One Buckhead Loop Condominium Association, Inc. the “Association” sued Stephen E. Pew as Trustee of the GST Exemption Trust of Gladys W. Pew, Settlor collectively, “Pew”, seeking judicial foreclosure of its lien against Pew’s condominium unit the “Unit” and for damages arising under the Georgia Condominium Act, OCGA § 44-3-70, et seq. the “Act”, and the Association’s governing documents the “Declaration”. Pew removed the lawsuit to federal court, which court remanded the case to the trial court for lack of subject matter jurisdiction. The trial court thereafter granted the Association’s motion for summary judgment, awarding it assessments of $93,122.72 including assessed attorney fees of $78,132. 96,1 interest of $8,059.95, court costs of $82.50, and attorney fees of $10,620.14 incurred in litigation against the occupant of the Unit. On appeal, Pew contends that summary judgment in favor of the Association was error because the trial court i awarded damages in excess of those originally pled and authorized the recovery of amounts barred by judicial estoppel following remand from federal court, ii calculated its awards improperly, and iii abused its discretion in denying his motion to reopen discovery. Discerning no error, 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. Citation omitted. Matjoulis v. Integon Gen. Ins. Corp ., 226 Ga. App. 459 1 486 SE2d 684 1997. So viewed, the record shows that the instant lawsuit, filed on June 26, 2008, is the third such suit filed by the Association against Pew to collect unpaid, assessments, late charges, interest, court costs and attorney’s fees incurred in connection with his Unit from February 2008 forward as well as utilities consumed by his Unit which had not been paid since August 2007. The earlier lawsuits, one filed in 2006 the “2006 case” and the other in 2007 the “2007 case” were dismissed upon Pew’s payment in full of amounts owing the Association at the end of each year. On September 26, 2008, Pew answered the instant lawsuit and counterclaimed, raising claims and defenses, including a demand for a set off for alleged overpayments in connection with the 2007 case. Nye Lavalle, acting as Pew’s agent, verified Pew’s answer and counterclaims. Lavalle, who is Pew’s nephew, occupied the Unit and served as Pew’s ” ‘contact person’ with the Association’s employees.” In a subsequent amended answer, Pew sought an accounting, claiming “ the Association has failed to credit or has improperly credited sums paid on behalf of the Trust Unit.”
On November 7, 2008, Pew filed a notice of removal of the instant case to the United States District Court for the Northern District of Georgia. Upon her review, the federal magistrate judge recommended that the case be “summarily REMANDED” to the trial court for lack of subject matter jurisdiction. On the Association’s motion, without objection, the district court judge adopted the magistrate judge’s recommendation, and, on January 15, 2009, remanded the case to the trial court.
