King v. Baker
| Decision Date | 13 July 1994 |
| Docket Number | No. A94A0085,A94A0085 |
| Citation | 214 Ga.App. 229,447 S.E.2d 129 |
| Court | Georgia Court of Appeals |
| Parties | KING et al. v. BAKER et al. |
Millard C. Farmer, Jr., Atlanta, for appellants.
Harwell, Brown & Harwell, Ronald H. Harwell, Newnan, Levine & Block, Stephen H. Block, Webb, Carlock, Copeland, Semler & Stair, Johannes S. Kingma, Drew, Eckl & Farnham, Richard T. Gieryn, Jr., Atlanta, for appellees.
Larry and Sandra Baker filed suit seeking to enjoin Sam T. King and Gloria J. King from keeping a large number of pit bulls and other dogs in dog pens and maintaining a dog breeding business at their home next to the Bakers in Coweta County.
The Kings retained a real estate agent to find a house on two acres so they could build kennels. The mortgage company's attorney allegedly represented to the Kings that there were no restrictions concerning dogs. The Kings' deed contains no restrictive covenants concerning dogs or kennels. However, the restrictive covenants filed with deed records in the courthouse provide that no animals other than a "reasonable number of generally recognized house pets" shall be kept on the property, no animals shall be allowed to make an unreasonable noise or be a nuisance, "no structure for the ... housing ... of any animal shall be maintained," and that the subdivision control committee shall determine in its discretion whether a particular animal is a nuisance or whether a number of animals on a property is reasonable.
The Kings built twelve permanent pen enclosures with concrete pads and six-foot chain link fencing, visible to their next-door neighbors, the Bakers. The evidence showed unequivocally that the Kings erected two temporary pens at the back of their two-acre property when they moved in their house on September 1, 1992, and did not make permanent pens by pouring concrete until October; until then, the dogs were kept in the garage and the Bakers did not know there were a large number of dogs on the property. Neither Mr. nor Mrs. Baker testified they noticed the kennels in late September, as the dissent says. They testified that they saw temporary kennels which Mr. King himself described both as "little bitty pens" and as "big"; the Bakers did not realize until October that the Kings were building extensive concrete dog kennels and runs for a pit bull and sharpei breeding business. Mrs. Baker testified she first complained to Mrs. King about barking dogs because she did not know they were building kennels; as soon as she saw the Kings were building kennels, she complained to them. According to Mr. King, building the kennels and dog runs consisted of pouring concrete and erecting chain link fencing. The Kings testified they poured concrete in October and Mrs. King testified the Bakers complained right before Halloween.
The Bakers are complaining more about the number of dogs being kept in the kennels than the presence of the kennels. The evidence does not establish clearly whether the concrete was poured before Mrs. Baker complained to the Kings, but it does establish unequivocally that, unbeknownst to the Bakers, the Kings kept the dogs in their garage and used two temporary pens until some time in October, and nothing unusual appeared to the Bakers; as soon as the Bakers realized the Kings were building a large number of permanent kennels and runs to keep a large number of dogs for breeding, they complained to the Kings; based on a letter of complaint written by Mrs. Baker to the architectural committee, this was about October 21, 1992. Mr. Baker testified that between the time the Kings moved in and the time the Bakers saw the pens "being constructed," they did not see all the dogs as they were evidently being kept in the garage; this indicates the pens were "being constructed" before the Bakers understood that kennels were being built for a large number of dogs. Thus, it may or may not be that the concrete was poured and permanent pens erected before the Bakers realized the Kings were building dog kennels for a large number of dogs, but the evidence establishes that the Bakers were not lax in complaining to the Kings as soon as they realized that restrictive covenants were being violated by the presence of a large number of dogs in kennels.
The Bakers unsuccessfully tried to resolve the Kings' violations of the restrictions via the subdivision control committee. The Bakers alleged that eight dogs (which later increased to fourteen) were unreasonable in number and sought to prohibit the Kings from keeping more than two dogs. The Kings counterclaimed, seeking $25,000 in damages for being discriminated against on account of their race, in violation of 42 USCA § 1982. The Kings admitted at the injunction hearing that they breed pit bulls and sharpeis. Neighbors who do not live next door to the Kings testified they heard no noise and were not offended by the Kings' maintenance of dog kennels, but there was evidence the dogs and kennels create a substantial detriment to the Bakers next door and that the dogs barked at nearly every sound, even to Mrs. Baker's shaking out rugs on her porch; and the Bakers could not keep their door open to their screened porch.
