Huntcliff Homes Association, Inc., is composed of homeowners in a residential subdivision. Its Board of Directors enforces the subdivision’s Declaration of Covenants and Restrictions. Alec Redfearn and his wife live in a house on Lot 64 and are constructing a new home on Lot 65. The Association complains of the Redfearns’ construction of a retaining wall for a driveway within 25 feet of the boundary line between Lot 65 and adjoining property to the west owned by the Rainwaters. The Association claims that the Redfearns built the wall in violation of the Declaration of Covenants and in breach of an agreement between the parties. The Association sought equitable relief in the form of a mandatory injunction requiring the Redfearns to remove the wall, as well as an award of attorney fees and litigation expenses under OCGA § 13-6-11. The Redfearns maintained that the Board had approved plans and specifications for the retaining wall. They further asserted that the equitable defense of laches barred a grant of equitable relief because the Association did not bring suit until after the wall was built even though it had been put on notice before construction began.
The trial court granted summary judgment to the Association on its claim for injunctive relief, but denied the Association’s attorney fee request. In Case Number A00A0804, the Redfearns appeal the summary judgment ruling. In Case Number A00A0805, the Association cross-appeals the denial of its claim for attorney fees. Because the Georgia Constitution states that the Supreme Court shall have appellate jurisdiction of “all equity cases,”1 this case was initially appealed to that court. A divided Supreme Court, however, concluded that this is not an equity case and transferred the appeal to us.2 We find that the Redfearns did not have a variance for the retaining wall and that summary judgment in favor of the Association on the issue of contract construction was appropriate. However, we find that the trial court erred in not submitting the Redfearns’ defense of laches, and the Association’s claim for attorney fees, to a jury.
