                             FOURTH DIVISION
                               DOYLE, P. J.,
                          COOMER and MARKLE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                  September 4, 2019




In the Court of Appeals of Georgia
 A19A1274. RIVERWOOD HOMEOWNERS ASSOCIATION. INC.
     v. JONES.

      COOMER, Judge.

      Pursuant to our grant of a discretionary appeal, Riverwood Homeowners

Association, Inc. (the “Association”) appeals the trial court’s order denying its

request for attorney fees under the terms of a declaration, and reversing a previous

award of attorney fees under OCGA § 13-6-11. For the reasons that follow, we affirm.

      On November 6, 2000, Riverwood Development, Inc. (the “Developer”) filed

a Declaration of Covenants, Conditions, Restrictions and Easements (“the

Declaration”), which provided that the Association had been established for the

purpose of exercising certain functions, including “administering and enforcing the
covenants and restrictions . . . .” The Declaration also created the Architectural

Control Committee, (“ARC”) which referred to

      [the Developer] or such other individuals or entities as Developer may
      appoint, until all lots in Riverwood shall have been fully developed and
      permanent improvements constructed thereon and sold to permanent
      residents; at which time such terms shall mean and refer to those persons
      selected annually by the owners in compliance with the bylaws of the
      Association to serve as members of said committee.


      As relevant to this appeal, the Declaration provides that:

      If any Structure shall be erected, placed, maintained or altered upon any
      Lot, otherwise than in accordance with the plans and specifications
      approved by the Architectural Control Committee pursuant to the
      provisions of this Article, such erection, placement, maintenance or
      alteration shall be deemed to have been undertaken in violation of this
      Article and without the approval required herein.


The term Structure includes “any thing or object, the placement of which upon any

Lot may affect the appearance of such Lot . . . .” The Declaration further requires that:

“Fences must be constructed of material approved by the Architectural Control

Committee. The location and design of the fence and any walls must be approved by

the Architectural Control Committee.”



                                           2
          Jonathan Jones owns property subject to the terms of the Declaration (“the

  property”).1 In March 2016, Jones submitted plans to the ARC for construction of a

  retaining wall in the front yard of the property. The ARC denied that request. In April

  2016, Brent Bishop resubmitted proposed plans to build the retaining wall. In

  response, Bishop received an e-mail, (“the e-mail”) which in pertinent part, stated:

          The Riverwood ARC has reviewed your proposal and cannot issue a
          determination yet because your proposal does not meet the criteria for
          a landscape modification proposal as outlined in the Riverwood
          Covenants. Please submit a plan that shows all of the modifications you
          intend to make instead of pictures of the existing landscape with notes
          describing the modifications. The plan must be a true landscape design
          plan with pictures of the materials you intend to use for the
          modifications. The plan you recently submitted contradicts the notes you
          submitted with the existing plan. Please re-submit a plan which complies
          with the Covenants.




          On July 1, 2016, Jones proceeded to construct the retaining wall. Jones

  maintained at trial that he believed the Association had approved the construction of



      1
       While seeking approval for the retaining wall, Jones was also in the process of
purchasing the property from Brent Bishop. Bishop also submitted proposals for the wall
and communicated with the Association and the ARC on Jones’s behalf.

                                             3
the wall because the e-mail did not explicitly deny the proposal, but rather stated that

the ARC “[could not] issue a determination yet.” And, under Article II, Section 6 of

the Declaration,”[f]ailure by the [ARC] to take action within forty-five (45) days of

the receipt of plans and specifications submitted for approval shall be deemed final

approval of such plans and specifications.” The Association, however, treated its e-

mail as a denial of Jones’s proposal, and then sent Jones a written notice asking him

to cure the violations of the Declaration.

      On May 1, 2017, the Association filed a complaint for injunctive relief,

requesting that the trial court issue a permanent injunction requiring Jones to comply

with the terms of the Declaration by “removing the unapproved wall and restore the

Property to its previous condition[.]” The Association further requested attorney fees

pursuant to the terms of the Declaration, as well as under OCGA § 13-6-11.

