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Marino v. Clary Lakes Homeowners Ass'n, Inc.

Court of Appeals of Georgia

March 16, 2015

MARINO et al.
v.
CLARY LAKES HOMEOWNERS ASSOCIATION, INC

Restrictive covenant. Cobb Superior Court. Before Judge Grubbs.

Julie A. Liberman, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Cynthia C. Hodge, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 290

Dillard, Judge.

Clary Lakes Homeowners Association, Inc. (the " Association" ) sued homeowners Joseph and Patricia Marino, seeking damages and enforcement of a restrictive covenant that required garages to be used for parking vehicles and not for storage. The Marinos filed an answer and counterclaim, contending that the restrictive covenant was invalid. The trial court granted partial summary judgment to the Association, but in Marino v. Clary Lakes Homeowners Association, Inc.[1] ( Marino I ), we ruled that the restrictive covenant was unenforceable against the Marinos. Consequently, we reversed the trial court's grant of summary judgment to the Association on its claims predicated on the breach of the restrictive covenant and remanded the case with direction for the trial court to enter summary judgment in favor of the Marinos as to those claims.[2] In addition, we reversed the trial court's grant of summary judgment to the Association on its claim for attorney fees under a " prevailing party" provision in the covenants, but we affirmed the denial of summary judgment to the Marinos on this issue because an award of such fees was potentially dependent upon the resolution of the Association's claim for breach of a settlement agreement, which remained pending.[3]

Following remand, the Marinos filed a motion to dismiss the Association's breach-of-settlement-agreement claim, which the trial court denied. Nevertheless, the Association ultimately dismissed this claim and then moved to dismiss the Marinos' attorney fees claim. Finding that neither party prevailed in the litigation, the trial court granted the Association's motion. On appeal, the Marinos contend that the trial court erred in (1) dismissing their claim for attorney fees under the " prevailing party" provision, (2) denying their motion to dismiss the claim for breach of the settlement agreement, (3) denying their motion for attorney fees pursuant to OCGA § 9-15-14 (b), (4) dismissing their counterclaims, and (5) failing to enter final

Page 291

judgment in their favor. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

[331 Ga.App. 205] A detailed recitation of the background facts can be found in Marino I.[4] Nevertheless, by way of summary, the undisputed record shows that in 2003, a majority of the homeowners in the Clary Lakes subdivision and the Association approved an Amended and Restated Declaration of Protective Covenants for Clary Lakes (the " Amended Declaration" ) and Amended and Restated Bylaws of Clary Lakes Homeowners Association, Inc. (the " Bylaws" ).[5] Importantly, the Amended Declaration included a provision stating that the Association and the Clary Lakes subdivision were submitting to application of the Property Owners' Association Act (" POA Act" ) (OCGA § 44-3-220 et seq.).[6] And under the Amended Declaration, use of garages was governed by Section 11 (i), which provided:

Garage Parking.

All vehicles owned or used on a regular basis by Owners or Occupants shall be parked in garages to the extent that garage space is available and vehicles fit in the garage. Garages shall not be used for storage on a regular basis so that they become unavailable for parking cars therein. The Covenant Committee shall have the power to grant a variance to any Owner or Occupant who demonstrates special circumstances why he cannot comply with this requirement. Application for this variance must be made in writing to the Covenant Committee. The variance to the Owner or Occupant must be in writing and specify the term of the required variance.[7]

The Marinos purchased their home in the Clary Lakes subdivision nearly ten years prior to the approval of the Amended Declaration, and they did not vote in favor of the declaration or give their written consent to it.[8] And because their home did not have a basement, the Marinos used their garage for storage and parked their vehicles on their driveway, which had been permitted prior to the 2003 approval of the Amended Declaration.[9] Consequently, in January 2009, the Association informed the Marinos that they were in violation of the Garage Use Covenant.[10] Initially, the Association attempted to resolve the dispute by issuing a temporary variance to [331 Ga.App. 206] allow the Marinos time to comply with the covenant.[11] But when the Marinos requested a permanent variance, the Association refused and, pursuant to the Amended Declaration, began to levy daily fines, which the Marinos refused to pay.[12]

In 2011, the Association sued the Marinos for damages, injunctive relief, and attorney fees, alleging that they were in violation of the Garage Use Covenant, breached a settlement agreement, and owed fines.[13] The Marinos filed an answer and counterclaims, arguing, inter alia, that the Garage Use Covenant was unenforceable against them because they had not consented to it pursuant to OCGA § 44-5-60 (d) (4)[14] and because it had not been approved by at ...


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