Green v. Board of Directors of Park Cliff, No. A06A0365.
Decision Date | 25 May 2006 |
Docket Number | No. A06A0365. |
Citation | 631 S.E.2d 769,279 Ga. App. 567 |
Parties | GREEN v. BOARD OF DIRECTORS OF PARK CLIFF UNIT OWNERS ASSOCIATION, INC. |
Court | Georgia Court of Appeals |
Karla Y. Vogel, Decatur, for appellant.
Adam C. Joffe, Lynn M. Leonard, Atlanta, for appellee.
On or about June 9, 2004, appellant and condominium owner Ted Green filed a pro se complaint in magistrate court against defendant Park Cliff Condominium Association, claiming that "Park Cliff . . . failed to maintain the condominium complex in accordance with its bylaws and standards." The complaint sought damages in the amount of $2,520 and attorney fees of $54. On September 13, 2004, the magistrate court entered judgment in favor of defendant and against the plaintiff for failure to prove a claim.1 On the same date, Green filed this pro se action in the Superior Court of Fulton County seeking an injunction against the Board of Directors of Park Cliff Unit Owners Association, Inc. ("Park Cliff"), to maintain and repair common areas of the Park Cliff condominium development as required by its Declaration of Condominium. After Park Cliff moved for summary judgment on grounds of res judicata, Green obtained counsel. During a hearing on the motion, which was not transcribed, Park Cliff allegedly presented the following documents from the previous case: Plaintiff's Statement of Claim and the Order and Judgment in favor of defendant Park Cliff Condominium Association. At the close of the hearing, the trial court allegedly indicated from the bench that res judicata applied to the present action, but that without an affidavit of certification for the magistrate court documents, there was insufficient evidence in the court's record to rule in favor of Park Cliff.2 Subsequently, Park Cliff filed a "Motion for Reconsideration and Motion to Allow Late Filing of Affidavit of Susan I. Barnes, Chief Deputy Clerk of the Magistrate Court of Fulton County." Green objected to the late filing of the affidavit because Park Cliff had not demonstrated excusable neglect. The trial court disagreed, granted Park Cliff's motions, and dismissed Green's complaint with prejudice. On appeal, Green contends that the trial court abused its discretion in permitting the affidavit to be filed and erred in granting summary judgment to Park Cliff. We disagree.
1. Green contends that the trial court abused its discretion in permitting Park Cliff to file Barnes' affidavit because there was no evidence of excusable neglect.3 We find Green's contention unavailing in light of our recent opinion in Cheung Kong Trading v. Warrick-Sims.4
Under OCGA § 9-11-6(d), affidavits in support of a motion must be served at the time the motion is served, unless the trial court exercises its discretion under OCGA § 9-11-6(b) to permit later service. Subsection (b) provides:
When ... an act is required or allowed to be done at or within a specified time, ... the court for cause shown may at any time in its discretion ... upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect.
"In giving such permission, the court is not required to make a written finding of excusable neglect, and, accordingly, a trial court is not required to state its basis for finding excusable neglect."5 Here, the trial court's order reads as follows: "The Court finds excusable neglect and permits the late filing of the Affidavit of ... [the] Chief Deputy Clerk of the Magistrate Court of Fulton County." The fact that Park Cliff's motion did not present any factual evidence to support a claim of excusable neglect did not preclude the trial court from finding excusable neglect. It is possible that Park Cliff raised another basis at the summary judgment hearing; however, a transcript is not included in the appellate record.
As a reviewing court, in the absence of transcripts or evidence of record to the contrary, we must apply a presumption in favor of the regularity of court proceedings. Applying that presumption in this case, we must assume, in the absence of evidence to the contrary, that the trial court found some basis for its finding of excusable neglect.6
Accordingly, based upon this record, it cannot be said that the trial court abused its discretion in permitting the affidavit to be filed.7
2. Green contends that summary judgment was improper because Park Cliff failed to prove that the issues raised in this action are identical to those raised in the prior litigation. We do not agree.
The doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously-adjudicated action. In order for res judicata to bar a subsequent action, it must be established that an identity of parties and subject matter exists between the two actions, and that a court of competent jurisdiction entered an adjudication in the earlier action.8
Green does not dispute that there is identity of parties. However, he claims that "the facts which formed the basis [of the first action] were totally separate and distinct in time and subject matter from the facts surrounding the instant action." Specifically, Green contends — and averred in an affidavit — that the first action pertained to Park Cliff's negligent failure to repair a roof which caused damage to a bathroom ceiling and bedroom wall in Green's unit...
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