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Elekima v. Abbey Road Condominium Ass'n Inc.

The plaintiff's constructive eviction claim was a permissive, not compulsory, counterclaim, and the trial court erred in granting summary judgment to the defendant on the grounds that the plaintiff should have brought his claim in a prior action.

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Precious Elekima appeals from the grant of summary judgment to Abbey Road Condominium Association, Inc. “the Association”, in his suit against it for damages arising from an alleged constructive eviction. Elekima contends that the trial court erred by ruling that his suit was barred because his claims should have been asserted as compulsory counterclaims in a prior successful action against him by the Association. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9 11 56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.1

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