Crouch v. Bent Tree Cmty. Inc.Bent Tree Cmty. Inc. v. Crouch.
| Decision Date | 29 June 2011 |
| Docket Number | Nos. A11A0725,A11A0726.,s. A11A0725 |
| Citation | 310 Ga.App. 319,713 S.E.2d 402 |
| Parties | CROUCHv.BENT TREE COMMUNITY, INC.Bent Tree Community, Inc.v.Crouch. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Shapiro, Fussell, Wedge & Martin, George Marshall Kent Jr., Tracy Allen Marion, for appellant.Carlock, Copeland & Stair, Eric Jonathan David Rogers, Atlanta, Dennis Gary Lovell Jr., for appellee.McFADDEN, Judge.
These cross-appeals arise from the trial court's summary judgment rulings based on restrictive covenants and rules governing the Bent Tree Community in Jasper, Georgia. Because the trial court correctly refused to consider an affidavit that set forth mere legal conclusions and simply enforced the clear and unambiguous terms of the covenants, we affirm the trial court's summary judgment rulings. But because a trial court may not grant attorney fees pursuant to OCGA § 13–6–11 on summary judgment, we reverse that award.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.) Wyndham Lakes Homeowners Assn. v. Gray, 303 Ga.App. 45, 692 S.E.2d 704 (2010).
So viewed, the evidence shows that Matthew Crouch purchased a lakefront home in the Bent Tree Community. Prior to the purchase, he received and reviewed the community's covenants and rules. He subsequently began storing a pontoon boat at the lake, near the water's edge. Bent Tree notified Crouch that he was violating the community's covenants and rules against storing boats in green belt areas and that he would be fined if he failed to comply with the boat storage regulations. Approximately one week later, Crouch was notified by Bent Tree that he would be fined $25 per day for his continued violations and that he could request a hearing before the Board of Directors. Pursuant to his request, two hearings were held, after which the Board concluded that Crouch had continued to violate Bent Tree's covenants regarding the storage of his boat in a green belt area.
Crouch filed a complaint in superior court, seeking a declaratory judgment that the Bent Tree covenants are vague and unenforceable, and he filed an amended complaint requesting that his violation be declared a casual encroachment, that he be granted a license for the encroachment, and that the fines imposed against him be declared void. Bent Tree filed a counterclaim, seeking a declaratory judgment that the covenants are not vague and are enforceable, judgment for the amount of fines accrued and an award of attorney fees. The parties filed opposing motions for summary judgment. After a hearing, the trial court denied summary judgment to Crouch and granted summary judgment to Bent Tree, awarding Bent Tree the accrued fines and attorney fees incurred in pursuing its counterclaim. Crouch appeals from the summary judgment rulings, and Bent Tree cross-appeals from the denial of attorney fees incurred in defending against Crouch's complaint.
1. Crouch contends that the trial court erred in ruling that Bent Tree's restrictive covenants prohibit the storage of boats in the community's common green belt areas. The contention is without merit.
(Citations and punctuation omitted.) Godley Park Homeowners Assn. v. Bowen, 286 Ga.App. 21, 649 S.E.2d 308 (2007). In construing a restrictive covenant, the trial court Id. Accordingly, we determine de novo whether the trial court correctly ruled that Bent Tree's restrictive covenants prohibit the storage of boats on the green belt areas. See Crawford v. Dammann, 277 Ga.App. 442, 444(1), 626 S.E.2d 632 (2006).
Article IX, Section 3 of Bent Tree's Declaration of Covenants, Conditions and Restrictions provides that every property owner “shall comply with the Declaration and rules and regulations of [Bent Tree] adopted pursuant thereto, and any lack of compliance shall entitle [Bent Tree] ... to take action to enforce the terms of the Declaration or [the] rules and regulations.” With regard to boat storage, Article V, Section 20(n) of the Declaration states that
no boat ... shall be permitted on any lot except in an enclosed garage or such other location approved by the [Architectural Committee] if screened so as not to be visible from any other lot. An exception shall be any lake lot owner may place a canoe, jon boat and other similar size boat on the lot near the water's edge and not on the green belt area.
(Emphasis supplied.)
The Bent Tree rules and regulations further provide that lakefront property owners may store their boats in accordance with the restrictive covenant cited above, and that “[b]oats must be located on the owner's property and not on the Green Belt.” (Emphasis supplied.) The green belt areas are defined in pertinent part as Bent Tree
Contrary to Crouch's claim, the clear and unambiguous terms of the covenants and rules prohibit the storage of boats on the community's green belt areas. Accordingly, the trial court did not err in simply enforcing the covenants and rules according to their plain terms.
2. Crouch argues that the trial court erred in failing to rule that Bent Tree had not given his request for a license to continue his encroachment the consideration due under the terms of Article V of the Declaration. But Article V does not authorize Bent Tree to issue such a license to Crouch.
According to Article V, Section 1, the primary purpose of that article, is “to protect and preserve property values in Bent Tree by maintaining architectural and aesthetic harmony and compatibility among the lots and the structures and improvements on the lots in Bent Tree.” To that end, Article V, Section 2 provides that the Architectural Committee shall have exclusive jurisdiction over
(a) all original construction of all dwellings and other structures and improvements ... on any lot or portion of the Common Properties; (b) all other exterior or visible modifications, additions, or alterations on lots or portions of the Common Properties ...; and (c) all maintenance, repair or replacement of exterior portions of dwellings or other improvements on lots or the Common Properties.
Article V, Section 3 further states that the Architectural Committee may consider requests for approval of improvements to lots or common areas, but that...
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