Daniel v. Amicalola Electric Membership Corp...

• Decision Date: 27 June 2011
• Docket Number: No. S11A0019.,S11A0019.
• Citation: 289 Ga. 437,711 S.E.2d 709
• Parties: DANIEL et al.v.AMICALOLA ELECTRIC MEMBERSHIP CORPORATION.
• Court: Georgia Supreme Court

289 Ga. 437

711 S.E.2d 709

11 FCDR 1935

DANIEL et al.

v.AMICALOLA ELECTRIC MEMBERSHIP CORPORATION.

No. S11A0019.

Supreme Court of Georgia.

June 27, 2011.

Krevolin & Horst, Troy R. Covington, Jeffrey D. Horst, Atlanta, for appellants.Sponcler & Tharpe, Henry C. Tharpe, Jr., Rebecca Bisson Gober, Dalton, for appellee.Tisinger Vance, Steven Thomas Minor, Kristin Haynes Dial, Carrollton, amici curiae.NAHMIAS, Justice.

The trial court entered summary judgment against appellants Margaret and Buddie Daniel on their claims for trespass, conversion, and declaratory judgment against the Amicalola Electric Membership Corporation (AEMC). We affirm the trial court's rejection of the Daniels' constitutional challenges to the one-year statute of limitation contained in OCGA § 46–3–204. We then affirm in part and reverse in part the grant of summary judgment because issues of material fact remain regarding the existence of a valid prescriptive easement and the Daniels' trespass and conversion claims based on AEMC's 2008 actions are not barred by OCGA § 46–3–204.

1. Viewed in the light most favorable to the Daniels as the party opposing summary judgment, the evidence in the record shows the following. In 2006, the Daniels bought a house and 26.28 acres of land in rural Pickens County. AEMC had long ago run utility lines through a wooded area far from the house but had taken them out of service at least 15 years earlier. The Daniels' title search showed no recorded easements, and they found no evidence of a utility easement during their thorough pre-closing physical inspection of the property. Neither the Daniels nor their immediate predecessors had actual knowledge of the old utility lines.

On April 6, 2007, the Daniels discovered that AEMC had entered the property and clear-cut a swath 750 feet long by 40 feet wide through the forest. AEMC used chainsaws to remove over 40 trees, including some that had been there for at least 25 years, and substantially damaged a natural spring and a creek bank. The clear-cutting exposed a single standing utility pole with unconnected wires dangling from it and a second utility pole rotting on the ground. There were no live wires.

The Daniels complained to AEMC and were directed to Bobby Crump, AEMC's long-time manager in charge of utility line maintenance. Crump told the Daniels that AEMC had abandoned the utility lines on the property over ten years ago, that no wires had been run across the area that was clear-cut for many years, that overgrown vegetation had obscured any visible signs of utility poles in the area, and that AEMC did not have an easement on the property. Crump assured the Daniels that AEMC would not reenter the property or perform any further maintenance work until the easement issue had been resolved. Despite Crump's assurances, the Daniels had an attorney write a cease and desist letter to AEMC on April 13, 2007. AEMC did not respond.

Thirteen months later, on May 21, 2008, AEMC again entered the Daniels' property without notice to spray herbicide, killing the vegetation that had begun to grow back since the clear-cutting a year earlier. The Daniels' attorney immediately wrote AEMC to protest the new entry. On May 22, 2008, AEMC's attorney wrote back, asserting that AEMC had an easement across the property and had not abandoned the easement. An AEMC corporate representative later confirmed that there was no written easement.

On July 7, 2008, the Daniels filed suit against AEMC seeking a declaratory judgment that AEMC did not have an easement on their property, damages for trespass and conversion for the 2007 and 2008 incidents, an injunction against further trespasses, and attorney fees. AEMC filed an answer and counterclaim seeking a declaration that it had a prescriptive easement. AEMC later asserted as a defense that the lawsuit was filed after the one-year statute of limitation, see OCGA § 46–3–204,¹ had run and filed a motion for summary judgment on that ground. In response, the Daniels disputed the existence of an easement and argued that the statute of limitation should be tolled because AEMC fraudulently concealed their causes of action, which they had exercised reasonable diligence to discover. The Daniels also argued that their claims based on the second incident were not time-barred in any event, because they accrued in May 2008 and the complaint was filed two months later. On August 20, 2009, the Daniels filed a supplemental brief asserting that OCGA § 46–3–204 is unconstitutional because it violates the Equal Protection Clause of the Georgia Constitution and is unconstitutionally vague.

At the summary judgment hearing on January 6, 2010, AEMC argued that the trial court lacked jurisdiction to rule on the merits of the Daniels' constitutional challenges to OCGA § 46–3–204 because the Daniels did not serve a copy of the supplemental brief on the Attorney General. The Daniels served the Attorney General the following day. Five months later, on June 7, 2010, the trial court granted summary judgment to AEMC, and the Daniels filed a timely appeal.

