This request is to have an Amicus Brief filed as a companion brief to a Petition for Certiorari to the Supreme Court of Georgia to reverse a decision of the Court of Appeals which, if left standing, will be harmful to all of the nearly 11,000 (or more) community associations in the State of Georgia. A copy of the Opinion of the Court of Appeals is attached for reference. By way of further factual detail, Deerlake Homeowners Association, Inc. (hereinafter the “Petitioner" or “Association") is a Georgia non-profit corporation duly authorized to enforce the covenants for the community commonly known as the Deerlake Community (hereinafter the “Community"), in accordance with the Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Deerlake, recorded in the Public Records of Forsyth County, Georgia, on September 20, 2002 Deed Book 2437, Page 624, et. seq., as amended from time to time (hereinafter the “Declaration"), the Bylaws of Deerlake Homeowners Association, Inc. (hereinafter the “Bylaws"), and the Deerlake Architectural Control Committee design and Maintenance Standards (hereinafter the “ACC Standards"). Pursuant to the Declaration and Bylaws, Petitioner is governed by the Georgia Nonprofit Corporation Code (hereinafter the “Code") and the Property Owners' Association Act O.C.G.A. § 44-3-220, et. seq., (hereinafter the “Act").
Craig Brown (hereinafter the “Respondent" or “Owner") is the record title owner of a parcel of real property known as 595 Fawn Run, Alpharetta, Georgia 30005 (hereinafter referred to as the “Subject Property"). The Subject Property is located within the Community. The Respondent is an “Owner" as defined by the Declaration. Both the Subject Property and the Respondent, by virtue of his ownership interest in the Subject Property, are subject to all terms, conditions, and requirements of the Declaration, Bylaws, ACC Standards, the Code and the Act. The Petitioner is responsible for, among other things, the governance and maintenance of the Community, as more specifically described by the Declaration, Bylaws and ACC Standards, and is authorized to enforce the Declaration and other governing documents of the Petitioner in the manner as more particularly authorized by the Declaration.
On February 11, 2020, Petitioner filed suit against the Respondent for ongoing violations at the Subject Property, fines relating to the violations, unpaid assessments, foreclosure of lien pursuant to O.C.G.A. § 44-3-232(a) and attorney's fees. Specifically, the ongoing violations as set forth in the Complaint were failing to maintain, repair, or replace all broken windows on the Subject Property; failing to maintain the landscaping on both the front and back of the Subject Property; and by failing to secure the home from squatters (hereinafter collectively referred to as the “Maintenance Violations") pursuant to the Paragraph 14(b) of the Declaration and Section 4.11 of the ACC Standards. The Petitioner sought injunctive relief from the Trial Court ordering the Respondent to cure the Maintenance Violations. The Verified Complaint also sought attorney's fees pursuant to both the Act (O.C.G.A. § 44-3-232(b)) and O.C.G.A. § 13-6-11.
On February 11, 2020, the Petitioner filed a verified complaint against the Respondent for ongoing violations of covenants running with the land contained in the Declaration at the SubjectProperty, fines relating to the violations, unpaid assessments, foreclosure of lien pursuant to O.C.G.A. § 44-3-232(a) and attorney's fees. Respondent defaulted on the Complaint, which alleged everything that was needed to lay a prima facie case under the law that existed at the time it was pled for all claims therein, including for injunctive relief for breach of covenant running with the land. However, following a hearing at which Respondent did not appear, the trial court entered a Final Order and Judgment granting the Petitioner's motion for default judgment, but denied the injunctive relief sought the Petitioner. Further, the Final Order and Judgment awarded the Petitioner only $1,000 in attorney's fees and costs1 and although granted foreclosure of the statutory lien, failed to include the required language to pursue foreclosure pursuant to O.C.G.A. § 44-3-232.
On March 16, 2021, the Petitioner appealed the Final Order and Judgment regarding the denial of the injunctive relief, the attorney's fees awarded and the failure to include the required foreclosure language. On April 27, 2021, Respondent filed his Appellee Brief and on May 17, 2021, Petitioner filed its Appellant's Reply Brief.
On October 26, 2021, the Court of Appeals entered its decision which held that the trial court did not err when it denied Petitioner's injunctive relief, vacated the trial court's award of attorney's fees and costs for further proceedings and clarification, and remanded the matter back to the trial court to clarify that it was an order for foreclosure pursuant to O.C.G.A. § 44-3-232(c). (hereinafter the “Opinion"). This Opinion not only ignored certain Georgia Supreme Court case precedent, as well as its own precedent, which mandated a different result, but also creates a very problematic precedent that will have undoubtedly have dangerous and catastrophic results, as more thoroughly explained herein. For these reasons, Petitioner filed its Motion for Reconsideration on November 4, 2021, and on November 11, 2021, the Court of Appeals denied Petitioner's Motion.
Now, Petitioner is filing a Petition for Writ of Certiorari in the Supreme Court of Georgia in regard to the Court of Appeals erroneous Opinion and denial of Petitioner's Motion for Reconsideration.
Court: Georgia Supreme Court
Topic: Remedies at law
Brief Author: Jason LoMonaco, NowackHoward
Filed: December 10, 2021
CAI Amicus Review Panel: Mr. Robert Diamond, Esq. (VA), Mr. Stephen Marcus Esq. (MA), Mr. Henry Goodman, Esq., CCAL (MA), Ms. Karyn Kennedy Branco, Esq., CCAL (NJ), Ms. Melissa Francis, Esq. (MI), Mr. Daniel Heaton, Esq. (CA)