The trial court decreed that the Kings could keep no more than two dogs and that all pens, enclosures, concrete pads, and fencing around the pens were to be removed. The court awarded the Bakers $750 attorney fees and dismissed the Kings' counterclaims. Appellants King enumerate the rulings as error, along with the enforcement of restrictive covenants as racial discrimination and the grant of equitable relief without a jury trial. They filed this appeal in the Supreme Court, which transferred the case here, per Pittman v. Harbin Clinic Prof. Assn., 263 Ga. 66, 428 S.E.2d 328 and Beauchamp v. Knight, 261 Ga. 608, 409 S.E.2d 208. Held:
1. This case is in the nature of a declaratory judgment action involving legal issues and framing equitable remedies. See Beauchamp, supra. The trial court did not err in declaring relief to appellees without the requested jury trial. This case was properly disposed of by declaratory judgment in the form of an injunction, and by dismissal of appellants' counterclaims, for no issue of fact remained for jury resolution. See OCGA §§ 9-11-12(c); 9-11-56; 9-4-5; 9-4-6. See also Guhl v. Davis, 242 Ga. 356, 249 S.E.2d 43. The right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and jury trial has not been waived. OCGA §§ 9-4-5; 9-4-6. Moreover, appellants did not insist on the right to a jury trial before the trial court's order was issued after a full hearing.
2. Appellants contend their counterclaims were improperly dismissed because they were not before the trial court at the injunction hearing; and that dismissal of their counterclaims was racial discrimination directed at ousting them from the neighborhood. However, evidence was offered on the Kings' counterclaims for racial discrimination, the issue was explored in detail, and no issue of fact remained for a jury. See OCGA § 9-4-5; Guhl, supra. The evidence showed the subdivision is populated by about 10 to 20 percent black persons. When Mrs. Baker sent a letter to the subdivision control committee prior to litigation, in addition to seeking enforcement of the restrictive covenants as to appellants' maintenance of eight dogs in pens and runs, she noted that the maintenance of an auto repair enterprise on the other side of the Kings' lot may have induced the Kings to build a fence in their front yard in violation of restrictive covenants and that "maybe [that] problem next to [the Kings] should also be corrected"; and she suggested restrictions be enforced as to other residents who allow their pets to run loose. She complained specifically that the Kings' maintenance of dogs in pens and runs next door to her house had damaged its value and salability. The evidence established beyond any material issue of fact that the Bakers' objection is to the Kings' dogs and dog pens, not to the Kings, and the reason the Bakers sought enforcement of the covenants against the Kings and not against others is that the Kings live next door to them.
The evidence also showed the Bakers visited the Kings and tried amicably to resolve matters by having the Kings abide by the covenants. There is no evidence that the Bakers sought to oust the Kings from the neighborhood or that the Kings were targeted because of their race. The order of the trial court directing the Kings to abide by the covenants accords with the law and does not oust them from their property. The covenants themselves do not discriminate against appellants on the basis of race, color or creed. See OCGA § 44-5-60(d)(3).
3. The trial court did not err in ordering appellants to abide by the restrictive covenants. A purchaser of land is conclusively charged with notice of restrictive covenants contained in a deed which constitutes one of the muniments of his own title (Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629); and where the covenant is recorded, as in this case, the purchaser has legal notice of it even if it is not stated in his own deed, for he takes no greater interest than his predecessor had. O'Neill v. Myers, 148 Ga.App. 749(2), 252 S.E.2d 638.
The Kings do not have a superior equity merely because they had spent $3,000 building dog pens after or slightly before the Bakers complained and before the Bakers sought injunctive relief, or because the neighborhood subcommittee did not resolve Mrs. Baker's complaint. The principle of laches in these cases is based on a complaining party's failure to voice any objection while observing the offending party expend large sums of money building a permanent structure in violation of restrictive covenants. In Bales v. Duncan, 231 Ga. 813, 204 S.E.2d 104; Davies v. Curry,...
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