      Following a bench trial, the trial court entered a final judgment, finding “that

it would be unjust to require [Jones] to remove the keystone concrete block retaining

wall in the front yard of [the property] in its entirety.” Thus, the trial court ordered

Jones to “resurface the entire visible (from any angle) exterior surface of the existing

concrete block retaining wall with an attached decorative finish” within 30 days of

the court’s order. The court, however, concluded that Jones had been “stubbornly

                                             4
litigious in all attempts to resolve this matter,” and therefore, awarded the Association

$6,850.00 in attorney fees under OCGA § 13-6-11. The trial court did not address the

Association’s request for attorney fees pursuant to the terms of the Declaration.

      Jones filed a motion for reconsideration or, in the alternative, motion for new

trial, seeking the reversal of the award of attorney fees under OCGA § 13-6-11. The

Association also filed a motion to amend final judgment, renewing its request for

attorney fees under the Declaration. Following a hearing, the trial court vacated its

previous ruling with respect to its finding of stubborn litigiousness on the part of

Jones, as well as the award of attorney fees under OCGA § 13-6-11. The trial court

also declined to award the Association attorney fees under the terms of the

Declaration. The Association then filed a discretionary appeal application, which we

granted. It now contests the trial court’s failure to award attorney fees.

      1. The Association asserts that the trial court erred by reversing its prior grant

of attorney fees pursuant to OCGA § 13-6-11. We disagree. OCGA § 13-6-11 allows

recovery of attorney fees if “the defendant has acted in bad faith, has been stubbornly

litigious, or has caused the plaintiff unnecessary trouble and expense.” It is only

necessary for recovery that the plaintiff show any one of these three conditions exists.

Allen v. Brackett, 165 Ga. App. 415, 421 (3) (301 SE2d 486) (1983). “Further, an

                                           5
award of attorney fees under OCGA § 13-6-11 is to be affirmed if there is any

evidence to support it.” City of Gainesville v. Waters, 258 Ga. App. 555, 559 (4) (574

SE2d 638) (2002) (citation and punctuation omitted). “Questions concerning bad

faith, stubborn litigiousness, and unnecessary trouble and expense under OCGA § 13-

6-11 are generally questions for the [factfinder] to decide.” Jones v. Ceniza, 257 Ga.

App. 806, 810 (5) (572 SE2d 362) (2002) (footnote omitted).

      In his motion for reconsideration or, in the alternative, for a new trial, Jones

argued in pertinent part that “[u]nder Georgia law, a recovery of attorney fees under

OCGA § 13-6-11 for stubborn litigiousness is not authorized where there is a bona

fide controversy between the parties on a breach of contract claim, even where a

controversy is decided adversely to a party.” Jones therefore urged the trial court to

reconsider the award of attorney fees and expenses under OCGA § 13-6-11 for

stubborn litigiousness as a genuine dispute existed between the parties.

      In its order on the motion for reconsideration, the trial court found that “a

genuine dispute existed between the parties as to the clarity and meaning of certain




                                          6
  communications between the parties . . . .”2 We find that the record supports this

  conclusion. In its final judgment, the trial court found that

          [w]hile it is true that [the e-mail] does not specifically deny the proposal,
          it does address the proposal and indicates that the proposal as submitted
          is insufficient for approval. It would have been clearer for the
          Riverwood ARC to deny the proposal outright rather than state they
          could not issue a determination. This lack of definitive clarity is why
          this Court is not wholly unsympathetic to Defendant’s situation even
          though it ultimately disagrees with Defendant’s position that no action
          was taken by the ARC in response to his last submitted proposal.


  (emphasis in original).

          Moreover, our examination of the record reveals that the fundamental issue at

  trial between the parties was the import and effect of the e-mail. The Association

  maintained that the e-mail constituted a denial of Jones’s proposal; Jones argued that

  he was permitted to build the wall because the ARC took no action. Accordingly, the



      2
        The court also apparently denied attorney fees because the relief granted varied
from the relief sought by the Association. The Association argues that it was improper to
deny attorney fees on that basis. In light of our determination that the trial court correctly
denied attorney fees because a genuine dispute of fact existed as to the meaning of the e-
mail, we need not reach this question.




