                                SECOND DIVISION
                                  BARNES, P. J.,
                              RICKMAN and SELF, 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


                                                                       March 1, 2017


In the Court of Appeals of Georgia
 A16A1931. CANADY v. CUMBERLAND HARBOUR
     PROPERTY OWNERS ASSOCIATION, INC.

       BARNES, Presiding Judge.

       Edward R. Canady, d/b/a EC2 (hereinafter “Canady”), appeals from the orders

of the trial court granting Cumberland Harbour Property Owners Association, Inc.,

(“the Association”) summary judgment on its claim for unpaid assessments, and

denying his motion for reconsideration. Upon our review, we affirm.

       The record reflects that Canady purchased eight lots at tax sales, and the

Association sued Canady to recover unpaid assessments on the lots. Canady

purchased the lots at tax sales on February 1, 2011, September 6, 2011, and April 3,

2012, and the Association sought an award of assessments for each lot from the time

of the tax sales until December 31, 2015. On September 14, 2015, the trial court

entered an order granting summary judgment to the Association in which it found

Canady “holder of legal title to the properties . . . [and] liable to [the Association] for
dues and assessments as a matter of law.” The order directed the Association to

prepare a proposed judgment and submit it to Canady, “who shall have ten days from

the date of service of the proposed judgment to file objections thereto.”

      On October 13, 2015, the Association filed its proposed judgment for

$66,362.00, including $46,383.10 for regular assessments unpaid from the time of the

tax sales through December 31, 2015 with supporting affidavits. Canady did not

respond to the filing by objection or otherwise within ten days as directed by the trial

court. Instead, on December 29, 2015, a new attorney filed a notice of appearance as

counsel of record for Canady and requested an evidentiary hearing on all issues

regarding damages. The trial court denied the motion, holding that “[t]here is no

‘damages hearing’ or contested proceeding when liquidated damages are involved,”

and that the proposed order was to “provide counsel for [Canady] . . . an opportunity

to comment solely on the amount claimed to be due . . . [and] not re-argue the merits.”

The trial court found that the Association was entitled to recover all sums due from

the tax sales until September15, 2015, the day summary judgment was granted, and

directed the Association to submit a proposed judgment so reflecting.

      Thereafter, Canady filed a “Motion to Reconsider Summary Judgment, to

Determine the Damages Which Are Owed and/or to Change the Law.” In the motion,

                                           2
Canady requested that the trial court reconsider his liability for fees and assessments

between the date of his purchase of the tax deeds and August 6, 2014, the date on

which he had properly barred the Association’s right of redemption. See OCGA § 48-

4-45 (a) (1) (C).1 He maintained that since he could not have recovered homeowners

association dues and assessments paid by him from the owner of the property if the

right of redemption had been exercised, he should not be personally liable for those

charges that accrued between the time he purchased the tax deed until the date when

the right of redemption had been extinguished.

      The trial court denied the motion for reconsideration, holding, among other

things, that Canady’s argument was speculative and therefore not justiciable because

Canady

      is not being called upon by [the Association] to pay homeowners[]
      association dues and assessments which he might not recover from the
      record owner of the property if the right of redemption was exercised.
      He is being asked to pay lawfully imposed dues and assessments which
      remain unpaid with respect to property he acquired by a tax deed which


      1
        OCGA § 48-4-45 provides, in relevant part that “[a]fter 12 months from the
date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may
terminate, foreclose, divest, and forever bar the right to redeem the property from the
sale by causing a notice or notices of the foreclosure,” to be provided to, among
others, persons having a lien upon the property. OCGA § 48-4-45 (a) (1) (C).

                                          3
      has ripened into fee simple title. This court cannot address the
      hypothetical question of whether Defendant’s rights were violated by a
      statute and case law that could have deprived him of the ability to
      recover the cost of association obligations in the event the owner of the
      property has redeemed it. (Emphasis supplied)


Canady also filed a motion to reconsider that order in which he disputed the trial

court’s ruling as to absence of a justiciable controversy, which the trial court also

denied. This appeal ensued.

