Clary Lakes Homeowners Association, Inc. the “Association” sued homeowners Joseph and Patricia Marino, seeking damages and enforcement of a restrictive covenant that required garages to be used for parking vehicles and not for storage. The Marinos filed an answer and counterclaim, contending that the restrictive covenant was invalid. The trial court granted partial summary judgment to the Association, but in Marino v. Clary Lakes Homeowners Association, Inc.1 Marino I, we ruled that the restrictive covenant was unenforceable against the Marinos. Consequently, we reversed the trial court’s grant of summary judgment to the Association on its claims predicated on the breach of the restrictive covenant and remanded the case with direction for the trial court to enter summary judgment in favor of the Marinos as to those claims.2 In addition, we reversed the trial court’s grant of summary judgment to the Association on its claim for attorney fees under a “prevailing party” provision in the covenants, but we affirmed the denial of summary judgment to the Marinos on this issue because an award of such fees was potentially dependent upon the resolution of the Association’s claim for breach of a settlement agreement, which remained pending.3
Following remand, the Marinos filed a motion to dismiss the Association’s breach-of-settlement-agreement claim, which the trial court denied. Nevertheless, the Association ultimately dismissed this claim and then moved to dismiss the Marinos’ attorney fees claim. Finding that neither party prevailed in the litigation, the trial court granted the Association’s motion. On appeal, the Marinos contend that the trial court erred in 1 dismissing their claim for attorney fees under the “prevailing party” provision, 2 denying their motion to dismiss the claim for breach of the settlement agreement, 3 denying their motion for attorney fees pursuant to OCGA § 9-15-14 b, 4 dismissing their counterclaims, and 5 failing to enter final judgment in their favor. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.
