310 Ga. App. 319
Ga. Ct. App.2011Background
- Cross-appeals from trial court summary judgments on Bent Tree covenants in Jasper County, Georgia.
- Crouch stored a pontoon boat on green belt near the lake, violating covenants and rules prohibiting boat storage on green belts.
- Bent Tree notified Crouch of violations; two $25 daily fines were issued after hearings before the Board of Directors.
- Crouch sought declaratory relief arguing covenants are vague, and sought a license for encroachment; Bent Tree sought enforcement and fees.
- Trial court granted Bent Tree summary judgment on enforceability and fines; denied Crouch’s summary judgment on covenants; awarded attorney fees to Bent Tree.
- On cross-appeal, Bent Tree challenges the attorney-fees award under OCGA § 13-6-11 as inappropriate on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the covenants clear enough to prohibit boat storage on green belt areas? | Crouch argues covenants are vague and unenforceable. | Bent Tree asserts covenants unambiguously prohibit boat storage on green belts. | Yes; covenants unambiguously prohibit storage on green belts. |
| Can Bent Tree license encroachment under Article V for the boat on the green belt? | Crouch seeks license under Article V rules. | Article V does not authorize a license for encroachment. | No license authorized; encroachment not permitable. |
| May the trial court have considered an affidavit of legal conclusions with no factual issues? | Crouch argues the affidavit raises material facts. | Affidavits with mere legal conclusions are proper to be considered. | Affidavits containing mere legal conclusions may be disregarded. |
| Were there genuine issues of material fact about notice and arbitrary enforcement? | Crouch asserts improper notice and arbitrary enforcement. | Covenants were clear; Crouch was notified twice and heard; no arbitrariness shown. | No genuine issues; enforcement proper. |
| Was the attorney-fee award properly granted on summary judgment under OCGA § 13-6-11? | Crouch contends awards were improper on summary judgment. | Bent Tree seeks attorney fees under § 13-6-11. | Reversed; trial court cannot grant § 13-6-11 fees on summary judgment. |
Key Cases Cited
- Godley Park Homeowners Assn. v. Bowen, 286 Ga.App. 21 (Ga. Ct. App. 2007) (construction of restrictive covenants; plain terms control)
- Crawford v. Dammann, 277 Ga.App. 442 (Ga. Ct. App. 2006) (de novo review of covenant interpretation)
- Swanson v. Lockheed Aircraft Corp., 181 Ga.App. 876 (Ga. Ct. App. 1987) (affidavits with legal conclusions inadequate for summary judgment)
- Consumer Solutions Financial Svcs. v. Heritage Bank, 300 Ga.App. 272 (Ga. Ct. App. 2009) (legal conclusions discarded in summary judgment context)
- Covington Square Assoc. v. Ingles Markets, 287 Ga. 445 (Ga. 2010) (attorney fees cannot be awarded on summary judgment under § 13-6-11)
- Tyler v. Thompson, 308 Ga.App. 221 (Ga. Ct. App. 2011) (summary judgment on attorney fees cannot be entered; jury determines amount)
- Black Island Homeowners Assn. v. Marra, 274 Ga.App. 265 (Ga. Ct. App. 2005) (no license for variance without proper authorization)