      1. Canady first contends that the trial court erred in holding him liable for the

homeowners’ assessments that came due between the time he purchased the

properties at the tax sale and the date he barred the Association’s rights of

redemption. The assessments that were due after Canady bought the tax deeds

constituted a lien on the property under OCGA § 44-3-232, and as a lienholder, the

Association had a right of redemption that became barred, and its lien became

extinguished, once Canady gave proper notice pursuant to OCGA § 48-4-45. Canady

contends that because the liens were extinguished, he should not be liable for the debt

underlying the now-extinguished liens.

      We first note that in his notice of appeal, Canady specifically excluded from

the record the Association’s partial motion for summary judgment on liability and any

                                          4
pleadings associated with the motion, including Canady’s response.2 In its order

granting the Association’s motion for summary judgment, the trial court found that

Canady “[a]s current holder of legal title to the properties . . . is liable to [the

Association] for dues and assessments as a matter of law.” And, in denying Canady’s

motion for reconsideration and request for a hearing, the trial court held that since the

parties “have adequately addressed the issues of law presented by this case in their

briefs, the Court determined that no hearing is necessary.”

      “On appeal [of the grant of a motion for summary judgment,] this Court is

required to conduct a de novo review which, by definition, is impossible if the

appellant omits the very evidence at the heart of our inquiry.” Griffin v. Travelers Ins.

Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998). “[T]he grant of summary

judgment . . . requires that each party on motion for summary judgment present their

case in full.” (Citations omitted; emphasis supplied.) Sands v. Lamar Properties, 159

Ga. App. 718, 720 (285 SE2d 24) (1981). And,



      2
        Other documents specifically excluded from the record on appeal include the
writ of fieri facias, a letter from the trial judge dated September 10, 2015, Canady’s
motion for summary judgment, and the Association’s consolidated response to
Canady’s motion for summary judgment and reply to Canady’s response to the
Association’s motion for summary judgment.

                                           5
      [i]n considering the grant of summary judgment, we and the trial court
      must look at the entire record . . . and where the proof necessary for
      determination of the issues on appeal is omitted from the record, an
      appellate court must assume that the judgment below was correct and
      affirm. . . . Such omissions from the appellate record from matters on
      summary judgment generally prove fatal to appellate review since it
      must be assumed by a reviewing court that the trial court’s grant of
      summary judgment is properly supported by the trial court record and
      since appellant has the burden of showing error affirmatively by the
      record on appeal.


(Citations and punctuation omitted.) Redford v. Collier Heights Apartments, 298 Ga.

App. 116, 117 (679 SE2d 120) (2009).



      Canady attempts to solely rely on the arguments maintained in his motions for

reconsideration,3 and to couch his appeal as only from the orders denying his two

motions for reconsideration. However, Canady sought reconsideration from the grant

of the Association’s motion for summary judgment, which the trial court had granted

after reviewing the motion and other relevant portion of the record, including the

parties’ briefs– essentially the materials Canady purposefully excluded from the


      3
       He argued in his motion for reconsideration that his former counsel’s
arguments were “frivolously” and “incorrectly presented.”

                                        6
appellate record. When “the proof necessary for determination of the issues on appeal

is omitted from the record, an appellate court must assume that the judgment below

was correct and affirm.” (Punctuation and footnote omitted.) Tanks v. The Greens

Owners Assn., 281 Ga. App. 277, 277 (635 SE2d 872) (2006); see Kappelmeier v.

Prudential Ins. Co. of Am., 306 Ga. App. 58, 58 (1) (701 SE2d 488) (2010).

       Given that Canady has omitted material evidence from the record on appeal,

we affirm the trial court’s holding that Canady was liable for the assessments that

came due between the time he purchased the properties at the tax sale and the date he

barred all rights of redemption.

