Prime Bank v. Galler

Clarke, Chief Justice.

The superior court ordered Prime Bank to demolish a house under construction because the house was being built in violation of procedural requirement contained in a protective covenant. Prime Bank appeals. Appellant urges this Court to reverse the trial court order. We remand the case for further consideration by the trial court to determine if demolishing the house is the least oppressive means of remedying the violation.

*287The appellees purchased a lot in the Amanda Woods subdivision from the developer, Amanda Woods, Inc. Robert Carpenter was the principal shareholder and manager of Amanda Woods, Inc. The architect, Killy Kunimoto, designed all of the houses in the subdivision. Because of the relatively small size of the lots, the houses were built very close to one another. Mr. Kunimoto’s challenge was to design the houses to fit in the subdivision with one another. At about the time they bought the lot, the Gallers contracted with Amanda Woods to build a house. The Gallers invested a great deal of money in the house which won an award for its design.

Restrictive covenants protect the property in the Amanda Woods subdivision. The Gallers relied upon these covenants to protect the value of their home. The covenants required the builder to obtain the approval of all plans by an architectural control committee (the “Committee”) before construction began. Approval could be obtained by default where the plans were not rejected after 45 days from the date of submission to the Committee. In addition, the builder could make no changes after the Committee approved the plans, and construction could not be started until such approval was obtained.

Appellant Prime Bank provided a construction loan to Robert Carpenter to build a house on lot seven of the Amanda Woods subdivision immediately adjacent to the Gallers’ lot. The plans for the house were submitted to the Committee, consisting of Mr. Carpenter, Mr. Kunimoto, and another builder in the development, Mr. Price. After the 45-day default period elapsed without objection, Mr. Carpenter obtained a construction loan from Prime Bank. Mr. Carpenter began construction on the house working from a “mirror image” plan submitted to the bank. He had taken the plans as designed by Mr. Kunimoto and submitted to the Committee and reversed them. When Carpenter submitted these plans to the bank, the notations on these “mirror-image” plans were backwards. After beginning work on the house, Mr. Carpenter went to Mr. Kunimoto and asked him to adjust the plans to reflect the reversed design. Prime Bank became the owner of the house and lot through a foreclosure sale after the death of Mr. Carpenter.

Mr. Galler filed this lawsuit because the house on lot seven did not fit into the design scheme of the neighborhood. Specifically, he contends that Mr. Carpenter changed the plans of the house after the original design was approved by the architectural control committee. Any changes in the plans after approval by the Committee are prohibited under the restrictive covenants. The houses in Amanda Woods are designed so that the windows of each house face one another, and the blank walls of each house also face one another. This design creates a kind of “courtyard” view for each resident while minimizing the impact of a large wall with few openings. The house on lot *288seven, however, was changed so that the blank wall faces the Gallers’ windows. In addition, its placement on the lot obscures the view to and from the house. The trial court found that the house violated the restrictive covenants and ordered that the house be demolished. Prime Bank appeals from the decision on several grounds.

1. Where the trial court makes findings of fact, they shall not be set aside unless clearly erroneous. OCGA § 9-11-52. There is sufficient evidence to support the trial court’s finding that Mr. Carpenter violated the requirements of the restrictive covenant. The trial court found that the original plans submitted by Mr. Kunimoto were approved by default. Since there is evidence in the record to support such a finding, we will not disturb it on appeal. Harp v. Winkles, 255 Ga. 42 (335 SE2d 292) (1985); Brook Forest Enterprises v. Paulding County 231 Ga. 695 (203 SE2d 860) (1974).

2. Contrary to appellant’s second and third enumerations of error, the breach of the covenant was not one that occurred at a single point in time prior to their acquisition of the property. The breach is a continuing breach of building the house according to plans not approved by the Committee. Since the violation of the restrictive covenant is a continuing one, appellant’s argument that it is not liable for its predecessor’s errors are without merit. As the appellant admits, the covenants run with the land. The bank is chargeable with notice of the existence of the recorded protective covenants. Dooley v. Savannah Bank &c. Co., 199 Ga. 353 (34 SE2d 522) (1945) (where covenants are part of a general scheme of a subdivision development, all purchasers are charged with notice since the covenant was contained in deed from common grantor).

3. Laches is ordinarily a question of fact properly submitted to a factfinder. Thomason v. Kern &c., 259 Ga. 119, 120 (376 SE2d 872) (1989). The trial court found that appellees were not guilty of laches. They approached Mr. Carpenter early in the construction of the house to question him about the potential problems with the covenant. They brought their complaints to the attention of the appellant. This court will not disturb the findings of fact of the trial court that are not clearly erroneous. OCGA § 9-11-52.

4. Equitable relief is generally a matter within the sound discretion of the trial court. McMichael v. Atlanta Envelope Co., 151 Ga. 776 (108 SE 226) (1921). The action of the trial court should be sustained on review where such discretion has not been abused. Id. However, in determining whether there has been an abuse of discretion, the conveniences of the parties cannot be ignored. Jones v. Lanier Dev. Co., 188 Ga. 141 (2 SE2d 923) (1939).

In Dawson v. Wade, 257 Ga. 552 (361 SE2d 181) (1987), the defendant had opened a canal off of a creek upstream from the plaintiff. The trial court granted an injunction ordering the defendant to close *289off the canal and to fill it back in. We remanded the case for a determination of whether it was necessary to fill in the canals to restore and maintain the creek banks.

“The injunction should always be so worded as not to impose on defendant any greater restriction [burden] than is necessary to protect the plaintiff from the injury of which he complains.”

Id. (quoting Henry L. McClintock, Principles of Equity, p. 392 (1948)). In this case, we find that there was evidence in the record that the plaintiffs’ complaints may be alleviated by less drastic measures. According to the architect, Mr. Kunimoto, the house may be altered to conform to plaintiffs’ demands. Indeed, plaintiffs make an alternative prayer for relief for abatement of the nuisance, asking that “the house be modified in such as [sic] fashion as would be acceptable to the Gallers.” Transcript of September 10, 1992 at 10.

Therefore, we remand this case to the trial court for a careful consideration of the conveniences of the parties. A mandatory injunction is an extraordinary remedy, one of the most powerful a court can issue. It is for that reason called the “strong arm of equity.” Cathcart Van &c. Co. v. Atlanta, 169 Ga. 791, 793 (151 SE 489) (1930) (citing Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. 28 (1828)).

“ ‘There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or [is] more dangerous in a doubtful case, than the issuing of an injunction.’ ”

Id. (quoting Cullman Property Co. v. H. H. Hitt Lumber Co., 77 S 574, 577 (1917)). It should be crafted in a manner that is the least oppressive to the defendant while still protecting the valuable rights of the plaintiff. See McClintock, Principles of Equity, supra. With some evidence that another less exacting alternative exists, the trial court should give further consideration to that possibility before granting the most extreme remedy.

Remanded with direction.

All the Justices concur, except Hunt, P. J., Fletcher and Carley, JJ., who dissent.