Sadlowski v. Beacon Management Services, Inc. , 348 Ga. App. 585 ( 2019 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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
February 11, 2019
In the Court of Appeals of Georgia
A18A1841. SADLOWSKI v. BEACON MANAGEMENT
SERVICES, INC.
DILLARD, Chief Judge.
Eric Sadlowski appeals from the trial court’s grant of summary judgment to
Beacon Management Services, Inc., on his action to recover damages for personal
injuries that he sustained in an attack by an unknown assailant near his condominium
complex, which Beacon managed. Sadlowski contends, inter alia, that the court erred
by granting summary judgment when there was a genuine issue of material fact as to
whether Beacon had a duty to provide security.1 For the reasons set forth infra, we
affirm.
1
Although Sadlowski also brought suit against the condominium complex’s
homeowners’ association (“HOA”), he does not challenge that grant of summary
judgment and, thus, the HOA is not a party to this appeal.
Viewed in the light most favorable to Sadlowski (i.e., the nonmoving party),2
the record shows that at the time relevant to this appeal, he was a new resident in a
downtown Atlanta condominium complex, having moved there in February 2014. The
declarations for the condominium explained that the complex did not provide, and
was not responsible for providing, security to residents. Instead, each resident had
responsibility for his or her own safety. Nevertheless, Sadlowski averred that, as part
of his decision to purchase his unit, he considered what he deemed security measures
surrounding the condominium complex property, including controlled-access vehicle
and pedestrian gates.
Sadlowski moved forward with his purchase, but when he closed on his
condominium, he did not receive an access-gate key fob from the seller. Instead, he
was advised by the seller’s real estate agent that the property management company
for the complex would provide it to him. Accordingly, both before and during the
closing on his unit, Sadlowski’s real estate agent contacted Beacon about acquiring
an access fob. And Sadlowski was told that he would be provided with a fob no later
than a few days after closing. But Sadlowski did not receive a key fob until March 4,
2
See, e.g., Sherman v. Dickey, 322 Ga. App. 228, 231 (1) (744 SE2d 408)
(2013) (“[W]e apply a de novo standard of review and, thus, view the evidence in a
light most favorable to the nonmoving party.” (footnote omitted)).
2
2014, approximately two-and-a-half weeks after closing on his unit. At that time, a
fob was given to him by the HOA board president.
Immediately after receiving his key fob, Sadlowski attempted to use it to open
the vehicle-access gate. But no matter how close he got to the gate, the fob would not
open the gate, and Sadlowski then called and left text messages with the HOA
president to inform him of the problem. The president did not respond to these
inquiries.
Thereafter, Sadlowski reached out to Beacon, the management company,
contacting the owner/CEO, president, and accountant by phone and text message on
multiple occasions. In his communications with Beacon’s CEO, Sadlowski was told
that his fob “should be working,” even though it had yet to work.
In the midst of attempting to obtain a working key fob, approximately one
month after moving into his unit, Sadlowski was violently attacked on the sidewalk
just outside of the condominium complex. And at the time of the attack, Sadlowski’s
name and number still were not entered into the controlled-access gate system,
making it impossible for him to call himself through the pedestrian-gate access box
to open the gate via his cell phone, and his vehicle-access-gate key fob still did not
3
work either.3 Thus, without a way to access the complex through a controlled-access-
gate mechanism, Sadlowski was limited to waiting for another resident to drive
through the parking gate so that he could follow behind.
The attack on Sadlowski occurred after he and his then-girlfriend arrived home
a little after 2:00 a.m. on March 9, 2014, following dinner and drinks with friends.
That night, Sadlowski once again attempted to enter the complex through the vehicle-
access gate, but his key fob still was not working. As a result, Sadlowski and his
girlfriend waited 15 to 20 minutes for another vehicle to enter the gate before growing
tired and deciding to park on the street.4
Sadlowski exited his Mercedes convertible to assist his girlfriend, who was
driving, in parallel parking on the street beside the vehicle-access gate. As he was
doing so, while standing on the sidewalk alongside the condominium complex, he
was approached from behind by an unknown knife-wielding assailant, who pressed
the weapon against Sadlowski’s throat and demanded his wallet. Believing the man
3
Sadlowski only acquired access to the complex by either manner two days
after the attack.