       Moreover, contrary to Canady’s contention that he was not liable for

assessments during the period of time that the Association had a lien on the

properties, per this Court’s holding in Croft v. Plantation Property Owners Assn., 276

Ga. App. 311 (623 SE2d 531) (2005), Canady “acquire[d] an interest in the property

even during the time within which it might be redeemed, which is sufficient to render

him liable for taxes accruing upon the property [and] . . . this interest is also sufficient

to render [Canady] liable for homeowners association assessments.” Id. at 314 (1).

With that being so,



                                             7
      [a] contrary holding would result in a situation in which a tax deed
      purchaser could, by inaction, keep the redemption period alive
      indefinitely, reap the benefit of property value increases, and avoid the
      obligation to pay maintenance expenses which increase the value of the
      property. It would be inequitable to allow a tax deed holder to obtain the
      benefit of restrictive covenants that require the homeowners association
      to maintain the surrounding amenities such as roads and common areas,
      all of which increase the value of the property purchased at the sale,
      without having to pay a proportional share of the cost of these benefits
      for an indefinite period of time.


(Punctuation and footnote omitted.) Id. at 314 (1).

      It makes no difference that, as Canady maintains, here, unlike Croft, he actually

barred the Association’s right of redemption.4 His defeasible title acquired upon

purchase of the properties at the tax sale was “sufficient to trigger automatic

membership in the Association,” and render him liable for the assessments even

during the time in which the property might be redeemed. Croft, 276 Ga. App. at 313

(1). Nor are we persuaded by Canady’s assertion that Croft was incorrectly decided


      4
        Pursuant to OCGA § 48-4-40, title in land sold at a tax sale can be restored
to the owner at the time of the sale, referred to as the “defendant in fi. fa.,” through
the payment of the statutory amount of redemption (a) at any time within 12 months
from the date of the tax sale, and (b) at any time after the tax sale until the right to
redeem is foreclosed by the tax deed purchaser giving of the notice prescribed by
OCGA § 48-4-45.

                                           8
because it prevents investors from recouping their investments or making a profit

because homeowners association assessments are not included in the redemption

price. Whether to include such assessments in the redemption price is a policy matter

best left to the legislature. Indeed, the General Assembly recently amended OCGA

§ 48-4-42 to add the amount paid to a homeowners association to the redemption

price for any sale made after July 1, 2016. See OCGA § 48-4-42 (c) (3); Ga. L. 2016,

p. 793, § 2/HB 51.

       Accordingly, contrary to Canady’s assertion, a tax sale purchaser of property

is liable per Croft and OCGA § 48-4-42 for the payment of homeowners assessments

that accrued on the property after the tax sale during the redemption period.

       2. The trial court found in its motion to reconsider the grant of summary

judgment to the Association that Canady had not suffered a concrete injury because

the properties he purchased at the tax sales were not redeemed, and that his argument

therefore was hypothetical and not justiciable. The issue of the presence of a

justiciable controversy “is a jurisdictional one, inasmuch as no court — trial or

appellate — has jurisdiction of the subject matter in a case that presents no justiciable

controversy. . . . And this Court has an obligation to inquire into its jurisdiction in any

case in which there may be a doubt about the existence of such jurisdiction.” Fulton

                                            9
County v. City of Atlanta, 299 Ga. 676, 676, n.2 (791 SE2d 821) (2016 ). “A

controversy is justiciable when it is definite and concrete, rather than being

hypothetical, abstract, academic, or moot.” Mullin v. Roy, 287 Ga. 810, 812 (3) (700

SE2d 370) (2010). In this case, the Association was awarded homeowners association

assessments from the date of the tax sales until the date the summary judgment was

entered. Canady’s contention was that the assessments should not have been included

in the damages award. Clearly, the issue was justiciable.

      However, the trial court’s order granting summary judgment to the Association

was correct as demonstrated in Division 1, and a judgment right for any reason must

be affirmed. See Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, 319 Ga.

App. 94, 99-100 (1) (b) (735 SE2d 166) (2012) (“[A] grant of summary judgment

must be affirmed if right for any reason, whether stated or unstated. It is the grant

itself that is to be reviewed for error, and not the analysis employed.”) (punctuation

omitted).

      Judgment affirmed. Rickman and Self, JJ., concur.




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