Goodman v. Lake Buckhorn Estates Homeowners Ass'n, Inc., A96A2350

Decision Date20 February 1997
Docket NumberNo. A96A2350,A96A2350
Citation481 S.E.2d 882,224 Ga.App. 765
CourtGeorgia Court of Appeals

Barry Staples, Marietta, for appellant.

Smith & Diment, Dana G. Diment, Head, Head & Head, David C. Head, Carrollton, Hamilton, Westby, Marshall & Antonowich, David C. Marshall, Atlanta, for appellee.

RUFFIN, Judge.

Jesse Goodman appeals from the trial court's order directing him to remove his "modular" home from property in Lake Buckhorn Estates, a subdivision in Carroll County, Georgia. For reasons which follow, we affirm.

The record reveals that Goodman purchased land within Lake Buckhorn Estates and began erecting a modular home on the property. Claiming that Goodman's home violated various restrictive covenants, bylaws, rules and regulations governing the subdivision, the Lake Buckhorn Estates Homeowners Association, Inc. ("the Association") sued Goodman, seeking removal of the home. The trial court granted a default judgment to the Association after Goodman failed to file a timely answer.

Goodman subsequently moved to vacate the default judgment. The trial court held a hearing on the motion, during which Goodman's attorney, as well as attorneys and representatives of the Association, appeared and presented testimony and argument. The trial court agreed to open the default and then proceeded to address the merits of the action. Goodman's attorney did not request a continuance or object to reaching the merits at that time. The parties and the court discussed the matter off the record, after which the trial court found in favor of the Association and ordered Goodman to remove his modular home within six months.

Through new counsel, Goodman filed a motion for new trial, claiming that the trial court had no evidence on which to base its decision, that he did not know the merits would be reached at the hearing, and that he possessed relevant evidence that should have been heard. The trial court denied Goodman's motion, and this appeal followed.

1. In its brief, the Association contends that Goodman's appeal is untimely and should be dismissed. Pursuant to OCGA § 5-6-38(a), Goodman filed his notice of appeal within 30 days after entry of the trial court's order denying his motion for new trial. The Association argues, however, that Goodman's motion challenges only the trial court's legal conclusions and judgment, rather than factual issues or errors contributing to the verdict, and thus was not a proper "motion for new trial." According to the Association, Goodman should have filed his notice of appeal within 30 days after entry of judgment on the merits, which he failed to do. We disagree.

The trial court, sitting as factfinder, determined that Goodman violated the restrictive covenants governing the subdivision. Through his motion for new trial, Goodman questioned the factual basis for this conclusion and argued that the trial court had no evidence from which to make its ruling. We conclude that Goodman's motion challenged the determination of substantive facts by the factfinder and thus constituted a proper motion for new trial. See Bank South Mortgage v. Starr, 208 Ga.App. 19, 429 S.E.2d 700 (1993). Accordingly, we will reach the merits of this appeal.

2. In his first enumeration of error, Goodman claims that to the extent this case was settled during the hearing on the merits, the trial court should have obtained a written agreement executed by the parties. We disagree.

The record reveals that the trial court ruled in the Association's favor on the merits: "[I] [f]ind in favor of the plaintiff, find that the defendant has violated the covenants written of the land." The attorneys for the parties and the trial court then agreed that Goodman should be afforded six months to remove the modular home. The trial court next stated on the record that Goodman would have six months to comply and ultimately memorialized this requirement in its written order.

To the extent this agreement regarding Goodman's deadline for compliance could be characterized as a "settlement," no additional writing is necessary. An agreement reached in open court need not be reduced to writing. White v. Owens, 172 Ga.App. 373, 323 S.E.2d 167 (1984). This enumeration is without merit.

3. In his second enumeration of error, Goodman argues that the trial court had no basis on which to find for the Association because it received no evidence at the hearing on...

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3 cases
  • Kmart Corp. v. Merriweather
    • United States
    • Georgia Court of Appeals
    • February 22, 2002
    ...(1997). 5. (Citations omitted.) Spivey v. State, 237 Ga. App. 626, 627(1), 516 S.E.2d 332 (1999). 6. Goodman v. Lake Buckhorn Estates &c., 224 Ga.App. 765, 767(3), 481 S.E.2d 882 (1997). 7. Campbell v. Crumpton, 173 Ga.App. 488, 489(2), 326 S.E.2d 845 (1985); see Turner v. Watson, 139 Ga.Ap......
  • Spratt v. Henderson Mill Condominium Ass'n, Inc., A96A2325
    • United States
    • Georgia Court of Appeals
    • February 20, 1997
    ... ... Yorkshire Condominium Assn., 201 Ga.App. 185(1), 410 S.E.2d 455 (1991). In ... ...
  • Bonds v. Bonds, A99A1713.
    • United States
    • Georgia Court of Appeals
    • December 9, 1999
    ...supported the trial court's ruling. Marshall v. SDA, Inc., 234 Ga.App. 312, 313(3), 506 S.E.2d 661 (1998); Goodman v. Lake Buckhorn &c., 224 Ga.App. 765(3), 481 S.E.2d 882 (1997). Accordingly, the remaining enumerations are without Judgment affirmed. McMURRAY, P.J., and PHIPPS, J., concur. ...
1 books & journal articles
  • Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, and Teresa T. Abell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-1, September 1997
    • Invalid date
    ...484 S.E.2d at 348 (citation omitted). 207. Id. at 625, 484 S.E.2d at 348. 208. Goodman v. Lake Buckhorn Estates Home Owners Assoc., 224 Ga. App. 765, 767, 481 S.E.2d 882, 884 (1997). 209. 222 Ga. App. 638, 476 S.E.2d 34 (1996). 210. Id. at 639, 476 S.E.2d at 36. 211. Id. at 638, 476 S.E.2d ......

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