Adewumi v. Amelia grove/ashland Park Homeowners Association, Inc. , 337 Ga. App. 275 ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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
June 2, 2016
In the Court of Appeals of Georgia
A16A0138. ADEWUMI v. AMELIA GROVE/ASHLAND PARK
HOMEOWNERS ASSOCIATION, INC.
BARNES, Presiding Judge.
Omotola Adewumi appeals pro se from the order of the trial court granting
summary judgment to Amelia Grove/Ashland Park Homeowners Association (“the
Association”) in its complaint for “judicial foreclosure of lien and damages” for
unpaid property assessments. Adewumi contends that summary judgment was not
warranted because genuine issues of material fact exist as to whether she received
proper notice pursuant to OCGA § 44-3-109 (c) and OCGA § 44-3-232 (c), and that
the trial court improperly considered Adewumi’s failure to respond to the
Association’s request for admissions in its grant of summary judgment. For the
reasons that follow, 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). A de novo standard of review applies to an
appeal from a grant of summary judgment, and we view the evidence,
and all reasonable conclusions and inferences drawn from it, in the light
most favorable to the nonmovant.
Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
So viewed, the record demonstrates that on August 4, 2014, the Association
filed its complaint for judicial foreclosure of lien and damages in which it alleged that
Adewumi owed $686.00 in unpaid assessments and accrued late fees for property
located in the Amelia Grove/Ashland Park Development, and $1,350.00 in attorney
fees and costs incurred in seeking to recover the unpaid assessments. The Association
also sought to foreclose on its statutory lien pursuant to OCGA § 44-3-232 (a).
Adewumi answered and asserted multiple affirmative defenses, including failure to
comply with unspecified statutory requirements.
On December 8, 2014, the Association filed its first request for admissions,
interrogatories, and request for production of documents. Adewumi did not respond
to the discovery requests, and on April 6, 2015, the Association filed a motion for
summary judgment, which, following a hearing, the trial court granted, entering
judgment in favor of the Association for $3,112.80, and ordering that the Association
could foreclose its statutory lien pursuant to OCGA § 44-3-232. Adewumi appeals
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from that order. The Association did not file an appellate brief, and the failure to do
so serves as an admission of Adewumi’s statement of facts, as long as those facts are
supported by the record. See Green v. Waddleton, 288 Ga. App. 369, n. 1 (654 SE2d
204) (2007).
1. Our first consideration is whether we have jurisdiction over this appeal.
Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306
SE2d 22) (1983). “Although the grant of a motion for summary judgment is in general
directly appealable, where the amount of the judgment is $10,000 or less, an
application for discretionary appeal is required.” (Citation and punctuation omitted.)
Ca-Shar, Inc. v. McKesson Corp., 204 Ga. App. 865 (420 SE2d 810) (1992); OCGA
§ 5-6-35 (a) (6). However, in determining whether an appeal falls within the ambit
of the discretionary appeals procedure, the final judgment is considered in its entirety
and not merely in its various parts. See Alexander v. Steining, 197 Ga. App. 328 (1)
(398 SE2d 390) (1990). In this case, the trial court permitted the Association to
foreclose on a statutory lien, which we have held renders this case directly appealable.
See Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 391-392 (469 SE2d 469) (1996)
(even though damages awarded were less than $10,000, final judgment in an action
that arose as a complaint on a lien against real property is directly appealable.)
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2. Where a defendant moving for summary judgment demonstrates the absence
of a genuine issue of material fact and that the undisputed evidence warrants
judgment as a matter of law, “the nonmoving party cannot rest on its pleadings, but
rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp., Inc.
v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991); OCGA § 9-11-56(e).
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. . . . [T]he 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.
(Citation and punctuation omitted.) Robinson v. Global Resources, Inc., 300 Ga. App.
139, 140 (684 SE2d 104) (2009).