4
According to Sadlowski, this was not the first time that he arrived home to the
complex at or after 2:00 a.m., but it was the first time he had been unable to follow
another vehicle into the parking lot at that hour.
4
ultimately intended to rob him and to hijack his Mercedes, which still contained his
girlfriend, Sadlowski managed to break free of the perpetrator’s headlock, and the
two fought. During the struggle that ensued, Sadlowski was stabbed three times—on
the arm, in the ribs, and in the back—before the assailant fled and took off in a
vehicle parked down the street. Sadlowski’s girlfriend called law enforcement for
help, and he was then transported to the hospital via ambulance to receive medical
attention, including surgery. As a result, he incurred medical costs exceeding
$40,000.
Sadlowski filed suit against Beacon in 2015, seeking to recover damages
related to allegations of negligence in its provision of security to the complex. But
Beacon filed a motion for summary judgment in 2017, denying that it was responsible
for providing security. In response, Sadlowski argued that the condominium
declarations’ disclaimer regarding security measures applied only to the complex
HOA, not Beacon, and that Beacon’s assumption of security responsibilities modified
the declarations anyway. Following a hearing, the trial court granted Beacon’s motion
for summary judgment. This appeal follows.
5
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.”5 And we review a grant
or denial of summary judgment de novo, viewing all evidence in the light most
favorable to the non-moving party.6 Furthermore, the party opposing summary
judgment is “not required to produce evidence demanding judgment for it, but is only
required to present evidence that raises a genuine issue of material fact.”7 With these
guiding principles in mind, we turn now to Sadlowski’s arguments on appeal.
1. Sadlowski argues that the grant of summary judgment was erroneous when
there are genuine issues of material fact as to whether Beacon had a duty to provide
security to the condominium complex. Additionally, in a separate enumeration of
error, Sadlowski challenges the trial court’s conclusion that Beacon was not
providing “security” to the complex and had no duty to provide security on a public
sidewalk (i.e., the court’s conclusion that Sadlowski was not within the approaches
of the condominium). We disagree with Sadlowski that Beacon was providing
5
Navy Fed. Credit Union v. McCrea, 337 Ga. App. 103, 105 (1) (786 SE2d
707) (2016) (punctuation omitted).
6
Id.7
Montgomery Cnty. v. Hamilton, 337 Ga. App. 500, 502-03 (788 SE2d 89)
(2016) (punctuation omitted).
6
security to the residents of the condominium complex or had a duty to provide
security to the residents.
In bringing his complaint, Sadlowski sought to recover damages under theories
of negligence and gross negligence as to Beacon’s failure to provide him with a
working key fob for the vehicular-access gate to the condominium complex. And it
is well established that, in order to state a cause of action for negligence in Georgia,
the following elements must be shown:
(1) [a] legal duty to conform to a standard of conduct raised by the law
for the protection of others against unreasonable risks of harm; (2) a
breach of this standard; (3) a legally attributable causal connection
between the conduct and the resulting injury; and (4) some loss or
damage flowing to the plaintiff’s legally protected interest as a result of
the alleged breach of the legal duty.8
8
Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 200 (1) (296 SE2d 693) (1982)
(punctuation omitted); accord Schaff v. Snapping Shoals Elec. Membership Corp.,
330 Ga. App. 161, 163 (1) (767 SE2d 807) (2014); see Hayes v. Lakeside Home
Owners Ass’n, Inc., 282 Ga. App. 866, 869-70 (2) (640 SE2d 373) (2006) (holding,
in case in which plaintiffs made claims for negligence and gross negligence, that
when “there was no duty to inspect on the part of the [defendant], and the [plaintiffs]
were bound to use the common area at their own risk, we fail to see how a higher
degree of negligence on the part of the [defendant] can reasonably be inferred”).
7
In granting summary judgment to Beacon, the trial court concluded that (1)
Beacon owed no duty to provide security on a public sidewalk, (2) Sadlowski had
equal or superior knowledge that his access fob was inoperable at the time of the
incident, and (3) Sadlowski assumed the risk of injury when he decided to physically
engage with his attacker. As to the HOA, which again is not a party to this appeal, the
trial court granted summary judgment for these same reasons but also for the
additional reason that the condominium declarations included a valid and binding
exculpatory clause as to the provision of security, relieving the HOA of the duty to
provide same.
