Georgia Power Co. v. Hunt, S95A1820

• Decision Date: 12 February 1996
• Docket Number: No. S95A1820,S95A1820
• Citation: 266 Ga. 331,466 S.E.2d 846
• Parties: GEORGIA POWER COMPANY v. HUNT.
• Court: Georgia Supreme Court

Page 846

466 S.E.2d 846

266 Ga. 331

GEORGIA POWER COMPANY v. HUNT.

No. S95A1820.

Supreme Court of Georgia.

Feb. 12, 1996.

Reconsideration Denied March 7, 1996.

Injunction. Tift County Superior Trial Judge: John D. Crosby.

John R. Reinhardt, Reinhardt, Whitley & Wilmot, P.C., Tifton, Donald W. Janney, Troutman Sanders, Atlanta, for Georgia Power Co.

Roy Benton Allen, Jr., Allen, Kelley & Sowell, Tifton, for Hunt.

HINES, Justice.

Georgia Power seeks a mandatory injunction ordering Hunt to remove light poles which allegedly interfere with its rights under two easements. Granted in 1936 and 1939, the easements provide Georgia Power with a 200-foot right-of-way across a parcel of property formerly owned by Hunt. Georgia Power asserts that the poles create a dangerous condition likely to interfere with transmission lines.

On December 8, 1994, the trial court conducted an evidentiary hearing on the request for interlocutory injunctive relief. Three weeks later, Hunt transferred the property to a third party. Georgia Power did not move to join the transferee as a party defendant, nor did it seek to substitute the transferee for Hunt. On July 12, 1995, the trial court ordered that issues of fact be resolved by a jury before the court would determine whether or not Georgia Power was entitled to interlocutory relief.

Georgia Power appeals, asserting that the trial court's order constitutes a denial of its request for interlocutory injunctive relief. Hunt moves to dismiss on the grounds that the order from which Georgia Power appeals is not directly appealable pursuant to OCGA § 5-6-34(a), and that the injunctive relief requested would be of no benefit to Georgia Power because he no longer owns an interest in the property.

1. The trial court's decision to defer ruling until a jury determines issues of fact effectively denies Georgia Power's request for interlocutory injunctive relief. It is equivalent to a refusal to grant an application for an interlocutory injunction, and is therefore directly appealable. OCGA § 5-6-34(a)(4).

2. OCGA § 9-11-25(c) provides for the automatic continuation of an action where an interest in the subject of the action is transferred:

In case of any transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

However, this Court has determined that this statute "does not determine what actions shall survive the ... transfer of interest by a party; it deals only with the mechanics of substitution in an action which does survive under the applicable substantive law." Goodyear v. Trust Company Bank, 248 Ga. 407, 408, 284 S.E.2d 6 (1981), quoting 3B Moore's Federal Practice 25.04 (1980). Consequently, in analyzing whether a case may be automatically continued by operation of OCGA § 9-11-25(c), it must first be determined if the action is of the type which survives a transfer of interest.

Georgia Power notes that Rule 25(c) of the Federal Rules of Civil Procedure is nearly identical to OCGA § 9-11-25(c), and cites in support of continuing the action against Hunt Natural Resources Defense Council v. Texaco Refining & Marketing, Inc., 2 F.3d 493, (3rd Cir.1993), which involved a transfer of interest and application of the federal rule. In Texaco it was determined that "an injunction against the named party will bind all successors in interest and assigns." Texaco, supra at 506. However, in that case, the plaintiff sought a prohibitive injunction to prevent violations of a pollution discharge permit.

Here, Georgia Power seeks a mandatory injunction which, if granted, would require Hunt, as the named defendant, to enter the land of another and remove fixtures. In effect, the grant of this mandatory injunctive relief against Hunt, with respect to property he no longer owns, would be to order him to commit potentially unlawful acts. To apply OCGA § 9-11-25(c) to result in such an untenable situation would violate the cardinal rule that a statute must not be construed to "result in unreasonable consequences and must square with common sense and sound reasoning." Georgia Mental Health Institute v. Brady, 263 Ga. 591, 593, 436 S.E.2d 219 (1993). OCGA § 9-11-25(c) provides for the continuation of the action against the original party where a transfer of interest occurs, but requires that a party move to remove the transferor through substitution. Absent such a motion, the transferor remains a named party and thus bound by the judgment of the trial court, regardless of whether the real party in interest is likewise bound. Accordingly, this action which seeks to compel a party to do an affirmative act in regard to property in which he no longer holds an interest, may not be continued, absent substitution of parties as provided in OCGA § 9-11-25(c). Since Georgia Power failed to move to substitute parties during the nearly seven months between transfer of the property and the trial court's decision, the action may not be continued against Hunt.

