Patricia Marino et al.v.Clary Lakes Homeowners Association, Inc.
A homeowners association sued Joseph and Patricia Marino for using their garage for storage rather than parking, relying on an amended restrictive covenant adopted after the Marinos bought their home. An earlier appeal held that the amended covenant could not bind the Marinos, who had neither supplied written assent nor been covered by the approval required by Georgia law. The association later dismissed its remaining claim that the Marinos breached a settlement agreement, but the trial court ruled that neither side had prevailed and denied the Marinos attorney fees. In two related appeals, the Court of Appeals of Georgia reversed in part. After the association dropped its remaining contract claim, the Marinos qualified as prevailing parties because the claims decided on their merits had imposed no relief against them. They were therefore entitled to fees under the declaration’s prevailing-party provision, with the amount to be determined on remand. The court affirmed the denial of fees under OCGA § 9-15-14 (b), explaining that the association’s post-remand litigation was not shown to be substantially unjustified or an unusual case. The court treated the Marinos’ challenge to the dismissed settlement claim and their counterclaim as moot or unnecessary to decide, and remanded for calculation of fees and entry of final judgment in their favor.
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