Deerlake Homeowners Association, Inc. v. Craig Brown

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
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THE TIMES SET BY OUR COURT RULES.
October 26, 2021
In the Court of Appeals of Georgia
A21A1090. DEERLAKE HOMEOWNERS ASSOCIATION, INC.
v. BROWN.
REESE, Judge.
Deerlake Homeowners Association, Inc. (the “Association”) appeals from an
order of the Superior Court of Forsyth County, which granted the Association’s
motion for default judgment against Craig Brown, denied its request for injunctive
relief, partially granted its request for a money judgment, and found that the
Association was entitled to enforce its statutory lien. For the reasons set forth infra,
we affirm the default judgment and denial of injunctive relief, vacate the award of
attorney fees and costs, and remand the case for further proceedings.
The Association filed a verified complaint against Brown, alleging that certain
real property located at 595 Fawn Road in Alpharetta (the “Property”) was a “Lot”
as defined by the Amended and Restated Declaration of Covenants, Conditions, and
Restrictions for Deerlake Community (“Declaration”), as amended and recorded in
the Public Records of Forsyth County, and was thus subject to the Declaration.
Further, as the record title owner of the Property, Brown was an “Owner” and thus
subject to certain terms of the Declaration.
According to the complaint, Brown had failed to maintain the Property under
the terms of written architectural control committee design and maintenance
standards (“ACC Standards”) incorporated by the Declaration. The Association
sought injunctive relief, damages (fines, unpaid assessments, and attorney fees and
costs), and foreclosure of the Association’s statutory lien.
The trial court granted the Association’s motion for service by publication on
Brown. The Association subsequently filed a motion for default judgment, asserting
that it had served Brown through publication and that Brown had failed to file a
timely responsive pleading.
Following a hearing at which Brown did not appear, the trial court granted the
Association’s motion for default judgment.1 The court denied the Association’s
1
Brown filed a responsive brief in this Court, alleging, inter alia, that he was
not properly notified of the hearing. The correctness of the rulings against Brown are
not before this Court and will not be considered as no cross-appeal has been
2
request for injunctive relief as to the alleged maintenance violations, however, finding
that the Association had an adequate remedy at law. The court found that the
Association had failed to show that the $80,225 in fines for maintenance violations
was “reasonable,” as required by the Bylaws. “For example, the [trial c]ourt [found]
it unreasonable that [the Association] ha[d] chosen to fine [Brown] $25 per day for
almost five years for failure to clean and repaint a mailbox rather than simply having
the work done and assessing him for the cost.”
The trial court found further that the Association had established its right to an
award of $6,875 in past due assessments, $550 in late fees, and $1,300 in interest, less
the $2,818.75 in payments that Brown had made. The court further awarded the
Association $1,000 in attorney fees and costs. The court thus awarded a money
judgment against Brown in the amount of $6,906.25 and found that the Association
was entitled to enforce its statutory lien against the property in this amount. This
appeal followed.
docketed. See Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783, 784 (1) (302 SE2d
594) (1983).
3
As an initial matter, we must address our duty to inquire into our jurisdiction
to entertain each appeal.2 OCGA § 5-6-35 (a) (6) governs “[a]ppeals in all actions for
damages in which the judgment is $10,000.00 or less[,]” and requires an application
to appeal.3 Thus, the money judgment of $6,906.25 in this case, on its own, would not
be directly appealable. However, the Association also seeks review of the denial of
its request for injunctive relief, which is subject to direct appellate review under
OCGA § 5-6-34 (a) (4).4
“The declaration of a homeowner’s association is considered a contract, and
we therefore apply the normal rules of contract construction to determine the meaning
of the terms therein. Our application of the rules of construction to the relevant
2
See Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633
SE2d 623) (2006).
3
Harpagon Co. v. Davis, 283 Ga. 410, 411-412 (658 SE2d 633) (2008) (“A
‘judgment’ for the purposes of OCGA § 5-6-35 (a) (6) is the final monetary result of
the claim for damages.”).
4
See Prison Health Svcs. v. Ga. Dept. of Admin. Svcs., 265 Ga. 810, 811 (1)
(462 SE2d 601) (1995) (“While a judgment or an order denying an application for
injunctive relief . . . is a judgment or order subject to direct appellate review . . . , it
is subject to the discretionary application procedure if the underlying subject matter
of the appeal is one contained in O.C.G.A. § 5-6-35.”).
4
documents is de novo.”5 With these guiding principles in mind, we turn now to the
Association’s claims of error.
1. The Association argues that the trial court erred in denying its request for
injunctive relief and that it was entitled to an order that Brown remedy the
maintenance violations. According to the Association, the trial court essentially held
that the Association had to perform abatement and thereafter assess Brown for costs,
ignoring the Association’s governing documents.
“An injunction is a harsh remedy, and the movant must clearly establish the
right to such relief.”6
While in a civil action, not in equity, where the case is in default, the
plaintiff is entitled to a default judgment as a matter of law without the
introduction of any evidence except as to unliquidated damages, yet in
equity cases which involve harsher remedies a determination must be
first made that, admitting every allegation in the petition as true, the
plaintiff is entitled to the relief sought. This presents a question of law
for the court, similar to prior adjudications on general demurrer, but
without the presumptions against the pleader as was required by
5
Chisolm v. Danforth, LLC, 352 Ga. App. 682, 686-687 (835 SE2d 666)
(2019) (punctuation and footnotes omitted).
