Cowart v. Georgia Power Company

• Decision Date: 27 March 2020
• Docket Number: A19A2318
• Citation: 841 S.E.2d 426,354 Ga.App. 748
• Court: Georgia Court of Appeals
• Parties: COWART v. GEORGIA POWER COMPANY.

354 Ga.App. 748

841 S.E.2d 426

COWART

v.GEORGIA POWER COMPANY.

A19A2318

Court of Appeals of Georgia.

March 27, 2020

Jared Matthew Lina, Atlanta, Gerald Davidson Jr., Lawrenceville, David Stuart Fried, Atlanta, for Appellant.

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

Hodges, Judge.

This appeal presents the latest chapter in an over 15-years-long dispute between Christopher H. Cowart d/b/a Cowart Tree Experts and Georgia Power Company. Georgia Power successfully petitioned for contempt against Cowart as a result of the manner in which he operated his business on a Georgia Power easement containing a highly charged electric transmission line. Although Cowart does not dispute the finding of contempt, he appeals the trial court's order, contending (1) the trial court impermissibly modified prior orders through a contempt proceeding; and (2) the trial court erred by imposing impermissible criminal contempt sanctions that did not comply with statutory limitations. This Court, however, cannot address the merits of these enumerations because we cannot determine from the state of the record whether we have subject matter jurisdiction. To that end, the trial court needs to first determine whether Georgia Power properly filed a motion for contempt or impermissibly attempted to initiate a new civil action. Accordingly, we vacate the trial court's order and remand with direction.

To reach our determination on jurisdiction, we must first review the long and fraught history of the dispute between Georgia Power and Cowart that culminated in the order on appeal. Georgia Power operates electric transmission lines on its 100-foot-wide easement which runs through Cowart's subsequently obtained property. The simultaneous operation of these transmission lines and Cowart's business has brought the parties to court multiple times.

In 2002, Georgia Power sued Cowart seeking a restraining order and injunction to prevent Cowart from encroaching and obstructing its easement (the "2002 Action"). This lawsuit resulted in an order in 2002 (the "2002 Order") which provided, in part:

[Cowart] shall remove from the area of the 100 foot right-of-way easement area belonging to [Georgia Power] all equipment, structures, obstruction, debris, logs, trees, stacks of material, and other items which have been placed by [Cowart] on the right-of-way-easement of [Georgia Power.] Except as specifically agreed to by [Georgia Power] in writing, this Court, hereby enjoins [Cowart] from placing any brush, operating any machinery, recycled materials, inventory, bags, piles of material, equipment, trees, logs, inventory of any kind or other obstruction on the 100 foot wide easement area[. Cowart] is further enjoined from blocking or obstructing the 100-foot wide easement area of [Georgia Pacific]

The record before us on appeal does not include all of the documents and proceedings from the 2002 Action. After the entry of the 2002 Order, the parties required further court intervention. In 2003, Georgia Power petitioned for contempt, alleging that Cowart continued to dangerously operate equipment in the right of way, continued to place obstructions in the right of way, and undermined the tower that supports the transmission line by grading the right of way area underneath the line. The trial court conducted an evidentiary hearing, the transcript of which is not included in the record on appeal, at which the trial court found that Georgia Power presented evidence that supported its allegations, including pictures depicting heavy equipment operating dangerously close to the transmission line, compromise of the transmission tower due to excavation, large logs swinging dangerously close to the transmission line, and debris and other items obstructing the easement. 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 of [Georgia Power.]"

As a result of Georgia Power's 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.¹ 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. It is unclear whether the entirety of the proceedings in 2005 and 2006 are before us in the record on appeal.

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’’). This petition was assigned a new civil action number different from the 2002 Action. Along with this petition, Georgia Power served a summons which identified the document it was filing as a "complaint" which would subject Cowart to default if not answered within 30 days. It also submitted a case information sheet which, rather than selecting the box "Non-Domestic Contempt", selected the box for "Equity[.]"

The relief requested by Georgia Power in its 2012 petition included Cowart's incarceration, fines in an amount not less than $10,000 per violation, an award of attorney fees and expenses, 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 Court'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, as well as 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 observed raising a basket lift and operating other heavy...