2. We first address AEMC's contention that the trial court and this Court lack jurisdiction to decide the Daniels' constitutional challenges to OCGA § 46–3–204 because this is (in part) a declaratory judgment action and the Daniels failed to timely serve the Attorney General with a copy of the proceeding. ² AEMC cites OCGA § 9–4–7(c), which is part of Georgia's Uniform Declaratory Judgments Act, see OCGA §§ 9–4–1 to 9–4–10. OCGA § 9–4–7(c) provides that “[i]f a statute of the state ... is alleged to be unconstitutional, the Attorney General of the state shall be served with a copy of the proceeding and shall be entitled to be heard.” AEMC also relies on Williams v. Kaylor, 218 Ga. 576, 129 S.E.2d 791 (1963), where we held that compliance with OCGA § 9–4–7(c) is “mandatory and jurisdictional.” Id. at 576, 129 S.E.2d 791.

OCGA § 9–4–7(c) applies only in declaratory judgment actions. See, e.g., Woodes v. Morris, 247 Ga. 771, 772, 279 S.E.2d 704 (1981); Daniel v. Fed. Nat. Mtg. Assn., 231 Ga. 385, 387, 202 S.E.2d 388 (1973). The purpose of the requirement is to give the Attorney General “ ‘notice ... of a constitutional attack being made on the statute and the opportunity, if he desires, to be heard.’ ” State of Ga. v. Golia, 235 Ga. 791, 794, 222 S.E.2d 27 (1976) (citation omitted). Despite OCGA § 9–4–7(c)'s use of the word “serve,” we have long held that it “does not make the Attorney General a party to the proceeding, nor does it require service of process upon him ... under the provisions of the Civil Practice Act.” Pharris v. Mayor, etc. of Jefferson, 226 Ga. 489, 490, 175 S.E.2d 845 (1970). Moreover, “[t]here is no requirement that notice of service be filed in the record.” Id. The Declaratory Judgments Act does not say how the Attorney General is to be served, and, of particular importance here, it does not set a time or deadline for compliance to avoid dismissal. See Williams v. Kaylor, 218 Ga. at 579, 129 S.E.2d 791 (noting that “what constitutes compliance [with OCGA § 9–4–7(c) ] and the extent to which the attorney general may or should participate” are not settled in the case law). Notably, the statute does not appear intended to allow pre-litigation settlement of constitutional challenges, but rather to ensure that the State has the opportunity to defend its laws in court before they are declared invalid. Compare Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824, 653 S.E.2d 729 (2007) (“ ‘[T]he purpose of [ante litem notice] requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit’ ” (citations omitted)).

We conclude that OCGA § 9–4–7(c) does not apply to this case. The Daniels did not file a declaratory judgment action to have OCGA § 46–3–204 declared unconstitutional. The declaratory judgments sought by the Daniels and by AEMC in its counterclaim pertain to whether AEMC has an easement on the Daniels' land. OCGA § 46–3–204 was raised by AEMC as a defense, and the Daniels then asserted the unconstitutionality of OCGA § 46–3–204 as an argument against that defense. This is far afield from filing a declaratory judgment action seeking to hold OCGA § 46–3–204 unconstitutional.

Furthermore, even assuming that OCGA § 9–4–7(c) did apply here, it was not violated. OCGA § 46–3–204 was not at issue in the case until April 2009, when AEMC amended its answer and counterclaim to plead OCGA § 46–3–204 as a defense. The Daniels challenged the constitutionality of applying the statute of limitation to their claims in August 2009, and AEMC first complained about the alleged lack of compliance with OCGA § 9–4–7(c) at the summary judgment hearing on January 6, 2010. The Daniels had a copy of their supplemental brief hand-delivered to the Attorney General the next day along with a cover letter informing him that they had made a constitutional challenge to OCGA § 46–3–204, that the trial court had taken the matter under advisement, and that the Attorney General should inform the trial court if he wished to be heard on the matter. The trial court then kept the matter under advisement for the next five months before ruling.

Thus, the Attorney General had notice of the Daniels' challenge to the constitutionality of OCGA § 46–3–204 five months before the trial court ruled, but he made no attempt to be heard on the matter. Nor has the Attorney General participated in the case on appeal. Under these circumstances, we cannot say that the Daniels failed to sufficiently comply with OCGA § 9–7–4(c), even assuming they were required to do so. We therefore reject AEMC's argument that this Court and the trial court lack jurisdiction and decline to dismiss the appeal. This case is not like Williams v. Kaylor, where we affirmed dismissal of a complaint filed under the Declaratory Judgments Act to have a statute declared...