MICHAEL C. XU v. ANTHONY M. YONNONE

• Court: Court of Appeals of Georgia
• Decided: June 21, 2022
• Docket: A22A0418
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., GOBEIL and PINSON, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 21, 2022

In the Court of Appeals of Georgia A22A0418. XU et al. v. YONNONE et al.

MCFADDEN, Presiding Judge.

Anthony and Vilma Yonnone filed a petition against Michael Xu, Renee He,

and the Garrison Oaks Homeowners Association, Inc., seeking a declaratory

judgment that a retaining wall between a lot owned by the Yonnones and the adjacent

lot owned by Xu and He is a “party wall” as defined by the Garrison Oaks declaration

of covenants. The Yonnones also sought an award of attorney fees under OCGA § 13-

6-11, claiming unnecessary trouble and expense of having to bring the declaratory

judgment action. After an evidentiary hearing, the trial court entered a final order

declaring that the wall is a party wall as defined by the declaration of covenants and

awarding the Yonnones $11,652 in attorney fees pursuant to OCGA § 13-6-11. Xu and He appeal, challenging the trial court’s declaratory judgment and the

award of attorney fees. Because the appellants have failed to show that the trial court

erred in finding that the retaining wall is a party wall under the terms of the

declaration of covenants, we affirm the declaratory judgment. And because there was

evidence supporting the award of attorney fees under OCGA § 13-6-11, we also

affirm that award.

1. Declaratory judgment.

“A trial court’s findings of fact after a declaratory judgment hearing are

analogous to a jury verdict and will not be interfered with if there is any evidence to

support them. However, we review the trial court’s conclusions of law de novo.”

Brown v. Brown, 359 Ga. App. 511, 517 (1) (857 SE2d 505) (2021) (citation and

punctuation omitted).

Here, the trial court found that the retaining wall is located on or adjacent to

the boundary line separating the parties’ lots; that the retaining wall divides the lots,

supporting the land on which the Yonnones’ home is built and preventing it from

falling onto Xu and He’s adjacent property; that structures and improvements on Xu

and He’s property abut and are tied into the retaining wall; that Xu and He make use

of and benefit from the retaining wall; and that the retaining wall was built as part of

2 the original construction on the two lots. Based on its findings, the trial court

concluded that the retaining wall is a party wall under the terms of the declaration of

covenants, which provides that “[e]ach wall or fence built as a part of the original

construction on the Lots which shall serve and separate any two (2) adjoining Lots

shall constitute a party wall or fence[.]”

Xu and He contend that the trial court incorrectly interpreted the declaration

of covenants. We disagree.

A property owners’ declaration of covenants is a contract whose construction, interpretation, and legal effect is a question of law. The cardinal rule of contract interpretation is to construe the contract so as to effectuate the intent of the parties. Where that intent is evident from the plain language used in the covenants, the court’s job is simply to apply that language as written.

S-D RIRA, LLC v. Outback Property Owners’ Assn., 330 Ga. App. 442, 452-453 (3)

(c) (765 SE2d 498) (2014) (citations and punctuation omitted). Here, as the appellants

acknowledge in their brief, the declaration plainly provides that a wall is considered

a party wall if it was built as part of the original construction and it serves to separate

any two adjoining lots. So the trial court’s job was simply to apply that plain language

as written. And since there was evidence presented at the hearing showing that the

retaining wall in question was built as part of the original construction, that the wall

3 serves the two adjoining lots by supporting the Yonnones’ land and preventing their

home from falling on Xu and He’s property, and that it separates the two adjoining

lots, the trial court did not err in finding that the wall in question is a party wall under

the declaration’s plain terms.

In arguing otherwise, Xu and He cite Wilensky v. Robinson, 203 Ga. 423, 427

(47 SE2d 270) (1948), to support their claim that the retaining wall is not a party wall

because it does not sit entirely on the boundary line between the lots. But unlike the

instant case, Wilensky did not involve a declaration of covenants. Because the instant

case, unlike Wilensky, turns on interpreting the declaration’s definition of a party

wall, which does not include a requirement that the wall sit entirely on a boundary

line, we cannot read such an additional requirement into that definition. The trial

court therefore did not err in declaring that the retaining wall separating the adjacent

lots is a party wall as defined by the declaration of covenants.

2. Attorney fees.

Xu and He contend that the attorney fees award under OCGA § 13-6-11 should

be reversed because there was a bona fide dispute about the party wall. But the trial

court did not award attorney fees based on a finding that there was no such bona fide

dispute; rather, the court based the award on the refusal of the appellants to

4 participate in arbitration as required by the declaration of covenants. Because there

was evidence to support that finding, it must be affirmed.

“[A]ttorney fees may be awarded under OCGA § 13-6-11 if ‘the factfinder

determines the defendant has acted in bad faith, has been stubbornly litigious, or has

caused the plaintiff unnecessary trouble and expense.’” Yash Solutions, LLC v. New

York Global Consultants Corp., 352 Ga. App. 127, 137 (1) (b) (834 SE2d 126) (2019)

(citations and punctuation omitted). “The standard of review of an award of attorney’s

fees under OCGA § 13-6-11 is whether there is any evidence to support the award.

The appellate courts cannot reverse such an award merely because the evidence

would have supported a verdict for the defendant.” L. S. Land Co. v. Burns, 275 Ga.

454, 457 (3) (569 SE2d 527) (2002) (citations and punctuation omitted).

The trial court based its award of attorney fees on evidence showing that Xu

and He refused to participate in arbitration as required by the declaration for disputes

over a party wall, thereby causing the Yonnones unnecessary trouble and expenses

of litigation. Indeed, the record shows that the declaration included such an

arbitration provision, that the appellants refused the request to arbitrate, and that the

Yonnones therefore brought the instant lawsuit to resolve the dispute. Because there

was some evidence supporting the trial court’s findings, “we cannot hold as a matter

5 of law that attorney’s fees in this . . . case were not authorized under OCGA § 13-6-

11.” L. S. Land Co., supra.

Judgment affirmed. Gobeil and Pinson, JJ., concur.