RICKMAN, C. J., MCFADDEN, P. J., and SENIOR APPELLATE JUDGE
PHIPPS
PHIPPS, SENIOR APPELLATE JUDGE.
This is
the second appearance in this Court of this contempt
proceeding, which arises out of disputes concerning a Georgia
Power easement containing an electric transmission line on
the property of defendant Christopher Cowart d/b/a Cowart
Tree Experts. In Cowart v. Ga. Power Co., 354
Ga.App. 748 (841 S.E.2d 426) (2020), Cowart appealed from an
order in which the superior court found him in contempt for
repeated violations of prior superior court orders, awarded
Georgia Power $187, 998.99 in damages and fees, and ordered
Cowart to comply with various specified safety measures
concerning the easement. In that appeal, we vacated the
superior court's order and remanded for that court to
determine whether it had subject matter jurisdiction over the
current contempt proceeding. Id. at 752-753. On
remand
following additional briefing, the superior court ruled that
it had subject matter jurisdiction over the proceeding and
reinstated its prior contempt order. It is from that order
that Cowart now appeals, challenging the superior court's
ruling on subject matter jurisdiction and seeking a ruling on
the merits of his initial appeal. For the reasons that
follow, we affirm the superior court's jurisdictional and
contempt rulings.
This
appeal arises out of a dispute between the parties dating
back to 2002. We set forth the underlying facts in our prior
opinion:
In 2002, Georgia Power sued Cowart[, ] seeking a restraining
order and injunction to prevent Cowart from encroaching and
obstructing its [100-foot-wide] easement [that runs through
Cowart's property] (the "2002 Action"). This
lawsuit resulted in an order in 2002 (the "2002
Order") which provided, in part:
[Cowart] shall remove from the . . . easement area . . . all
. . . items which have been placed by [Cowart] on the
right-of-way-easement . . . . Except as specifically agreed
to by [Georgia Power] in writing, this [c]ourt[ ] hereby
enjoins [Cowart] from placing any [obstruction or] operating
any machinery . . . on the . . . easement area[. Cowart] is
further enjoined from blocking or obstructing the
easement area
. . . In 2003, Georgia Power petitioned for contempt,
alleging that Cowart continued to dangerously operate
equipment [and] place obstructions in the right of way, and
undermined the tower that supports the transmission line . .
. . The trial court conducted an evidentiary hearing [at
which it] found that Georgia Power presented evidence that
supported its allegations . . . . The trial court also heard
testimony about a contractor of Cowart making contact with
Georgia Power's conductors as well as testimony that
Cowart's operational practices created a risk of severe
injury or death. Accordingly, the trial court found that
"a substantial threat to the health and safety of
employees, visitors, and others exist[s] as a result of the
operations of [Cowart] on the right of way easement . . .
."
As a result of Georgia Power's [2003] contempt petition,
the trial court entered another order in 2005 (the "2005
Order"). The trial court ordered the parties to enter an
Encroachment Agreement that the parties had negotiated, and
it incorporated such agreement into its order. The 2005 Order
more specifically identified the restrictions and
prohibitions on Cowart's conduct in Georgia Power's
easement.
Following entry of the 2005 Order, Georgia Power again
petitioned for contempt against Cowart. This petition
resulted in the trial court's entry of a 2006 order in
the 2002 Action (the "2006 Final Consent Order")
which, among other things, appointed a special master to
observe Cowart's compliance with the court's prior
order and to report violations to the trial court. . . .
In 2012, Georgia Power filed a document titled "Petition
for Contempt and Imposition of Sanctions[, ]" which
sought a finding of contempt of the 2005 Order entered in the
2002 Action (the "2012 Action") . . . .
The relief requested by Georgia Power in its 2012 petition
included Cowart's incarceration, fines . . ., an order to
permanently remove obstructions from the easement, for the
trial court to "[f]ormulate a design for improvements to
the right of way so that Defendant Cowart is not able to
violate the [c]ourt's order and is physically restrained
from contempt including the construction of gates and fencing
at [Cowart's] expense," as well as a request that
the trial court terminate the previously entered Encroachment
Agreement.