                                               7
trial court did not err in finding that a bona fide controversy existed between the

parties, and denying attorney fees on that basis. See Steel Magnolias Realty, LLC v.

Bleakley, 276 Ga. App. 155, 157 (2) (622 SE2d 481) (2005) (“A recovery of attorney

fees under OCGA § 13-6-11 for stubborn litigiousness or for causing the plaintiff

unnecessary trouble and expense is authorized where the evidence reveals no bona

fide controversy or dispute with regard to the defendant’s liability.” (citations

omitted)).

      2. The Association next argues that the trial court erred by denying its request

for attorney fees under the terms of the Declaration. “The declaration of a

homeowner’s association is considered a contract.” SAWS at Seven Hills, LLC v.

Forestar Realty, 342 Ga. App. 780, 784 (1) (805 SE2d 270) (2017) (citation and

punctuation omitted). To construe the Declaration, we apply the normal rules of

contract construction and our application of those rules is de novo. See Crabapple

Lake Parc Community Assn. v. Circeo, 325 Ga. App. 101, 104-105 (1) (a) (751 SE2d

866) (2013).

      The cardinal rule of construction is to ascertain the intent of the parties.
      Where the contract terms are clear and unambiguous, the court will look
      to that alone to find the true intent of the parties. To determine the intent
      of the parties, all the contract terms must be considered together in

                                           8
      arriving at the construction of any part, and a construction upholding the
      contract in whole and every part is preferred. When the language
      employed by the parties in their contract is plain, unambiguous, and
      capable of only one reasonable interpretation the language used must be
      afforded its literal meaning and plain ordinary words given their usual
      significance.


Id. at 105 (1) (a) (citation and punctuation omitted). The Declaration in this case

pertinently provides that if the ARC concludes that a homeowner has erected an

illegal structure, such as a retaining wall, without the required approval, it:

      shall be entitled and empowered to enjoin or remove any such
      construction. Any costs and expenses (including but not limited to
      attorney’s fees, court costs, filing fees, and interest) incurred by the ARC
      in enjoining and/or removing any construction or improvements shall be
      added to and become a part of the assessment to which the Owner and
      his Lot are subject.


(emphasis supplied).

      The Association argues that merely because it had the right to enjoin the

construction of Jones’s wall that it satisfied the requirement for an award of attorney

fees under the Declarations. Jones counters that under the express terms of the

Declaration, only expenses incurred by the ARC, and not the Association, would be

recoverable. At trial, a witness testified that the ARC is “part of [the Association].”

                                           9
. At no point, however, did the trial court address the nature of the relationship

between the two entities, but rather, concluded that “[u]pon additional review of the

entire record the Court again declines to award attorney’s fees to [the Association]

pursuant to [the Declaration].”

      Regardless of the nature of the relationship between the Association and the

ARC, the Association failed to present any evidence that the ARC incurred any costs

or expenses (including attorney fees) in this action.

             [A party] cannot recover for professional services without proof
      of their value. Generally, a party will proffer the opinion testimony of
      his present counsel as well as that of other attorneys in an effort to show
      what constitutes a reasonable attorney fee in light of the litigation
      history of the case. An award of attorney fees is unauthorized if appellee
      failed to prove the actual costs of the attorney and the reasonableness of
      those costs.


Fiat Auto U.S.A., Inc. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987)

(citations and punctuation omitted).

      Here, current counsel for the Association testified that each month he sent a bill

to his client that summarized his time spent and the amount charged for each

transaction in this case. He further testified that he sent the bills to Riverwood

Homeowners Association, but that he did not know who paid the bill or “what

                                          10
account the check was written on.” Jones is correct that under the terms of the

Declaration, he would only be liable for paying attorney fees incurred by the ARC.

Because no evidence was presented that showed that the ARC incurred costs, per the

plain language of the Declaration, Jones is not required to pay any attorney fees.

Accordingly, the trial court did not err in failing to award attorney fees under the

terms of the Declaration.

      Judgment affirmed. Doyle, P. J., and Markle, J., concur.




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