MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
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.
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).
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.
admits that he did not seek the approval from the association
before establishing the flower bed.
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."
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.
§ 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.
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.
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