Stewart v. Johnson

• Decision Date: 09 March 2021
• Docket Number: A20A2104
• Citation: 856 S.E.2d 401,358 Ga.App. 813
• Parties: STEWART et al. v. JOHNSON et al.
• Court: Georgia Court of Appeals

358 Ga.App. 813

856 S.E.2d 401

STEWART et al.

v.JOHNSON et al.

A20A2104

Court of Appeals of Georgia.

March 9, 2021

Nick H. H. Stewart, Marie Sousa, Christine Proctor, James Cross, for Appellant.

John Paul McQuigg, Saint Simons Island, Earl Daniel Smith Jr., Nahunta, Tania Rachel Tuttle, Sarah Lovell Cook, Brook Gramm, for Appellee.

Pipkin, Judge.

This appeal arises from a land dispute. Nick H. H. Stewart, Marie Sousa, Christine Proctor, and James Cross (collectively "Appellants") filed their complaint on October 26, 2018 against Rusty Johnson, Corey Bessent, Chris Germano, Derwin Brooker, and Gail Brooker (collectively "Appellees").¹ Appellants’ complaint sought both damages and injunctive relief, alleging that Appellees interfered with their right to use both private and public roads that run through Appellees’ property and to have electric service established at their home. Appellants now present seven enumerations of error, challenging each of the seven orders issued by the trial court: (1) order denying Appellants’ motion for an interlocutory injunction; (2) order denying Appellants’ motion for default against the Johnsons; (3) order denying Appellants’ motion for summary judgment; (4) order granting the Johnsons’ partial motion to dismiss; (5) order dismissing claims of James Cross, Nick Stewart and all claims of punitive damages against the Brookers; (6) order granting the Brookers’ motion for leave of court to allow first amended answer and counterclaims; and (7) amended order granting the Brookers’ motion for leave of court.²

As a preliminary matter, we note that Appellants’ brief has failed to comply with this Court's rules in several respects. In particular, our rules require that Part One of Appellants’ brief "contain a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal; a citation of the parts of the record or transcript essential to a consideration of the errors; and a statement of the method by which each enumeration of error was preserved for consideration." See Court of Appeals Rule 25 (a) (1). Part One of Appellants’ brief does not contain a single citation to the record, nor does it identify how each enumerated error was preserved for consideration. Subsection (c) (2) (i) of Rule 25 requires that each enumerated error "be supported by specific reference to the record or transcript. In the absence of a specific reference, the Court will not search for and may not consider that enumeration." Subsection (a) (3) of this rule demands that Part Three of Appellants’ brief include argument and supporting authority for each issue presented in the brief. Instead, Part Three of Appellants’ brief contains some of what should have been included in Part One-allegations of fact and citations to the record. Appellants offer only a cursory argument in support of each enumeration of error and limited citations of authority.

"Because this Court is a court for the correction of errors, we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court." (Citation and punctuation omitted.) In the Interest of T. F. N. , 341 Ga. App. 247, 255 (2), 799 S.E.2d 591 (2017). Further, it is not the responsibility of this Court to search the record on behalf of a party to find evidence supporting their arguments, and "[i]n the absence of a specific reference [to the record or transcript] we may not consider that enumeration." Court of Appeals Rule 25 (c) (2) (i). Appellants’ "pro se status does not excuse [them] from compliance with the substantive and procedural requirements of the law, including the rules of this Court." Clemmons v. State , 340 Ga. App. 57, 58 (1), 796 S.E.2d 297 (2017). These rules are "designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional." (Citation and punctuation omitted.) Wright v. AFLAC, Inc. , 283 Ga. App. 890, 891 (1), 643 S.E.2d 233 (2007).

Appellants filed briefs in response to those filed by the Johnsons and the Brookers; the reply briefs present new arguments and citation of authority. However, "[a]ny enumeration of error which is not supported in the [principle] brief by citation of authority or argument may be deemed abandoned ... and we do not consider arguments that are raised for the first rime in a reply brief." (Citation and punctuation omitted.) Vann v. Finley , 313 Ga. App. 153, 154, n.2, 721 S.E.2d 156 (2011). While, we will exercise our discretion and endeavor to rule on the merits of this appeal where possible, if we miss something in the record or misconstrue an argument due to the non-conforming brief, the responsibility rests with Appellants. See Clemmons , 340 Ga. App. at 58 (1), 796 S.E.2d 297 ; Biggins v. State , 322 Ga. App. 286, 288 (1), 744 S.E.2d 811 (2013).

