Xu v. Yonnone

364 Ga.App. 390

875 S.E.2d 368

XU et al.

v.YONNONE et al.

A22A0418

Court of Appeals of Georgia.

June 21, 2022

William Wingate Downs, Atlanta, for Appellant.

Randall M. Lipshutz, Tucker, Steven Jeffrey Luper, for Appellee.

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 S.E.2d 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 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 S.E.2d 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 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 S.E.2d 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...