This is a class action in which homeowners in the Forest Park Village subdivision sued Andrew R. Jones, the owner of a private, well-based water system that has served the subdivision since its development in 1973. A jury found in favor of the class and, based on that verdict, the trial court entered an order declaring that the subdivision’s restrictive covenants did not require the homeowners to remain connected to Jones’s private water system; permanently enjoining Jones from billing the class members and/or attempting to collect from them a monthly connection fee; and awarding the Forest Park Village Homeowners’ Association $7,500 in attorney fees. Jones now appeals from the denial of his motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. He asserts that the trial court erred: i by failing to comply with certain statutory requirements in providing notice of the action to potential class members, in certifying the class, and in entering the order of final judgment; ii in allowing class members to testify as to the quality of both the service and the product provided by Jones’s water system; iii in failing to sua sponte charge the jury on the effect of a partial failure of consideration for a contract; iv in submitting the claim for attorney fees to the jury and in denying his motion for a jnov as to the award of attorney fees; and v in denying his motion for a new trial or, in the alternative, a jnov. Discerning no error in the trial court’s admission of evidence or its instructions to the jury, and finding that the evidence supported the jury’s verdict, we affirm the trial court’s order denying Jones’s motion for a new trial or, in the alternative, a jnov. We further find, however, that the final order of judgment entered below failed to comply with OCGA § 9-11-23 c 3′s requirement that it contain a description of those individuals included in the class and therefore bound by the order of judgment. Accordingly, we vacate the order of judgment and remand the case for entry of an order that contains a description of the class members, as identified in the order naming the class. On appeal of a verdict and the trial court’s denial of a motion for new trial, this court must affirm the judgment if any evidence supports it, as the jurors are the sole and exclusive judges of the weight and credit to be given the evidence. We must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Citation and punctuation omitted. Corey v. Clear Channel Outdoor, Inc. 1 So viewed, the record shows that Forest Lake Village is a subdivision located on Lake Sinclair in Putnam County. The subdivision’s restrictive covenants, which were drafted at the time of its development, provide in part that “all residences shall be connected to the central water system when it becomes available.” Between approximately 1973 and 2005, water service in the subdivision was available only through a private water system, which was originally owned by the developer. Residences that connected to this private water system did so pursuant to a standard “Water Service Agreement,” which provided: Company owner of the water system covenants and agrees that so long as water is available from existing water wells serving said water system, and to the extent said water is available, it shall furnish water under adequate pressure and in an adequate amount for domestic consumption to the aforesaid property of the Consumer, and to continuously furnish the same unless and until the operation of said water system is taken over or an adequate supply of water is otherwise made available to the property of Consumer by any municipality or other government agency or authority or public utility . . . . Emphasis supplied.
In 1993, Jones purchased the water system from the developer. As part of that transaction, Jones received an assignment of the individual water service agreements between the developer and each of the homeowners. Additionally, to be able to obtain a license to operate the water system, Jones was required to enter into a Trust Indenture Agreement which was to remain in effect “until either a the water system was taken over by either a governmental authority or public utility for maintenance and operation; or b other adequate water service is provided by either a governmental authority or public utility through means other than the operation of the current utility and facilities . . . .” Emphasis supplied.