Appellants Marie Sousa and Christine Proctor are daughter and mother, and jointly own land located in Land Lot 28, Second Land District of Brantley County, Georgia, containing 5.366 acres ("Sousa Property"). Appellant Nick H. H. Stewart is married to Sousa and is Proctor's son-in-law. Appellant James Cross acquired property from the Johnsons and conveyed a portion to Sousa and Proctor. Appellees Derwin Brooker and Gail Brooker are husband and wife and own property adjoining the Sousa Property (the "Brooker Property"). Rusty Johnson, Corey Bessent, and Chris Germano own property adjoining the Sousa Property and the Brooker Property. Appellants allege that Appellees have interfered with their ability to have electric power established at their house located on the Sousa Property. Appellants also alleged below that Appellees interfered with their enjoyment of Brantley County Public Roads 110 and 112³ and a 30 foot private road.

1. We consider Appellants’ challenge to the trial court's denial of their request for an interlocutory injunction.

Appellants filed a motion for interlocutory injunction seeking to have the Johnsons enjoined from preventing Appellants’ electric provider from installing power lines along Brantley County Public Road 112 ("Road 112") to connect to Appellants’ house and to enjoin the Johnsons from interfering with Appellants’ land survey along Road 112.⁴ Following an evidentiary hearing, the trial court denied the injunction, concluding that Appellants had failed to satisfy any of the four factors that the movant must demonstrate to be entitled to an interlocutory injunction; of note, the trial court concluded that Appellants had failed to establish that Road 112 was, in fact, a county-owned road which would have authorized public use.

"The grant or denial of an interlocutory injunction will not be reversed on appeal unless the trial court made an error of law that contributed to the decision, there was no evidence on an element essential to relief, or the court manifestly abused its discretion." City of Waycross v. Pierce County Bd. of Comms. , 300 Ga. 109, 111 (1), 793 S.E.2d 389 (2016). An interlocutory injunction is an extraordinary remedy designed "to maintain the status quo of the parties pending final adjudication of the case and should not be granted except in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without a remedy." Gerguis v. Statesboro HMA Med. Group, LLC , 331 Ga. App. 867, 868, 772 S.E.2d 227 (2015). In order to obtain an interlocutory injunction, a movant must show that

(1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of her claims at trial; and (4) granting the interlocutory injunction will not disserve the public interest.

SRB Investment Svcs. LLLP v. Branch Banking & Trust Co. , 289 Ga. 1, 5 (3), 709 S.E.2d 267 (2011). There was a full evidentiary hearing on Appellants’ motion for interlocutory injunction, but much of the evidence presented by Appellants was not germane to the interlocutory injunction.⁵ The record shows that, based on the previously filed deeds and surveys, Appellants unilaterally decided that the current boundaries for the Sousa Property and adjoining properties are incorrect and/or that the roadways at issue are not accurately identified on the most recently recorded land surveys. While Appellants alleged that the Johnsons "made threats against" Appellants and their electric supplier we can locate no evidence in the record to support this allegation, and Appellants point to none. Moreover, Sousa acknowledged, at the conclusion of the hearing, that Appellants did not prove that Road 112 was a public roadway. In denying injunctive relief, the trial court found that Appellants did not identify "any source of injury" as they have ingress and egress to their property by an alternative roadway. The trial court further ruled that Appellants failed to establish that they "have a right to cross the property of [Appellees]. As stated previously, there has been no evidence establishing the existence or location of the purported County Road 112. The rights of [Appellees] to enjoy their private property serves the public interest, particularly since [Appellants] have not and cannot show that necessity to such exists." Appellants’ brief merely restates legal conclusions and the language contained in OCGA § 9-5-1,⁶ offering no explanation as to how they have a legally protected right to access the roadways at issue or how they will suffer irreparable harm. Appellants point to no facts in the record or cite any authority, and we find none to suggest that the trial court abused its discretion in denying the interlocutory injunction.

2. Appellants contend that the trial court erred in denying their motion for default judgment against the Johnsons. "On appeal, we review a trial...