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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

          DOYLE, P. J., COOMER and MARKLE, JJ.

          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 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 submitted contradicts the notes you submitted with the existing plan. Please re-submit a plan which complies with the Covenants.

         On July 1, 2016, Jones proceeded to construct the retaining wall. Jones maintained at trial that he believed the Association had approved the construction of the wall because the e-mail did not explicitly deny the proposal, but rather stated that the ARC "[could not] issue a determination yet." And, under Article II, Section 6 of the Declaration, "[f]ailure by the [ARC] to take action within forty-five (45) days of the receipt of plans and specifications submitted for approval shall be deemed final approval of such plans and specifications." The Association, however, treated its email as a denial of Jones's proposal, and then sent Jones a written notice asking him to cure the violations of the Declaration.

         On May 1, 2017, the Association filed a complaint for injunctive relief, requesting that the trial court issue a permanent injunction requiring Jones to comply with the terms of the Declaration by "removing the unapproved wall and restore the Property to its previous condition[.]" The Association further requested attorney fees pursuant to the terms of the Declaration, as well as under OCGA § 13-6-11.

         Following a bench trial, the trial court entered a final judgment, finding "that it would be unjust to require [Jones] to remove the keystone concrete block retaining wall in the front yard of [the property] in its entirety." Thus, the trial court ordered Jones to "resurface the entire visible (from any angle) exterior surface of the existing concrete block retaining wall with an attached decorative finish" within 30 days of the court's order. The court, however, concluded that Jones had been "stubbornly litigious in all attempts to resolve this matter," and therefore, awarded the Association $6, 850.00 in attorney fees under OCGA § 13-6-11. The trial court did not address the Association's request for attorney fees pursuant to the terms of the Declaration.

         Jones filed a motion for reconsideration or, in the alternative, motion for new trial, seeking the reversal of the award of attorney fees under OCGA § 13-6-11. The Association also filed a motion to amend final judgment, renewing its request for attorney fees under the Declaration. Following a hearing, the trial court vacated its previous ruling with respect to its finding of stubborn litigiousness on the part of Jones, as well as the award of attorney fees under OCGA § 13-6-11. The trial court also declined to award the Association attorney fees under the terms of the ...


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