After this filing by Georgia Power, the special master issued
reports in the 2012 Action finding violations of the 2005
Order, specifically materials being impermissibly stored in
the easement. Georgia Power subsequently moved for an
emergency hearing on its contempt petition in the 2012 Action
as a result of an event on August 15, 2012. On that day, a
third-party contractor of Cowart entered Georgia Power's
easement with a truck and raised a mounted boom into the
energized field surrounding the transmission line.
Electricity arced from the line to the boom, causing the
front two tires of the truck to blow out. Fortunately, the
driver of the vehicle was unharmed. This event caused a
regional power outage which resulted in traffic problems,
interrupted the dispatch of emergency services, [and caused]
regional security systems failures. As a result of an
emergency hearing, and upon the agreement of the parties, the
trial court entered an order which,
among other things, required Cowart to hire an electrical
transmission expert to monitor his compliance with the 2005
Order. In 2015, Georgia Power filed another emergency motion
for contempt in the 2012 Action, alleging that Cowart's
workers were again . . . operating . . . heavy equipment
under the transmission line.
Ultimately, in 2018, the trial court entered an order in the
2012 Action finding Cowart in contempt of the 2005 Order (the
"2018 Order"). In the 2018 Order[, ] the trial
court reaffirmed the prior findings of fact, conclusions of
law, and injunctions contained in its prior orders entered in
the 2002 Action. The trial court found that Cowart
"repeatedly and intentionally violated the Orders of
[the trial c]ourt . . . designed to protect the property of
[Georgia Power] and the lives of all that come onto the
easement of Georgia Power." After recounting the
numerous violations it found, the trial court stated:
"Each of these violations creates conditions that are
extremely dangerous and likely to cause irreparable injuries
if they are allowed to continue." The trial court
concluded that [Cowart's failure to follow its prior
orders made it] "necessary for a structure to be built
to restrain . . . his business operation . . . from
trespassing on the [easement]."
As a result of its finding of contempt, the trial court
specifically ordered as follows:
[Cowart] is ordered to install all safety measures shown on
the remedial drawing and site plan attached [to the 2018
Order] as Exhibit "A" within forty-five (45) days
of the filing of [the] Order. [Cowart] shall be allowed to
continue
currently-allowed operation for forty-five (45) days during
the installation of said safety measures. In the event that
said measures are not completely installed within the
forty-five (45) day period outlined above, [Cowart] is
ordered to cease all activities on [the] easement until
installation of the safety measures is completed. This
[c]ourt incorporates the legal conclusions expressed in the
[2005 Order] as the governing law justifying this remedy.
Should [Cowart] not meet the forty-five (45) day deadline
imposed above, subsequent to his installation of such safety
measures, [Cowart] shall be allowed to resume activity within
the easement area that is in compliance with the prior orders
and any written Encroachment Agreements between the parties.
Cowart, 354 Ga.App. at 749-752 (capitalization and
footnote omitted).
Cowart
appealed, and we sua sponte vacated the 2018 Order and
remanded with instructions for the superior court to
determine whether Georgia Power's 2012 contempt petition
constituted "an attempt to improperly commence a new
civil action," which, we stated, would have deprived the
superior court of "subject matter jurisdiction to hear
the matter." Cowart, 354 Ga.App. at 753.
On
remand, Georgia Power filed a "Motion to Confirm the
Jurisdiction of this Court," in which it asked the
superior court to find that the court had subject matter
jurisdiction over the 2012 contempt petition on the ground
that the petition was not a wholly new civil action but
rather was a continuation of the prior underlying proceeding
that gave rise to the contempt. Georgia Power asserted that
its contempt petition could not have been filed under the
prior case's docket number because both the Uniform
Superior Court Rules ("USCR") and the Gwinnett
County Clerk's Office require a new case number to be
assigned to a contempt proceeding where, as here, the
underlying case has been closed for 30 days. In support of
its motion, Georgia Power submitted an affidavit by the
Gwinnett County Clerk of Court, who attested as follows:
If a contempt action is filed in a case which has been closed
by our office due to the fact that a final judgment has been
entered and the time for appeal has lapsed, then we assign
the contempt action a new case number pursuant to Uniform
Superior Court Rule 39.2.
If a contempt action is filed and a new case number is given,
it is our office's policy to assign that contempt action
to the Division and Judge who entered the final order because
it is not a new case, but is a continuation of the prior
civil action.
...