In Sadlowski’s enumerated errors on appeal, he asserts, inter alia, that the “trial
court erroneously held as a matter of law that Beacon owed no duty to provide
security to Eric Sadlowski.”9 But in the argument section of his brief, he abandons
this assertion by failing to support it with argument, citation to authority, or citation
to the record.10 Indeed, Sadlowski fails to cite any authority to support the assertion
9
See CT. OF APPEALS R. 25 (a) (2) (“Part Two [of Appellant’s brief] shall
consist of the enumeration of errors and shall contain a statement of jurisdiction as
to why this Court, and not the Supreme Court, has jurisdiction. A separately filed
enumeration of errors is not required.”).
10
See CT. OF APPEALS R. 25 (a) (3) (“Part Three [of Appellant’s brief] shall
contain the argument and citation of authorities. It shall also include a concise
8
that Beacon had such a duty. And duty, of course, is a threshold element of any
negligence claim.11
Sadlowski also challenges the trial court’s conclusion that Beacon was not
providing “security” to the complex and that it had no duty to provide security on a
public sidewalk. But setting aside the issue of whether or not the sidewalk was within
the condominium’s approaches, Sadlowski still was required to demonstrate that
Beacon had a duty to provide security to the residents.12 Thus, even if Sadlowski had
statement of the applicable standard of review with supporting authority for each
issue presented in the brief.”); CT. OF APPEALS R. 25 (c) (1) (“The sequence of
arguments in the briefs shall follow the order of the enumeration of errors, and shall
be numbered accordingly.”); CT. OF APPEALS R. 25 (c) (2) (“Any enumeration of error
that is not supported in the brief by citation of authority or argument may be deemed
abandoned.”); CT. OF APPEALS R. 25 (c) (2) (i) (“Each enumerated error shall be
supported in the brief by specific reference to the record or transcript. In the absence
of a specific reference, the Court will not search for and may not consider that
enumeration.”); see also, e.g., Brown v. State, 313 Ga. App. 714, 714 (722 SE2d 439)
(2012) (“[The] appellate brief wholly failed to support [the] enumerated error as
required by our court rules or otherwise to comport with our court rules regarding the
structure and content of briefs. Consequently, we deem the claim of error abandoned,
and we will not consider it.”). Even still, it is not entirely clear from the trial court’s
order that it did conclusively decide that Beacon owed no duty to provide security at
the complex as a matter of law.
11
See supra note 8 & accompanying text.
12
See Martin v. Six Flags Over Ga. II, L.P., 301 Ga. 323, 330 (I) (A) (801
SE2d 24) (2017) (“[A]lthough the landowner’s duty is to maintain safety and security
within its premises and approaches, liability may arise from a breach of that duty that
9
supported his argument that Beacon owed a duty to provide any security with citation
to authority and cogent argument, the “Declaration of Condominium” for the complex
explicitly placed the responsibility for each resident’s security solely with the
resident.13
To begin with, the Declaration of Condominium was submitted to the
governing provisions of the Georgia Condominium Act,14 which provides that “[e]ach
unit owner shall automatically be a member of the [homeowners] association[,]”15 and
proximately causes injuries even if the resulting injury ultimately is completed
beyond that territorial sphere.”).
13
Although the trial court appears to have limited its holding to the HOA and
to have questioned, at the motion hearing, the viability of such an argument as applied
to Beacon, the argument that the exculpatory clause applied to Beacon so as to bar
liability was, nevertheless, before the court. And we may affirm the trial court’s grant
of summary judgment if it was right for any reason when the legal basis for such
reason was fairly presented to the trial court. See, e.g., Cook Pecan Co. v. McDaniel,
337 Ga. App. 186, 192 (3) (b) (786 SE2d 852) (2016) (“We may affirm the trial
court’s grant of summary judgment if it is right for any reason, whether stated or
unstated, so long as the legal basis was fairly presented in the court below.”). Cf.
Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 503 (2) (748 SE2d 407) (2013) (holding
that “right for any reason” rule could not be used to affirm grant of summary
judgment when alternative basis relied upon by Court of Appeals had not been raised
in the motion for summary judgment).
