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Riverwood Homeowners Association, Inc. v. Jones

Court of Appeals of Georgia, Fourth Division

September 4, 2019

RIVERWOOD HOMEOWNERS ASSOCIATION, INC.
v.
JONES.

Page 869

          Fred D. Bentley Jr., Jamie Steven Wingler, Marietta, for Appellant.

         Mason Bradley Rountree, Dallas, for Appellee.

          OPINION

         Coomer, Judge.

         Pursuant to our grant of a discretionary appeal, Riverwood Homeowners Association, Inc. (the "Association") appeals the trial court’s order denying its request for attorney fees under the terms of a declaration, and reversing a previous award of attorney fees

Page 870

under OCGA § 13-6-11. For the reasons that follow, we affirm.

          On November 6, 2000, Riverwood Development, Inc. (the "Developer") filed a Declaration of Covenants, Conditions, Restrictions and Easements ("the Declaration"), which provided that the Association had been established for the purpose of exercising certain functions, including "administering and enforcing the covenants and restrictions ...." The Declaration also created the Architectural Control Committee, ("ARC") which referred to

[the Developer] or such other individuals or entities as Developer may appoint, until all lots in Riverwood shall have been fully developed and permanent improvements constructed thereon and sold to permanent residents; at which time such terms shall mean and refer to those persons selected annually by the owners in compliance with the bylaws of the Association to serve as members of said committee.

          As relevant to this appeal, the Declaration provides that:

If any Structure shall be erected, placed, maintained or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the Architectural Control Committee pursuant to the provisions of this Article, such erection, placement, maintenance or alteration shall be deemed to have been undertaken in violation of this Article and without the approval required herein.

          The term Structure includes "any thing or object, the placement of which upon any Lot may affect the appearance of such Lot ...." The Declaration further requires that: "Fences must be constructed of material approved by the Architectural Control Committee. The location and design of the fence and any walls must be approved by the Architectural Control Committee."

         Jonathan Jones owns property subject to the terms of the Declaration ("the property").[1] In March 2016, Jones submitted plans to the ARC for construction of a retaining wall in the front yard of the property. The ARC denied that request. In April 2016, Brent Bishop resubmitted proposed plans to build the retaining wall. In response, Bishop received an e-mail, ("the e-mail") which in pertinent part, stated:

The Riverwood ARC has reviewed your proposal and cannot issue a determination yet because your proposal does not meet the criteria for a landscape modification proposal as outlined in the Riverwood Covenants. Please submit a plan that shows all of the modifications you intend to make instead of pictures of the existing landscape with notes describing the modifications. The plan must be a true landscape design plan with pictures of the materials you intend to use for the modifications. The plan you recently ...

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