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Abdullah v. Winslow at Eagle's Landing Homeowners Association, Inc.

Court of Appeals of Georgia, Fifth Division

February 20, 2019

ABDULLAH
v.
WINSLOW AT EAGLE'S LANDING HOMEOWNERS ASSOCIATION, INC.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          Rickman, Judge.

         Askia K. Abdullah filed suit seeking a declaration that his homeowners' association ("the association") did not have the right to fine him for failing to seek prior approval to establish a flower bed on his property. The association counterclaimed for charges accumulated by Abdullah, including initiation fees, assessments, fines of $100 per week arising from the flower bed issue, and attorney fees. Eventually, the trial court denied Abdullah's request for a declaratory judgment and granted summary judgment in favor of the association. Abudullah appeals, contending that the superior court erred by granting summary judgment and awarding attorney fees. For the reasons shown below, we reverse.

         Summary judgment is warranted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party." (Citations and punctuation omitted.) Smith v. Found, 343 Ga.App. 816, 817 (806 S.E.2d 287) (2017). "The evidence on summary judgment includes the facts alleged in [Abdullah's] verified complaint that are within [his] personal knowledge." Zhong v. PNC Bank, 345 Ga.App. 135, 145 (3) (b) (i), n. 3 (812 S.E.2d 514) (2018).

         So construed the evidence of record shows that in July 2014, Abdullah purchased residential real estate in Winslow at Eagle's Landing and that his ownership and use of the property was governed by the association under a declaration of covenants and restrictions ("the declaration"). Prior to August 1, 2016, Abdullah received a letter from the association concerning the lack of grass on some portion of his property. He responded that the area was not conducive to grass because of an extensive root system, and he therefore built a "flower bed and filled it with soil that would accommodate plant growth." He urged the association to intervene if they saw fit:

There is no other way anything will grow in that area. I urge you to come out and examine the area. And, if you can grow grass in the area I will gladly remove the flower bed. I am also open to any other suggestion you may have.

         Abdullah admits that he did not seek the approval from the association before establishing the flower bed.

         Abdullah did not receive a response to his letter. Instead, in early August 2016, the association began to assess Abdullah $100 per week for failure to obtain prior approval for installation of the flower bed. In December, Abdullah submitted to the association a proper request for approval of the flower bed, and the association approved it on December 30, 2016. Nevertheless, the association thereafter sought to recover the accumulated weekly fines for a violation entitled "Unapproved Home Improvement . . . for unapproved landscaping for flower bed."

         Abdullah then filed this declaratory judgment action, seeking an order declaring that the $100 payments were void as being contrary to the declaration and, therefore, arbitrary and capricious. The association answered and counterclaimed for all unpaid "initiation fees, assessments and other charges" owed by Abdullah as well as attorney fees incurred in collecting the unpaid charges. As stated above, the trial court denied Abdullah's motion for a declaration that the fines were void, and it granted the association's motion for summary judgment in the full amount of its claims and attorney fees authorized by the declaration. In sum, the trial court granted judgment in favor of the association in the following amounts: principal of $2, 570; interest of $30; and attorney fees of $1, 971.45.

         1. As a preliminary matter, the association contends that we do not have jurisdiction for this appeal because Abdullah filed a direct appeal whereas a discretionary application was required given that the superior court awarded the association less than $10, 000.

         OCGA § 5-6-34 (a) provides for appeals from "[a]ll final judgments . . . except as provided in Code Section 5-6-35[, ]" such as OCGA § 5-6-35 (a) (6), which requires an application for appeal in "all actions for damages in which the judgment is $10, 000.00 or less." (Emphasis supplied.) The question presented is whether Abdullah was entitled to a direct appeal given that the trial court dismissed his declaratory judgment in full even though it also awarded the association damages of less than $10, 000.

         The answer is controlled adversely to the association by Brown v. Assocs. Fin. Svcs. Corp., 255 Ga. 457 (339 S.E.2d 590) (1986), and Kelly v. Pierce Roofing Co., 220 Ga.App. 391 (469 S.E.2d 469) (1996). Both cases conclude that where the original action is not one for damages, OCGA § 5-6-35 (a) (6) does not apply. See Brown, 255 Ga. at 457 (OCGA § 5-6-35 (a) (6) does not apply to a judgment where "the action and judgment are for a grant of possession and not an action or a judgment for damages"); Kelly, 220 Ga.App. at 391 (even though amount of trial court's award was less than $10, 000, "an action on a lien is not an action for damages necessitating a discretionary appeal under OCGA § 5-6-35 (a) (6)"); see also Anderson v. Laureano, 342 Ga.App. 888, 888 (805 S.E.2d 636) (2017). Thus, here, where Abdullah's action was for declaratory judgment, not damages, OCGA § 5-6-35 (a) (6) does not apply, and Abdullah had a right to a direct appeal from a final judgment.

         2. Abdullah contends the trial court erred by granting summary judgment in favor of the association because the declaration of covenants did not authorize fines under the circumstances. A declaration of covenants is a contract and we therefore apply the normal rules of contract construction de novo. Homelife on Glynco, LLC v. Gateway Ctr. Commercial Assn., 348 Ga.App. 97(1) (819 S.E.2d 723) (2018). Under those rules,

The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties. To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. When the language employed by the parties in their contract is plain, unambiguous, and capable of only one ...

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