14
OCGA § 44-3-70 et seq.
15
OCGA § 44-3-100 (a).
10
unit owners agree to be bound by the provisions of their condominium instruments.16
Additionally, under the Act, any purchaser of a unit at Sadlowski’s condominium
complex “has an absolute right to void a sales contract within a period of seven days
after receiving the condominium instruments containing the terms under which the
purchaser agrees to be bound by virtue of his purchase.”17 Moreover, as we have
previously explained,
a condominium association is an artificial entity created for the benefit
of the unit owners/members thereof. A condominium association’s
obligations and responsibilities toward the condominium property are
dependent upon those allocated to it by the Act and those stated in the
16
See OCGA § 44-3-76 (“Every unit owner and all those entitled to occupy a
unit shall comply with all lawful provisions of the condominium instruments. In
addition, any unit owner and all those entitled to occupy a unit shall comply with any
reasonable rules or regulations adopted by the association pursuant to the
condominium instruments which have been provided to the unit owners and with the
lawful provisions of bylaws of the association.”); Bradford Square Condo. Ass’n v.
Miller, 258 Ga. App. 240, 246 (1) (a) (573 SE2d 405) (2002) (“Each owner agrees to
be bound by the provisions contained in the condominium instruments.” (citing
OCGA § 44-3-76)).
17
Miller, 258 Ga. at 246 (1) (a); see OCGA § 44-3-111 (b) (“Any covered
contract shall be voidable by the buyer until at least seven days after the seller has
furnished to the prospective buyer the documents specified in this subsection.”);
OCGA § 44-3-111 (c) (1) (“Any covered contract shall be voidable by the buyer until
at least seven days after the seller has furnished to the buyer all of the items required
to be furnished under this Code section.”).
11
condominium instruments, i.e., the declaration and bylaws, as decided
by a majority of unit owners/association members.18
Finally, it is the paramount public policy of this state that “courts will not
lightly interfere with the freedom of parties to contract.”19 And a party to a contract
may “waive or renounce that which the law has established in his or her favor, when
it does not thereby injure others or affect the public interest.”20 To that end,
exculpatory clauses in Georgia are “valid and binding, and are not void as against
public policy when a business relieves itself from its own negligence.”21
Here, Paragraph 19 (a) of the condominium declarations provides in
capitalized, bold letters as follows:
The Association . . . may, but shall not be required to, from time
to time, provide measures or take actions which directly or indirectly
improve safety on the condominium; however, each owner, for himself
or herself and his or her tenants, guests, licensees, and invitees,
acknowledges and agrees that . . . the Association . . . is [not] a provider
18
Miller, 258 Ga. at 244 (1) (a) (citing OCGA § 44-3-71 (8); OCGA § 44-3-
106 (a), (d), (f); OCGA § 44-3-100).
19
Id. at 246 (1) (a) (punctuation omitted).
20
Id. (punctuation omitted).
21
Id. (punctuation omitted).
12
of security and . . . shall [not] have a duty to provide security on the
condominium. Furthermore, the Association does not guarantee that
non-unit owners and non-occupants will not gain access to the property
and commit criminal acts on the property[,] nor does the Association
guarantee that criminal acts on the property shall not be committed by
other unit owners or occupants. It shall be the responsibility of each
owner to protect his or her person and property[,] and all responsibility
to provide such security shall lie solely with each unit owner. . . . [T]he
Association shall [not] be held liable for any loss or damage by reason
or failure to provide adequate security or ineffectiveness of safety
measures undertaken.22
In addition to this disclaimer, the declarations provide under the HOA’s “rights
and restrictions” that the HOA has, through its board of directors, the “right and
authority” to “control, manage, operate, maintain, improve and replace all portions
of the Area of Common Responsibility[.]” And “Area of Common Responsibility” is
defined to mean “the Common Elements, together with those areas, if any, which by
the terms of the Declaration or by contract or agreement with any other person or
22
(Emphasis omitted). Earlier in this document, “Association” is defined as the
complex’s homeowners’ association, “its successors or assigns.” Additionally,
“Board” or “Board of Directors” is defined as “the body responsible for management
and operation of the Association.”
