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near th e ti me of the desc ribed act s, events , conditi ons, opinions , or diagn oses; (B) made b y, or from information transmitted by, a per son with personal knowledgeand a business duty to report; (C) kept in the co urse of a regularl y conducted business activity; and (D) it was the regular practice of th at business ac tivity to make the m emorandum, report, record, or data compilation, all as shown by the testim

ony of the custodian or other qualified witness. 16

In his affidavit, Steinkritz averred that as the propert y m anager f or Chastain Park, he was familiar with the declaration for the development and that a true an d correct copy of the dul y recorded decla ration was at tached to his affidav it. Th e Hayeks admit that they

are condo minium

owners in

the Chasta

in Park de velopm ent and that they a

re requir ed to pay assessments pursua

nt to the dec laration

attached to Steinkrit z’s affidavit
. To prove the a

mounts owed

by the Hayeks, Chast ain Park s ought to adm it the applicable

account le dger throug

h Steinkri tz, who a

ver red that, as the prop erty manager, he was famil iar wit h Chas tain Park’s books and re cords, in cluding acc ount ledgers for indiv idual con dominium units and owners. He statedthat he was familiar with the accou

nt ledger f

or the Ha yeks a nd that it w as m ad e and m aintained in the regular and ordinar

y cour se of busine ss of the pr operty manageme nt com

pany a nd Chastain P ark. He did not state thatthe entrie s were m ade at or near the t

ime of the describedevents or t

hat the entries w ere m ade by , or fro m inf ormat ion tran smit ted by,
a pe rson with p ersonal k nowledge a nd a busi ness dut y to report. Cf. FDIC v. Sr i Chakra Group, LLC , No. 5:13-CV-268 (MTT), 2014 LEXI S 12701, at *12 (M.D. Ga. 2014) (business records properly authenticated under FRE 803 (6) where affiant states she m aintains c ustody, control, and supervi sion over relevant records and is2 “Be cause OC GA § 24-8 -803 m irrors R ule 803 of th e Federa

l Rules of Evidence, we will

look to case

law fro m federal courts wi thin the El eventh Cir cuit for guidance in interpreting that statute. See Ga. L. 2011, p. 99, § 1.” Ware v . MultiB ank 2009-1 RES-ADC Venture, LLC , 327 Ga. App. 245, 24 9 (2), n. 11 (758 SE 2d 145) (2014) (citations omitted). 7 personally

familiar with procedures used to m aintain thos e record s, recor ds are m ade in regul ar cou rse of

company’s business at

or near the time of the transactions they
r epresen t and it is the regular course of the company ’s business to make such records). 2 The initia l entry on the accou

ntledger f

or the Ha yeks is dated July

31, 2012, and is a char ge in the am

ou nt of $9 ,599.03, entitled “ balance f orward. ” Steinkr

itz does not explain what is included in this charge a nd no docum entation is attached to his affidavi t showing the

basis for the c harge. T

he rem aining char

ges are f or mon thly
assessm ents, special a ssessm ents, interest, la te fees, and

other charges and appear to be datedwhen they wereincurred . The le dger also s hows pay ments by the Hayeks for monthly assessments and special asses sm ents betw een August 2012 and July

2013 and a lum p sum paym ent of $2,184.57 in September 2012. There is no indication as to howthese pay

ments were a

pplied to the

amoun ts owed. With theinclusion of the und efine d “balance forwar d” and the failure to demonstrate how pay ments were8

allocate d, we are

unable to de termine the am ount of past ass essments still owe d and whether interest and late pa

ym ents were properl

y im posed and calculated. “Where a pa rty s ues for da

mage s, it has t

he burden of

proof of sh owing the amount of loss in a

mann e r in which

the trial judge ca n calcula te the am ount of the loss with a re asonable degree of certainty.” Ware , supra, 327 Ga. A pp. 245, 25 0 (2) (citation and punctua

tion om itted). Based on the current record, the am ount of damages is insuffic ientl y cer tain, the reby p recluding s ummary j udgmen t on the
amo unt of past due

assessments, lat e charge s, and interest. S ee id. a t 251; see als o SKC, Inc. v. eMAG

Solutions, LLC , 326 Ga. A pp. 798, 80 4 (3) (755 S E2d 298) (2014) (where docum entary

evidence supporting da mage s contains une xplained inconsistencies, summary judgment on the am ount of damages is not appropriate). 2. The Ha

yeks c lai m that

the awa rd of attor

ney fe es and expe nses m ust be reversed because Chastain Park failed to prove the underl

ying de bt, rendering its cl aim for attor ney fe es unreas onable and u nrecover able. Be cause issue s of fact remain regarding the reasonableness of the fees sought, we reverse. Chastain Park’ s decla

rati on provides that if assessments and other charges
rema in unpaid f

or 30 days, Chastain Park m ay file suit to collect all am ounts due, “incl uding reasonable attorney s ’ fees actually incurr ed.” Chastain Park’s counsel9

submitted an affid avit seeking attorney fees for time his firm

spent on this case, the expenses it incurred, and c ourt costs. The am ounts sought in W inter’ s affidav itdiffer from the am ounts awar

ded by t he court on summ

ary j udgmen

t, presum ably be cause amount s paid

by the Hay eks were applied to the attorney fees and costs, but as noted above, there is n o statement as to e xactly how the paym ents were allocated. Given those inconsisten cies and th e uncerta in ty regar ding the am

ount of unpai d assessments for which attorney fees were incurred, we cannot determine w hether the claimed fees
were reasonabl e. Thus, we reverse the awa rd of attor ney fe es and cost s. See g enerally Hershiser

v. Yorkshir

e Condo. A ssn. , 201 Ga. App. 185, 186 (2) (41 0 SE2d 455) (1991) (evidence showing no more than amount billed by att orney

is insuffic ient to establish reasonableness of claimed attorney fees); s ee also In re Jaco bs , 324 BR 402 , 409 (III) (Bankr. N.D. Ga. 2005 ) (fact that condom

inium a ssociation c ould lawf ully exercise legal re medie s upon hom eowner’ s default does not automatically m

ean that attorney fees inc urred in

exer cising those remedies are “ reasonable attorneys’ fees actually incurred”). Judgment r

eversed. McFadden and Ray, JJ., c oncur .