In Redfearn v. Huntcliff Homes Association, Inc., 243 Ga. App. 222 531 SE2d 376 2000, this Court found that summary judgment as to the grant of a permanent injunction against Alec F. and Margaret A. Redfearn for failure to obtain prior approval of the construction of a retaining wall was correct as a violation of the restrictive covenants and of the agreement over the proposed plans for the new house; however, this Court went on to hold that factual issues existed as to the defense of laches and as to bad faith litigation expenses under OCGA § 13-6-11, which had to be tried.1 On remand, the trial court tried only the issues of laches and of bad faith before a jury on this Court’s directions. On November 5-8, 2001, such issues were tried before a jury, and the jury returned a special verdict for the Association on both issues and against the Redfearns.2
The Association brought an action for injunction in equity and bad faith against the Redfearns for construction of the retaining wall without prior approval in conjunction with the construction of their new house and in violation of the agreement of what construction had been approved. The jury returned an advisory special verdict for the Association. After hearing the trial of the case and considering the advisory special verdict, the trial court entered a final order that decreed “given the jury’s determination that the Plaintiff is not barred by laches from injunctive relief, the Court finds that, pursuant to the previous order of this Court and the ruling of the Court of Appeals, Defendants have violated the Association’s Declaration of Covenants and an Agreement.” The trial court required the Redfearns to remove the wall and awarded the Association its litigation expenses. Emphasis supplied. The Redfearns moved for a new trial based upon the special grounds that the trial court abused its discretion in excluding material evidence that constituted admissions in judicio in the pre-trial order by the Association that conflicted with its stipulation at trial and in excluding photographs taken more than two months prior to the wall’s construction. The trial court denied the motion for new trial. We affirm the trial court.