13
entity become the responsibility of the Association.”23 The declarations further
delineate that the HOA is responsible for maintenance of the common areas, as
follows: “The Association shall maintain and keep in good repair . . . the ‘Area of
Common Responsibility,’ which includes . . . all Common Elements[.]” Elsewhere in
the declaration, “Common Elements” is defined to mean “all portions of the
Condominium not located within the boundaries of a Unit,” and the document further
provides that this includes, but is not limited to, inter alia, “fences[;] entry feature and
lighting for same[;] . . . outside parking area and lighting for same[;] all other
lighting, personal property, equipment and furniture in any Common Element of the
Condominium buildings[;] and limited access gated entry systems.”
It is undisputed that Beacon contracted with the HOA to undertake
responsibility for management of the complex and its “Common Elements.” Indeed,
when Beacon took over management responsibilities for the complex in July 2013,
the key-fob entry system at the property was already in existence. Beacon’s CEO
testified that in its management contract, the company did not have responsibility to
provide security for condominium occupants or their guests. And although the
23
Under the terms of the declaration, ownership of the Common Elements is
by “Unit Owners as tenants-in-common.”
14
contract between the HOA and Beacon does not appear in the record, it is undisputed
that such a contract exists, and Sadlowski did not challenge this assertion by
Beacon’s CEO as to contractual responsibility.
Through the then-existing controlled-access system, the complex property was
only accessible by one parking gate and one pedestrian gate. Beacon managed the
internet-based operational software for the entry system. But it is undisputed that the
complex HOA and Beacon shared responsibility for maintenance, repair, and
upgrades of the access system from 2013 to 2014, and a third-party vendor was used
to repair the activator boxes during that period. Additionally, when new tenants
moved to the complex, they would contact Beacon to acquire access to the property
via the key-fob system. But Beacon’s owner and CEO testified that, at the time of
Sadlowski’s attack, the HOA board of directors held the extra key fobs for
distribution. And indeed, as explained supra, Sadlowski’s key fob was provided to
him by the HOA board president.
Thus, according to this testimony, by way of its contract with the HOA, Beacon
took on some of the Association’s responsibilities and duties as it related to
maintenance of the access-gate system and other items within the condominium’s
Common Elements. But as made explicitly clear by the terms of the condominium
15
declarations, this specific access system, and any other safety measures, are not
guarantees of security at the complex, although they may have “directly or indirectly
improve safety . . . .” Instead, it is “the responsibility of each owner to protect his or
her person and property” and “all responsibility to provide such security [lay] solely
with each unit owner.”
In the trial court below, Sadlowski attempted to circumvent this language in the
declaration by suggesting that installation of “security measures” and Beacon’s
provision of management responsibilities, including its services regarding access
gates, somehow modified, or amended, the declarations. But the declarations provide,
in relevant part, that,
[e]xcept where a higher vote is required for action under any other
provisions of this Declaration or by the [Georgia Condominium] Act, in
which case such higher vote shall be necessary to amend such provision,
this Declaration may be amended by the affirmative vote, written
consent, or any combination of affirmative vote and written consent of
the members of the Association holding two-thirds (2/3) of the total
Association vote.
Additionally, “[n]o amendment shall be effective until certified by the President and
Secretary of the Association and recorded in the Fulton County, Georgia land
16
records.” Suffice it to say, Sadlowski presented no evidence of any such amendment
having been made.
As we have previously explained,
[b]efore we can impose the duty to protect against the criminal acts of
third parties, we must find that the defendant has a duty to control the
security of the premises where the criminal act took place; if the
[defendant] did not have any duty to control the security of the common
elements, it cannot have had any duty to provide the same.24
Here, as made clear by the above-quoted provisions from the condominium
declarations, while the HOA still has a duty to “maintain” the Common Elements of
the condominium complex, such maintenance specifically does not include providing
security.25 We have previously concluded that such clauses are not in conflict with the
Georgia Condominium Act.26 Indeed, a condominium association’s duty to its
24
Miller, 258 Ga. App. at 246 (1) (1).
25
See id. (“Absent conflict with the Act, a condominium association’s duty to
its members does not require it to do things expressly excluded under the terms of the
condominium instruments.”).
26
See id. (“Like other statutes which are in derogation of common law, the
Georgia Condominium Act must be strictly construed and limited to its explicit terms.
