Cowart v. Ga. Power Co.

• Court: Georgia Court of Appeals
• Writing for the Court: Phipps, Senior Appellate Judge.
• Citation: Cowart v. Ga. Power Co., 362 Ga.App. 574, 868 S.E.2d 241 (Ga. App. 2022)
• Decision Date: 14 January 2022
• Docket Number: A21A1805
• Parties: COWART v. GEORGIA POWER COMPANY.

362 Ga.App. 574

868 S.E.2d 241

COWART

v.GEORGIA POWER COMPANY.

A21A1805

Court of Appeals of Georgia.

January 14, 2022

Reconsideration Denied February 11, 2022

David Stuart Fried, Atlanta, for Appellant.

Anthony O. L. Powell, Lawrenceville, Wesley Charles Ross, Dublin, Jay James Crowley Crowley, for Appellee.

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, 841 S.E.2d 426. 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, 841 S.E.2d 426 (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, 841 S.E.2d 426.

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.

The superior court granted Georgia Power's motion and entered an "Order Establishing...