Water's Edge Plantation Homeowner's Ass'n, Inc. v. Reliford

• Decision Date: 12 April 2012
• Docket Number: No. A12A0054.,A12A0054.
• Citation: 12 FCDR 1436,315 Ga.App. 618,727 S.E.2d 234
• Parties: WATER'S EDGE PLANTATION HOMEOWNER'S ASSOCIATION, INC. v. RELIFORD et al.
• Court: Georgia Court of Appeals

315 Ga.App. 618
727 S.E.2d 234
12 FCDR 1436

WATER'S EDGE PLANTATION HOMEOWNER'S ASSOCIATION, INC.
v.
RELIFORD et al.

No. A12A0054.

Court of Appeals of Georgia.

April 12, 2012.

[727 S.E.2d 235]

Sell & Melton, Blake Edwin Lisenby, Macon, for Appellant.

Lawton Miller Jr., Macon, for Appellees.

BARNES, Presiding Judge.

[315 Ga.App. 618]In this case involving entry of a default judgment, Water's Edge Plantation Homeowner's Association, Inc. appeals from the trial court's order denying its request for attorney fees pursuant to OCGA § 13–6–11. For the reasons discussed below, we affirm.

The record shows that on January 14, 2011, Water's Edge sued Louis and Joann Reliford, alleging that they had violated a restrictive covenant of the homeowner's association by failing to finish building a structure on their property that they had started six years earlier, and requesting that they be enjoined from continuing the violation. Although a sheriff's entry of service reflected that the Relifords were both served with the summons and complaint on January 20, 2011, neither of them filed an answer. As a result, the case automatically went into default on February 22, 2011. See OCGA § 9–11–55(a).

On April 4, 2011, Water's Edge amended its complaint to request attorney fees and the expenses of litigation under OCGA § 13–6–11. Water's Edge thereafter moved for entry of a default judgment on April 21, 2011. Granting the motion, the trial court entered a default judgment against the Relifords on May 3, 2011, enjoining them from continuing their violation of the restrictive covenant, and ordering that the existing structure on their

[727 S.E.2d 236]

property be torn down and the property be returned to its original state.

The trial court subsequently conducted an evidentiary hearing addressing the issue of attorney fees and expenses under OCGA § 13–6–11. The hearing was not transcribed. Following the hearing, the trial court entered an order denying Water's Edge's request for attorney fees. Based on the request for attorney fees and expenses sought by Water's Edge, “the evidence and argument presented at the [315 Ga.App. 619]hearing,” and the record in the case, the trial court found that the Relifords had not acted in bad faith, had not been stubbornly litigious, and had not caused Water's Edge unnecessary trouble and expense. This appeal followed.

Water's Edge contends that the trial court erred in declining to grant its request for attorney fees and the expenses of litigation under OCGA § 13–6–11. Specifically, Water's Edge contends that the trial court's finding that the Relifords had not caused the homeowner's association unnecessary trouble and expense was erroneous as a matter of law. We disagree.

OCGA § 13–6–11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

It is solely for the trier of fact to resolve whether attorney fees and expenses should be awarded under OCGA § 13–6–11, and, if so, in what amount. See Royal v. Blackwell, 289 Ga. 473, 477–478(2)(b), 712 S.E.2d 815 (2011); Covington Square Assocs. v. Ingles Markets, 287 Ga. 445, 446, 696 S.E.2d 649 (2010). Attorney fees and expenses under OCGA § 13–6–11 can be recovered in proceedings in equity, see King v. Baker, 214 Ga.App. 229, 234–235(4), 447 S.E.2d 129 (1994), and in such cases the trial court sits as the trier of fact on the issue. See Rice v. Lost Mountain Homeowners Assn., 269 Ga.App. 351, 355–356(5), 604 S.E.2d 215 (2004). We review the decision about whether and to what extent to award attorney fees and expenses under the deferential “any evidence” standard. See City of Hoschton v. Horizon Communities, 287 Ga. 567, 569(3), 697 S.E.2d 824 (2010).

Sitting as the trier of fact, the trial court in the present case found, after conducting an evidentiary hearing, that the Relifords had...