In that regard, the Act does not in any fashion speak to providing security from
third-party criminal acts as a part of a condominium’s ‘upkeep,’ meaning
‘maintenance, repair, renovation, restoration, and replacement.’ [When] a statute
17
members under OCGA § 51-3-1 “with regard to the common elements of a
condominium property may be circumscribed by the terms of the condominium
instruments/contract[.]”27
Although Beacon contracted with the HOA to assist in the provision of the
HOA’s maintenance duties, this did not give rise to any contractual duty on Beacon’s
part to provide services on behalf of the HOA that the association had no duty to
provide. Thus, setting aside the question of whether a working key fob would have
prevented the violent attack on Sadlowski, the HOA “had no duty under the express
terms of the condominium instruments to execute such security measures,”28 and
gives a right which did not exist at common law, it must be limited strictly to the
meaning of the language employed, and not extended beyond the plain and explicit
terms of the statute. Here, the Condo Association performed ‘maintenance, repair,
renovation, restoration, and replacement’ . . . as required by the Act; but, pursuant to
an express contractual agreement as reflected in the condominium instruments,
providing ‘maintenance’ did not include providing security measures.” (footnotes &
punctuation omitted)).
27
Id. at 246 (1) (a); see OCGA § 51-3-1 (“Where an owner or occupier of land,
by express or implied invitation, induces or leads others to come upon his premises
for any lawful purpose, he is liable in damages to such persons for injuries caused by
his failure to exercise ordinary care in keeping the premises and approaches safe.”).
28
Miller, 258 Ga. App. at 248 (1) (a).
18
Beacon had no such duty either.29 Instead, the duty to provide for Sadlowski’s
security lay solely with Sadlowski under the explicit terms of the condominium
declarations.30
Once again, Sadlowski cites to no source, whether statutory or contractual,
giving rise to a duty on behalf of Beacon to provide security. Accordingly, because
Beacon had no duty to provide security to Sadlowski, the trial court correctly granted
summary judgment to Beacon.31
29
See Scrocca v. Ashwood Condo Ass’n, Inc., 326 Ga. App. 226, 227-29 (2)
(756 SE2d 308) (2014) (holding that neither HOA nor management company with
which HOA contracted were liable for unit owner’s injuries resulting from a fall on
ice in a walkway when condominium declarations included a disclaimer that placed
responsibility for ice removal in that specific area with the unit owner herself).
30
See id. (holding that neither HOA nor management company with which
HOA contracted were liable for unit owner’s injuries resulting from a fall on ice in
a walkway when condominium declarations included a disclaimer that placed
responsibility for ice removal in that specific area with the unit owner herself); Miller,
258 Ga. App. at 247-48 (1) (a) (holding that HOA did not have a duty to provide
security to unit owner when declarations explicitly provided that “[t]he obligation to
provide security lies solely with each unit owner individually”).
31
See Scrocca, 326 Ga. App. at 230 (“It is axiomatic that an action for
negligence cannot be maintained if the defendant did not owe the plaintiff a legal
duty.” (punctuation omitted)); Miller, 258 Ga. App. at 248 (1) (a) (“If a defendant
owes no legal duty to the plaintiff, there is no cause of action in negligence.”
(punctuation omitted)).
19
3. Because we hold that summary judgment was properly granted, we need not
address Sadlowski’s other enumerations of error, which are that the court erred in
granting summary judgment to Beacon after concluding that Sadlowski had equal or
superior knowledge about the status of his ability to access the condominium through
a parking-lot gate, and that Sadlowski assumed the risk of injury when he fought back
against his attacker.32
For all these reasons, we affirm the trial court’s grant of summary judgment to
Beacon.
Judgment affirmed. Doyle, P. J., and Mercier, J., concur.
32
See, e.g., N4D, LLC v. Passmore, 329 Ga. App. 565, 568 (3) (765 SE2d 717)
(2014) (declining to address appellant’s remaining arguments when grant of summary
judgment was appropriate and affirmed on one of many alternative grounds);
Bullington v. Fayette Cnty. School Dist., 246 Ga. App. 463, 467 (2) (540 SE2d 664)
(2000) (declining to address alternative argument as to the propriety of summary
judgment ruling because “[a] judgment right for any reason will be affirmed”).
20