6
Westpark Walk Owners v. Stewart Holdings, 288 Ga. App. 633, 637 (2) (655
SE2d 254) (2007) (punctuation and footnote omitted).
5
demurrer practice. Once such a determination has been made that,
accepting the allegations of the plaintiff’s claim as true, he is entitled to
a decree, then such decree must be entered.7
However, “[t]he granting and continuing of injunctions shall always rest in the
sound discretion of the judge, according to the circumstances of each case. This
power shall be prudently and cautiously exercised and, except in clear and urgent
cases, should not be resorted to.”8 “Equitable relief is improper if the complainant has
a remedy at law which is ‘adequate,’ i.e., as practical and as efficient to the ends of
justice and its prompt administration as the remedy in equity.”9
Here, the trial court did not err in finding that the Association was not entitled
to injunctive relief. Accepting the allegations of the complaint as true, the Declaration
allowed the Association to abate or remove a violation and to assess “all costs,
including reasonable attorney’s fees actually incurred[ ]” in exercising such self-help
7
Times-Journal v. Jonquil Broadcasting Co., 226 Ga. 673, 676 (2) (177 SE2d
64) (1970).
8
OCGA § 9-5-8.
9
Besser v. Rule, 270 Ga. 473, 475 (510 SE2d 530) (1999) (citation and
punctuation omitted); see also OCGA § 9-5-1 (“Equity, by a writ of injunction, may
restrain proceedings in another or the same court, a threatened or existing tort, or any
other act of a private individual or corporation which is illegal or contrary to equity
and good conscience and for which no adequate remedy is provided at law.”).
6
against the violating lot owner. The fact that this contractual language was permissive
is irrelevant to the determination of whether it constituted an adequate remedy at law.
In light of this option, the Association did not show that it would suffer irreparable
harm if the trial court did not order Brown to remedy the maintenance violations.10
2. The Association contends that the trial court erred by failing to include the
required language under the Georgia Property Owners’ Association Act11 for the
Association to be able to perform the judicial foreclosure of its statutory lien.
In its verified complaint, the Association included a count for judicial
foreclosure of its lien pursuant to OCGA § 44-3-232 (c). The trial court granted the
Association’s motion for default judgment. The court ordered that the Association
was “awarded a money judgment against [Brown] in the amount of [$6,906.25] and
that [the Association] was entitled to enforce its statutory lien against the property in
this amount pursuant to OCGA § 44-3-232.”
10
See Quadron Software Intl. Corp. v. Plotseneder, 256 Ga. App. 284, 291 (3)
(568 SE2d 178) (2002) (reversing denial of summary judgment on claim for specific
performance where the plaintiff failed to show that money damages would be
inadequate or that he would be irreparably injured if the agreement was not enforced).
11
See OCGA § 44-3-220 et seq.
7
OCGA § 44-3-232 (c) provides, in relevant part, that a property owners’
association lien of at least $2,000 “may be foreclosed by the association by an action,
judgment, and court order for foreclosure in the same manner as other liens for the
improvement of real property[.]” We agree with the Association that remand is
appropriate for the trial court to clarify that its order was an “order for
foreclosure[.]”12
3. The Association argues that the trial court erred in awarding only $1,000 in
attorney fees and costs and failing to award the attorney fees and costs that the
Association had actually incurred. Because the Association presented evidence that
the court costs and litigation expenses alone (not including attorney fees) were in
excess of $1,000, the Association argues that the trial court effectively did not award
any attorney fees.
We are unable to review this claim of error because we cannot ascertain the
authority for the trial court’s award. In its complaint, the Association sought costs of
litigation under both OCGA § 13-6-11 and the Declaration. At the hearing on the
12
See OCGA § 44-3-232 (c). See generally Adewumi v. Amelia Grove/Ashland
Park Homeowners Assn., 337 Ga. App. 275, 279-280 (3) (787 SE2d 761) (2016)
(affirming summary judgment in favor of property owners’ association on its
complaint for judicial foreclosure of lien because fundamental due process
requirements of notice and hearing were satisfied).
8
motion for default judgment, the Association presented uncontradicted evidence on
the attorney fees and costs it had actually incurred and the reasonableness of the fees.
However, the trial court neither identified the basis under which it was making the
award nor included findings that would support it.13 We must therefore vacate the
order and remand the case to the trial court for clarification and further findings on
the basis of the award.14
In summary, we affirm the trial court’s denial of injunctive relief, vacate the
attorney fees and costs award, and remand for the trial court to clarify that its order
was an order of foreclosure under OCGA § 44-3-232 (c) and to make further findings
with respect to the Association’s request for attorney fees and costs.
Judgment affirmed in part and vacated in part, and case remanded. Doyle,
P. J., and Brown, J., concur.
13
See Parland v. Millenium Constr. Svcs., 276 Ga. App. 590, 593 (2) (623
SE2d 670) (2005) (“[W]hen awarding attorney fees [under OCGA § 13-6-11], a trial
court must make express findings of fact and conclusions of law as to the statutory
basis for any such award and the conduct which would authorize it.”) (punctuation
and footnote omitted).
14
See OCGA § 44-3-232 (a), (b) (3); Ellington v. Gallery Condo. Assn., 313
Ga. App. 424, 427 (2) (721 SE2d 631) (2011) (concluding that the trial court was
required to award attorney fees under an analogous provision in OCGA § 44-3-109
of the Georgia Condominium Act).
9