MARKS et al.
FLOWERS CROSSING COMMUNITY ASSOCIATION, INC
This Opinion is Uncorrected and subject to revision by the court.
MCMILLIAN, Judge. Barnes, P. J., and Miller, J., concur.
This appeal arises out of a protracted dispute and ensuing litigation between homeowners' association Flowers Crossing Community Association, Inc. (the " Association" ) and homeowners Elizabeth Marks and H. Edward Marks (singularly referred to as " Edward" and " Elizabeth" and collectively referred to as the " Marks" ) in which the Association sought injunctive relief and damages for alleged violations of certain restrictive covenants, recovery of past due homeowners' Association assessments, and attorney fees. The jury subsequently returned a verdict in favor of the Association, and the trial court granted its request for injunctive relief. The Marks filed a motion for new trial, which the trial court denied, and then the present appeal in which they challenge, inter alia, the damages award and the imposition of an injunction. We agree with the Marks that they are entitled to a new trial and, accordingly, vacate the judgment and remand for further proceedings consistent with this opinion.
The record shows that the Marks purchased their home in the Flowers Crossing community in 1996, and that they were aware that they were subject to the restrictive covenants and conditions contained in the Declaration of Covenants, Conditions and Restrictions for Flowers Crossing (" Declaration of Covenants" ) at the time they purchased their home. In 2002, the Marks erected a fence enclosing a portion of their backyard without first obtaining approval of the Association's Board of Directors (" Board" ), and in 2003 the Association sent the Marks a letter requesting that they tear down the fence. The Marks refused to comply with the Board's request, and in May 2003, Edward Marks appeared before the Board to address the issue of the fence. The Board did not approve the fence as constructed, and the Marks quit paying association dues around that time.
In November 2005, the Marks installed a new garage door. In January 2006, the Marks received a request to appear at the February meeting of the Board, at which time the Board notified the Marks that they had failed to obtain proper approval before they replaced the garage door and that the door needed to be painted to match the trim on the house. The Marks disputed that the architectural standards or any other provision of the Declaration of Covenants required their garage door to exactly match the trim on their house and refused to paint the door, which also remained unchanged and unapproved at the time of trial. In April 2006, the Board, acting through its manager Dean Donald, sent the Marks a letter notifying them they were being assessed fines of $25 per day beginning April 11, 2006 based on their failure to submit an architectural change request form, although the letter did not specify the change for which the form was needed. However, Edward Marks testified that these fines were in addition to the fines which were already being imposed for the fence violation, and Dean Donald testified that it was " logical" that the letter referred to the garage door.
In 2009, the Association filed a complaint against the Marks in the State Court of Gwinnett County seeking to recover past due assessments (" 2009 action" ). While this action was pending, on March 19, 2010, the Association sent the Marks written notification that they had violated the restrictive covenants contained in the Declarations by: (1) constructing a fence on the property without the proper prior approval and which was not in keeping with the existing standards of the community; (2) installing a new garage door without the proper prior approval and which was, in essence, the wrong color; (3) storing debris, trash cans and other junk on the exterior of the property; (4) failing to maintain the property in a neat and attractive condition including allowing the paint on the exterior of the house to wear; (5) haphazardly maintaining window screens on some, but not all, windows; (6) failing to properly maintain the lawn and prune shrubs and allowing vines to grow around the front of the house; and (7) failing to pressure wash exterior stairs and walkways. The Marks were given 30 days to correct the alleged violations and placed on notice that failure to remedy the violations would result in the imposition of fines of $25 per day per violation.
Edward appeared before the Board to address the violations on April 12, 2010, and the next day the Board notified the Marks that it would begin imposing fines for the violations. On May 7, 2010, the Board sent the Marks another letter, advising them that the failure to correct the violations within 30 days of the March 19, 2010 letter, or by April 19, 2010, had resulted in the imposition of fines in the amounts previously indicated and could result in the initiation of legal action.
Around the same time, the Association filed a motion to amend the 2009 complaint and to transfer the case to superior court. The motion was granted and the case was transferred to Gwinnett Superior Court in May 2010. After the transfer, the Association struck its original complaint in its entirety and filed an amended and recast complaint reasserting its claim for past due assessments and adding claims for injunctive relief and damages for the alleged covenant violations (" 2010 action" ).
The Marks answered and filed a counterclaim, asserting, among several other claims, that the Association's actions toward them were arbitrary and capricious. Apparently, at some point the parties pursued mediation, and in February 2011 the Association voluntarily dismissed its complaint without prejudice;  in May 2011, the Marks signed a general release in settlement of all their claims against the Association, which may have arisen before May 11, 2011.
In August 2011, the Association filed another complaint, which was essentially the same as the 2010 complaint, with the exception that the 2011 complaint did not seek damages or injunctive relief based on the installation of the fence (" 2011 action" ). The 2011 complaint initially was not served on the Marks, but in November 2011, the Marks acknowledged service. On December 19, 2011, the Marks filed their answer and another counterclaim, reasserting their contention that the Association had acted, and continued to act, in an arbitrary and capricious manner and that they were entitled to attorney fees and expenses of litigation under OCGA § 13-6-11.
The Association filed separate motions for summary judgment on its complaint and the Marks' counterclaim, and the Marks filed a motion for partial summary judgment on some but not all of the covenant violations, and on their counterclaim. In three separate orders, the trial court (1) granted the Association's motion for summary judgment on the Marks' counterclaim; (2) denied the Association's motion with respect to its claims against the Marks; and (3) denied the Marks' motion for partial summary judgment. The jury subsequently returned a verdict in favor of the Association and awarded $31,325 in damages for fines based on the covenant violations, $5123.75 for past due assessments, and $41,117.58 in attorney fees. The trial court entered judgment on the verdict and issued a permanent injunction requiring the Marks to remedy all but one of the alleged covenant breaches. Following the denial of their motion for new trial, the Marks filed the present appeal in which they raise multiple evidentiary and legal challenges to the jury's verdict and the trial court's grant of injunctive relief; additionally, the Marks assert the trial court erred by granting summary judgment to the Association on their counterclaim.
1. The Marks first challenge the grant of injunctive relief and the imposition of fines for the alleged covenant violations, arguing those claims were either ...