Georgia Power urges that unless it be allowed to continue this action, Hunt could orchestrate a perpetual series of transfers designed to frustrate and indefinitely preclude a determination of this matter on the merits. However, such an allegation is mere speculation. Georgia Power has in no way established that Hunt's transfer of the property was fraudulent, or that any such scheme exists. Moreover, should Georgia Power institute an action against Hunt's transferee, who subsequently transfers the property, Georgia Power may move to substitute parties as provided in OCGA § 9-11-25(c).

Appeal dismissed.

HUNSTEIN, J., and Judge ALBERT PICKETT concur.

SEARS, J., concurs specially.

BENHAM, C.J., FLETCHER, P.J., and CARLEY, J., dissent.

THOMPSON, J., disqualified.

SEARS, Justice, concurring specially.

I disagree with the holding in Division 1 of the majority opinion, and would dismiss the appeal on the ground that the order appealed by Georgia Power was not appealable under OCGA § 5-6-34(a)(4). Because the majority dismisses the appeal on an unrelated basis, see Division 2 of the majority opinion, I specially concur in the judgment of dismissal. I note, however, that if the order in question were appealable under § 5-6-34(a)(4), and if I were therefore to reach the merits of the issue on which the majority dismisses the appeal, I would join Justice Carley's dissent.

In Division 1, the majority holds that the trial court's "decision to defer ruling until a jury determines issues of fact effectively denies Georgia Power's request for interlocutory injunctive relief," ¹ and "is therefore directly appealable." ² For the reasons that follow, I disagree with this holding.

The federal courts have addressed the issue raised by Division 1 on numerous occasions. Under 28 U.S.C. § 1292(a), interlocutory orders "granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions" are appealable. Federal courts have interpreted this statute to mean that if an interlocutory order expressly grants or denies a request for injunctive relief, the losing party has a right to direct appeal, but that if the interlocutory order does not do so, the losing party only has the right to direct appeal if the litigant can show that the interlocutory order has the practical effect of granting or denying an injunction; that the interlocutory order might have serious, perhaps irreparable, consequences; and that the order can be effectively challenged only by immediate appeal. ³ These latter requirements are intended to preserve the limited exception to the final judgment rule created by 28 U.S.C. § 1292(a) and to further the general policy against piecemeal appellate review. ⁴

I would adopt this analysis for appeals under OCGA § 5-6-34(a)(4). Thus, in this case, as the trial court's order providing that issues of fact would be presented to a jury did not expressly deny Georgia Power's request for an injunction, I would hold that Georgia Power must satisfy the three requirements set forth above to obtain the right to an immediate appeal. Further, I do not believe that Georgia Power can meet these requirements, and I would therefore dismiss the appeal.

CARLEY, Justice, dissenting.

In this case, Georgia Power Company (Georgia Power) sought injunctive relief as to the removal of lightpoles which allegedly interfered with its easements across property owned by George Hunt. Georgia Power moved for an interlocutory injunction and, after the hearing, Hunt transferred his property to a third party. Thereafter, Georgia Power neither moved to join the transferee as a party-defendant nor moved to substitute the transferee as the party-defendant. When the trial court subsequently deferred its ruling on the motion for an interlocutory injunction until issues of fact were resolved by a jury, Georgia Power filed this direct appeal. The majority holds that the trial court's order is directly appealable, but nevertheless concludes that Georgia Power's appeal must be dismissed because of Hunt's transfer of the property. I agree with the majority that the trial court's order is directly appealable, but I cannot concur with the dismissal of the appeal on the basis of the transfer of the property.

OCGA § 9-11-25(c)...