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Kennedy Dev. Co. Inc. v. Newton's Crest Homeowners' Assoc.

Res judicata barred the plaintiff's claim as its new theory of recovery was ascertainable in its original complaint and was ruled on in the previous grant of summary judgment to the defendant.

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This litigation appears before us for the second time after an intervening journey to the Georgia Supreme Court. And for the second time, we find that summary judgment was appropriate on the third-party complaint of Kennedy Development “Kennedy” against Newton’s Crest Homeowners’ Association “the NCHA”, and we therefore affirm the judgment of the trial court.

The underlying facts are laid out in detail in Newton’s Crest Homeowners’ Assn. v. Camp, 306 Ga. App. 207 702 SE2d 41 2010. To summarize, downstream landowners brought the main action against Kennedy Development “Kennedy” and others because of stormwater runoff onto their property from the Newton’s Crest subdivision, which was developed by Kennedy. Id. at 209-210. Over a year after suit was filed, and while the litigation was pending, Kennedy by written agreement conveyed all its interest in the subdivision to the NCHA. No evidence was presented that Kennedy notified the NCHA of the pending litigation. See id. at 214-215 2. The “Assignment and Assumption Agreement” contained an indemnification clause for all claims arising from Kennedy’s development of the property, including those that arose prior to the date of the agreement. Id. at 214-215 2 n.5.

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