Here, Adewumi’s responses to the Associations requests for admission were
due on or before January 8, 2015. Adewumi did not respond, thus admitting the
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requests as a matter of law. See OCGA § 9-11-36 (a) (2) (the matter addressed in a
request “is admitted unless, within 30 days after service of the request or within such
shorter or longer time as the court may allow, the party to whom the request is
directed serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or by his attorney.”) OCGA § 9-11-36 (b)
permits a party to request withdrawal of an admission “when [1] the presentation of
the merits of the action will be subserved thereby and [2] the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will prejudice him
in maintaining his action or defense on the merits.”
Adewumi did not request that the admissions be withdrawn, nor respond to the
Association’s motion for summary judgment. Because Adewumi “did not avail
[herself] of any of the variety of responses available under OCGA § 9-11-36 and
chose not to seek the liberal remedies afforded to parties under the statute to avoid the
consequences of a failure to respond, . . . the subject matter of [the Association’s]
requests for admission stood admitted.” G. H. Bass & Co. v. Fulton County Bd. of Tax
Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997). And “[w]here a party fail[s]
to answer a request for admissions within the requisite time and the admissions
removed all issues of fact, the other party [is] entitled to a grant of its motion for
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summary judgment.” (Citations and punctuation omitted.) Atlanta Cas. Co. v.
Goodwin, 205 Ga. App. 421, 422 (422 SE2d 76) (1992).
Thus, Adewumi admitted that she owed the assessments to the Association and
was indebted to it in the amount alleged in the complaint, removing any genuine issue
of material fact from the case as to her indebtedness.
3. Adewumi contends that genuine issues of material fact exist as to whether
the Association was entitled to foreclose on its statutory lien because notice was only
sent to the address of the property at issue and not to another address designated in
the record. We do not agree.
OCGA § 44-3-232 (c) provides that
[n]ot less than 30 days after notice is sent by certified mail or statutory
overnight delivery, return receipt requested, to the lot owner both at the
address of the lot and at any other address or addresses which the lot
owner may have designated to the association in writing, the lien may
be foreclosed by the association by an action, judgment, and court order
for foreclosure in the same manner as other liens for the improvement
of real property, subject to superior liens or encumbrances, but any such
court order for judicial foreclosure shall not affect the rights of holders
of superior liens or encumbrances to exercise any rights or powers
afforded to them under their security instruments. The notice provided
for in this subsection shall specify the amount of the assessments then
due and payable together with authorized late charges and the rate of
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interest accruing thereon. No foreclosure action against a lien arising out
of this subsection shall be permitted unless the amount of the lien is at
least $2,000.00.
Adewumi does not contend that she was not provided with notice, but that the
statute required that the notice be sent to her designated address provided to the
Association. At the hearing, the Association argued that notice was sent to the address
of record, and there was no evidence that Adewumi had provided the Association
with another designated address in writing. However, the record included multiple
notices from the Association that were sent to Adewumi at a California address, and
the record does not reflect that notice was mailed to that address.
It is fundamental where notice to property owners is required by
statute prior to action affecting their vested property rights, due process
under both the 1983 Constitution of Georgia and the United States
Constitution mandates adequate notice that is reasonably likely to
actually provide notice. An elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to
present their objections. The notice must be of such nature as reasonably
to convey the required information, and it must afford a reasonable time
for those interested to make their appearance. Constitutional due process
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of law includes notice and hearing as a matter of right where one’s
property interests are involved.
(Citations and punctuation omitted.) Mitsubishi Motors Credit of America v.
Robinson & Stephens, Inc., 263 Ga. App. 168, 170 (1) (587 SE2d 146) (2003).
Although it appears that the notice of the statutory lien was only sent to the
property’s address, it is undisputed that Adewumi timely responded to the action, and
appeared at the hearing on the motion for summary judgment. Thus, notwithstanding
her contention that the Association failed to comply with the notice requirements
pursuant to OCGA § 44-3-232 (c), the fundamental due process requirements of
“notice” and “hearing” were satisfied. See generally Boatright v. Glynn County
School Dist., 315 Ga. App. 468, 470 (1) (726 SE2d 591) (2012) (due process requires
that the state must give notice and an opportunity to be heard to a person deprived of
a property interest).
Based on the foregoing, the trial court did not err in granting summary
judgment to the Association.
Appeal affirmed Boggs and Rickman, JJ., concur.
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