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McCarter v. La Hacienda Condominium Assoc. Inc.

Affidavit in opposition to motion for summary judgment that claimed that plaintiff overpaid monthly condominium association fees did not conform to the requirements of O.C.G.A. § 9-11-56 e and violated the best evidence and hearsay rules since the affidavits neither identified the attached summary and photocopies of the faces of the checks payable to the association nor accounted for the absence of the original checks.

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Jeanette McCarter is the owner of a condominium in Gwinnett County and is a member of La Hacienda Condominium Association, Inc. She fell behind in paying the $252.50 monthly Association fee as well as an additional monthly $121.44 special assessment, which totaled $4,183, and the Association obtained a consent judgment against her for $1,828.73, which was the then owed fees and special assessment. On December 21, 1998, the Association brought a wage garnishment against her for such sums, but McCarter traversed the garnishment. which was denied on February 2, 1999. McCarter sued the Association in this action for slander and for recoupment of overpayments; the Association countersued for further delinquent fees, interest, expenses of litigation, and attorney fees. The Association moved for summary judgment on both its counterclaim and McCarter’s claims, which the trial court granted. The Association contends that it was entitled to summary judgment, because there had been two judicial determinations of the amount McCarter owed. However, the two judicial determinations of such sums owed could only have res judicata effect as to the debt incurred prior to January 30, 1998 when the consent order along with any sums which became due prior to the August 2, 1998 entry of a consent judgment. Since additional fees and assessments continued to accrue to the present, then an issue of the allocation of payments between prior debts and current debts must be made, which prevents res judicata from totally precluding consideration of the debts. Finding no error, we affirm without considering res judicata.

1. McCarter contends that the trial court erred in granting the Association’s motion for summary judgment. We do not agree.

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