Redfearn v. HUNTCLIFF HOMES ASS'N, INC.

• Decision Date: 14 February 2003
• Docket Number: No. A03A0724.,A03A0724.
• Citation: 260 Ga. App. 150,579 S.E.2d 37
• Court: Georgia Court of Appeals
• Parties: REDFEARN et al. v. HUNTCLIFF HOMES ASSOCIATION, INC.

579 S.E.2d 37

260 Ga. App. 150

REDFEARN et al. v. HUNTCLIFF HOMES ASSOCIATION, INC.

No. A03A0724.

Court of Appeals of Georgia.

February 14, 2003.

Reconsideration Denied March 11, 2003.

Weinstock & Scavo, Michael Weinstock, Andrew J. Coomes, Atlanta, for appellants.

Alec F. Redfearn, pro se.

Margaret A. Redfearn, pro se.

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Derek W. Johanson, Atlanta, for appellee.

ELDRIDGE, Judge.

In Redfearn v. Huntcliff Homes Assn., 243 Ga.App. 222, 531 S.E.2d 376 (2000), this Court found that summary judgment as to the grant of a permanent injunction against Alec F. and Margaret A. Redfearn for failure to obtain prior approval of the construction of a retaining wall was correct as a violation of the restrictive covenants and of the agreement over the proposed plans for the new house; however, this Court went on to hold that factual issues existed as to the defense of laches and as to bad faith litigation expenses under OCGA § 13-6-11, which had to be tried.¹ On remand, the trial court tried only the issues of laches and of bad faith before a jury on this Court's directions. On November 5-8, 2001, such issues were tried before a jury, and the jury returned a special verdict for the Association on both issues and against the Redfearns.²

The Association brought an action for injunction in equity and bad faith against the Redfearns for construction of the retaining wall without prior approval in conjunction with the construction of their new house and in violation of the agreement of what construction had been approved. The jury returned an advisory special verdict for the Association. After hearing the trial of the case and considering the advisory special verdict, the trial court entered a final order that decreed "[g]iven the jury's determination that the Plaintiff is not barred by laches from injunctive relief, the Court finds that, pursuant to the previous order of this Court and the ruling of the Court of Appeals, Defendants have violated the Association's Declaration of Covenants and an Agreement." (Emphasis supplied.) The trial court required the Redfearns to remove the wall and awarded the Association its litigation expenses. The Redfearns moved for a new trial based upon the special grounds that the trial court abused its discretion in excluding material evidence that constituted admissions in judicio in the pre-trial order by the Association that conflicted with its stipulation at trial and in excluding photographs taken more than two months prior to the wall's construction. The trial court denied the motion for new trial. We affirm the trial court.

The Redfearns proposed to build another house within the subdivision on a second lot that they owned. The controlling declaration gave the Association the right and duty to pass on all building plans to insure that the restrictive covenants governing the subdivision were met, which included a side-yard 25-foot setback restriction. The Association claimed that the Redfearns made certain changes in their plans without its approval and in express violation of the agreement, resulting in the construction of a 12-foot-high retaining wall, and it sought by injunction the removal of the retaining wall. In Redfearn, 243 Ga.App. at 225,531 S.E.2d 376, we held as to the factual issues:

[i]t is undisputed that neither the plat nor the construction drawing relied on by Redfearn, nor any of his other submissions to the Board, made reference to any structure labeled or identified as a retaining wall. There is no merit in Redfearn's argument that a retaining wall is shown on the construction drawing by a set of double lines on the western side of the slab. Double lines enclose the area marked "slab" on the southern and eastern side as well, and the retaining wall was built only on the western side. Obviously, the double lines do not represent a retaining wall. The parties' December 18 written agreement cannot reasonably be interpreted as denying Redfearn's request for a variance only for the pool house. His request for a variance from the setback between his and the Rainwaters' properties had been expressly denied in the November 11 letter from the Board, and the parties' letter agreement explicitly stated that under no circumstances should it be construed as an agreement to issue a variance.... Redfearn did not submit plans and specifications showing the height of the retaining wall, materials to be used, or other information required by section 1(a) of Article 5. Nor did he receive "special written permission" for a variance from the 25-foot setback requirement for the retaining wall. The parties' letter agreement states the opposite. In addition, the record shows that after Redfearn obtained the Board's approval to construct the house, he developed a set of revised plans and specifications which includes explicit drawings and descriptions of the retaining wall. The revised plans were never shown to the Association. Clearly, the parties' agreement does not grant Redfearn a variance authorizing construction of the retaining wall within the 25-foot setback between his property and that owned by Rainwater.

