Georgia Kraft Co. v. Rhodes, 44406
| Decision Date | 07 October 1987 |
| Docket Number | No. 44406,44406 |
| Citation | 257 Ga. 469,360 S.E.2d 595 |
| Parties | GEORGIA KRAFT COMPANY v. RHODES, et al. |
| Court | Georgia Supreme Court |
E.R. Lambert, Lambert and Roffman, Madison, Walter J. Matthews, Smith, Shaw, Maddox, Davidson & Graham, Rome, for Georgia Kraft Co.
Thomas R. Burnside, Jr., James B. Wall, Burnside, Wall & Daniel, Augusta, Kenneth E. Goolsby, Thomson, for C.L. Rhodes, Jr., et al.
This is an appeal from a permanent injunction entered against Georgia Kraft; the controlling issues are the construction to be given to the terms of a timber purchase contract (hereinafter Contract) and a lease agreement (hereinafter Lease) entered into between Georgia Kraft and the predecessors in title to the appellees (hereinafter the Rhodes). After two hearings the trial court concluded that Georgia Kraft had breached the Contract which allowed the Rhodes to exercise their right to terminate the agreements.
On January 1, 1957, the Rhodes as sellers entered into the Contract with Georgia Kraft for the purchase and sale of timber on 6400 acres of land; on June 1, 1957 they entered into the Lease of the same lands to run concurrently with the Contract and providing further that the Lease would terminate upon termination for any reason of the Contract.
The Contract provided that Georgia Kraft have the right to cut one cord of wood per acre per year and would pay the Rhodes the contract pricing for these cords whether or not they were cut in a given year. The Contract also establishes a "Cord Credit Account" and provides that when Georgia Kraft fails to harvest its one cord per acre in a year then there will be an account balance entitling Georgia Kraft to cut unharvested trees which were paid for at any time during the duration of the Contract.
The Contract requires that Georgia Kraft maintain a permanent record on the cord credit account regarding the amounts cut and paid for under the Contract. The Contract provides in paragraph 5 that the Scribner Decimal C Scale will be used in determining a cord by volume and sets forth conversion factors for determining entries into the cord credit account.
According to the Rhodes, they learned in April of 1986 that Georgia Kraft had abandoned the cord-volume measurement and had been using a weight measurement and then later learned that Georgia Kraft had not maintained a permanent record of the cord-credit account. After some communications between the parties the Rhodes notified Georgia Kraft that they considered the contract breached by Georgia Kraft. Georgia Kraft responded with a call for arbitration under a clause of the Contract.
The Rhodes then filed this action seeking to enjoin Georgia Kraft from cutting or removing timber under the contract and to declare the contract null and void. They also sought to enjoin any arbitration and to recover damages. Georgia Kraft denied any breach and contended that the Contract required the Rhodes to arbitrate. They also filed a counterclaim to recover the value of the wood paid for under the cord-credit account but not yet harvested. A hearing was held on August 19, 1986 on the Rhodes' request for a temporary restraining order; both sides were represented and the court granted the temporary relief and set an interlocutory hearing.
The second hearing took place on September 9, 1986; at the conclusion it was agreed that the August 19 order remain in effect until further order of the court. On December 8, 1986 the court entered an order concluding that Georgia Kraft had breached the Contract which gave the Rhodes the right to declare it voided. Under these circumstances the court held that the arbitration provision of the Contract did not apply and the sole remaining issues were the claims and counterclaim for damages. It was ordered that the temporary injunction be made permanent.
1. The appellant contends that the trial court erred in entering a permanent injunction after the interlocutory hearing because there was no order consolidating the issues as provided in OCGA § 9-11-65(a)(2). The general rule is that entering permanent relief after an interlocutory hearing is improper. Ward v. Process Control Corp., 247 Ga. 583, 277 S.E.2d 671 (1981); Miller v. Wells, 235 Ga. 411, 219 S.E.2d 751 (1975). However, when there is notice of an interlocutory injunction hearing, the court may determine the issues on their merits after the interlocutory hearing where there is no objection or where the parties have acquiesced. Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183(4), 336 S.E.2d 562 (1985); Wilkerson v. Chattahoochee Parks, Inc., 244 Ga. 472, 260 S.E.2d 867 (1979).
At the conclusion of the interlocutory hearing the trial court and counsel for each side discussed the issues then pending before the court. The court did inform counsel that he might rule on whether the contract had been breached as a matter of law based upon the evidence before him. Regency Club v. Stuckey, 253 Ga. 583(3), 324 S.E.2d 166 (1984). Under the circumstance we find no procedural error in the court entering a ruling on the merits of whether the contract was breached.
2. Appellant next contends that the court erred in ruling on the merits of whether the contract had been...
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...we must conclude that defendants agreed to have the trial court consider the propriety of permanent relief. Georgia Kraft Co. v. Rhodes, 257 Ga. 469, 471(1), 360 S.E.2d 595 (1987) (trial court may determine the issues on their merits after interlocutory hearing where there is no objection o......
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