Greenwald v. Sugarloaf Residential Prop. Owners Ass'n, Inc.
Citation | 800 S.E.2d 621 |
Decision Date | 23 May 2017 |
Docket Number | A17A0420 |
Parties | GREENWALD et al. v. SUGARLOAF RESIDENTIAL PROPERTY OWNERS ASSOCIATION, INC. |
Court | United States Court of Appeals (Georgia) |
Leon A. VanGelderen, for Appellant.
Roy Amit Banerjee, Marvin Paul Pastel II, Atlanta, for Appellee.
In 2001, Sugarloaf Residential Property Owners Association, Inc. ("Sugarloaf") filed a complaint against Denise and Gary Greenwald seeking a declaratory judgment that the Greenwalds had failed to comply with Sugarloaf residential covenants, conditions, and restrictions and an injunction to halt landscaping work at the Greenwalds' residence. Thereafter, also in 2001, the Greenwalds filed an answer and asserted counterclaims against Sugarloaf for abuse of discretion, nuisance, willful misconduct, and attorney fees.1 From 2010 through 2011, Sugarloaf made three settlement offers pursuant to OCGA § 9-11-68 (a)2 which were each rejected by the Greenwalds.
After all of the substantive claims were disposed of in Sugarloaf's favor, Sugarloaf filed a motion for attorney fees and expenses of litigation pursuant to OCGA § 9-11-68 (b) (1).3 The trial court granted Sugarloaf's motion, and the Greenwalds appealed.
In an unpublished opinion, this Court explained that, "[i]n granting Sugarloaf's motion, the trial court's order relied heavily upon our decision in L.P. Gas Indus. Equip. Co. v. Burch , 306 Ga.App. 156, 701 S.E.2d 602 (2010), to conclude that the relevant date for application of [OCGA § 9-11-68 ] was ‘the date(s) of the occurrence of the acts giving rise to the Greenwald [s'] cause of action[.]’ Greenwald v. Sugarloaf Residential Property Owners Assn., Inc. , Case No. A15A1136, p. 3 (1) (decided Nov. 10, 2015) (unpublished). However, this Court noted that L.P. Gas was overturned by Crane Composites, Inc. v. Wayne Farms, LLC , 296 Ga. 271, 765 S.E.2d 921 (2014) on the day before the trial court's order was entered. Greenwald , at 4 (1). Accordingly, this Court vacated the trial court's judgment and remanded this case back to the trial court "for reconsideration of the effect ... that Crane Composites has upon its decision to grant the motion for attorney fees and expenses." Id.
On remand, the trial court found that under Crane Composites it was still authorized to grant attorney fees and expenses to Sugarloaf pursuant to OCGA § 9-11-68. The Greenwalds appeal from that order, contending, inter alia, that the application of OCGA § 9-11-68 to this case is unconstitutional. For the following reasons, we reverse.
1. The Greenwalds contend that the application of OCGA § 9-11-68 to this case is unconstitutional. Specifically, they argue that under Crane Composites , because their lawsuit was commenced prior to the effective date of OCGA § 9-11-68, this statute was impermissibly applied retroactively.
Fowler Properties Inc., v. Dowland , 282 Ga. 76, 77 (1), 646 S.E.2d 197 (2007). Crane Composites , 296 Ga. at 273, 765 S.E.2d 921.
The trial court found that the Greenwalds implicitly amended their counterclaim to add a claim for continued nuisance and expressly amended their counterclaim to add a claim for punitive damages after the effective date of OCGA § 9-11-68. The trial court reasoned that because these amendments were added after the effective date of OCGA § 9-11-68, under Crane Composites , attorney fees and expenses pursuant to the statute were authorized. We disagree.
Fowler Properties , 282 Ga. at 78 (1), 646 S.E.2d 197.
The Supreme Court of Georgia in Crane Composites held that OCGA § 9-11-68 was "properly applie[d] prospectively [even though the alleged injury occurred prior to the statute's effective date] because the lawsuit was commenced after the effective date [of the statute]." Crane Composites , 296 Ga. at 274, 765 S.E.2d 921. The Court in Crane Composites distinguished Fowler Properties by reasoning that in Fowler Properties the Court held only that OCGA § 9-11-68 could not be applied retroactively because the lawsuit was filed prior to the effective date of the statute. Id. The Court noted that, "[OCGA § 9-11-68 ] could have been applied in Fowler if the lawsuit had been filed after the effective date." Id.
As a matter of first impression, we consider whether OCGA § 9-11-68 applies when a lawsuit is filed prior to the effective date of the statute and is subsequently amended to add additional claims after the effective date of the statute. Sugarloaf argues that because the Greenwalds amended their counterclaims after the effective date of OCGA § 9-11-68, the trial court properly applied the statute to this case. However, Sugarloaf's argument is an overly broad interpretation of existing Supreme Court precedent. In both Crane Composites and Fowler Properties , the Supreme Court focused on the date the lawsuit was filed in determining whether OCGA § 9-11-68 was being improperly, retroactively applied. See Crane Composites , 296 Ga. at 274, 765 S.E.2d 921 ; see also Fowler Properties , 282 Ga. at 78 (1), 646 S.E.2d 197 ; see generally Ga. Dept. of Corrections v. Couch , 295 Ga. 469, 476 (2) (b), 759 S.E.2d 804 (2014) ( ).
In this case, pretermitting whether the Greenwalds amended their counterclaim after the effective date of OCGA § 9-11-68 to add claims for continued nuisance and punitive damages, the lawsuit was commenced in 2001 when the Greenwalds filed their initial counterclaim, which included tort claims, prior to the effective date of the...
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...328, 638 N.W.2d 319, 325 (Wis. Ct. App. 2001) (same); and Greenwald v. Sugarloaf Residential Prop. Owners Ass'n, Inc., No. A17A0420, 341 Ga.App. 451, 454, 800 S.E.2d 621, 623-24, 2017 WL 2243130, at *3 (Ga. Ct. App. May 23, 2017) (statute permitting award of attorney's fees and expenses cou......