The trial court denied admission of portions of the Association's statement of contentions in the pre-trial order, which are below in italics. The Association's statement of the case in the consolidated pre-trial order read:

Defendants submitted to the Association for construction of a new house upon the subject property on November 19, 1996 (the "November 19 proposal"). Additionally, Defendants submitted a complete set of building plans (the "original plans").

At the time Defendants submitted the November 19, 1996 proposal, Defendants knew that a retaining wall would be required to support the driveway turnaround area providing access to their garage that they proposed to construct with their home. However, nowhere in the November 19, 1996 proposal, nowhere in the original plans, and nowhere in any of the documents submitted by Defendants to Plaintiffs did Defendants either show a retaining wall for the driveway turnaround area or label anything on these documents with the words "retaining wall." Moreover, nowhere in any of these documents did Defendants indicate that the retaining wall was to be constructed within twenty five (25) feet to the property line of the adjoining lot to the West of the subject property (the "adjoining lot").

After a meeting between the Board and Defendants in December, 1996, the Association and Defendants entered into an Agreement (the "Agreement") regarding the subdivision of Defendants' original lot and the construction of Defendants' house on the subject property. The Agreement was memorialized in writing and was signed by the Defendants and the President of the Association, Roger Wach.

The Agreement permitted Defendants to construct their house pursuant to the terms of their November 19 proposal and incorporated the November 19 proposal into the Agreement. Additionally, the Agreement stated that no variance from the twenty five (25) foot setback building requirement would be given to the Defendants.

Page 16 of the Agreement sets forth the "Driveway/Turnaround" construction plan. The "Driveway/Turnaround" construction plan indicates the Defendants were to build their garage on the basement level of their house with no further basement underneath it. There is nothing on the "Driveway/Turnaround" construction plan that shows a retaining wall. There is nothing on the "Driveway/Turnaround" construction plan or in the remainder of the Agreement that says or refers to "retaining wall."

On January 6, 1997, subsequent to the entry of the Agreement and without notice to Plaintiffs, Defendants changed their original plans submitted with the November 19 proposal (the "revised plans"). Some of the changes reflected in the revised plans included drawings and descriptions for the retaining wall on numerous pages of the revised plans, which were not included on the original plans. The Association was never presented with the revised plans prior to construction of Defendants' house nor was the Association requested to approve the revised plans.

In April, 1997, Defendants constructed a twelve (12) foot tall concrete retaining wall within twenty-five (25) feet of the property line of the adjoining lot to support their driveway turnaround area for access to their garage. Moreover, Defendants constructed their garage on the first floor level of their house, not the basement level as originally proposed. This change in plan was never discussed with the Association and never submitted by Defendants for approval by the Association. Moving the garage up one floor level required the building of the subject retaining wall.

The Association never approved the construction of the retaining wall. Defendants never submitted any plans or specifications to the Association for the construction of the retaining wall. In fact, the Association and Defendants expressly agreed that there would be no construction within twenty-five (25) feet of the property line of the adjoining lot in the Agreement.

1. The Redfearns contend that the trial court abused its discretion in excluding from evidence before the jury the redacted portions of the pre-trial order setting forth the Association's contentions. We do not agree, because there is no evidence that the trial court abused its discretion in excluding such portions of the pre-trial order.

(a) The pre-trial order, setting forth the factual contentions of the Association made by its counsel, constituted its prior statement in the pleadings made in open court, binding it as to material issues to be tried. See Davenport v. Davenport, 218 Ga. 475, 477, 128 S.E.2d 772 (1962); NAACP v. Pye, 96 Ga.App. 685, 686, 101 S.E.2d 609 (1957). However, the Redfearns' counsel proposed the stipulation and chose its wording. Then and now, the Redfearns contend that the...