Turner v. Flournoy
Decision Date | 22 March 2004 |
Docket Number | No. S03A1730.,S03A1730. |
Citation | 277 Ga. 683,594 S.E.2d 359 |
Parties | TURNER et al. v. FLOURNOY. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Alston & Bird, LLP, Scott E. Hitch, Atlanta, Denney, Pease, Allison & Kirk, Ray L. Allison, Jaimie B. DeLoach, Clifton C. Fay, Columbus, for appellants.
Buchanan & Land, Jerry A. Buchanan, Columbus, for appellee.
The question for decision in this case is whether the trial court abused its discretion by enjoining the development of a subdivision. We conclude that, in the absence of transcripts of hearings held below, the injunction must stand.
1. The trial court held hearings in this case on May 4, 2001, March 22, 2002, October 9, 2002, December 17, 2002, and June 3, 2003. Following the last hearing, the trial court entered an order which reads, in pertinent part, as follows:
The trial court's order makes it clear that, in formulating the injunction, it relied on evidence and argument presented at a number of proceedings, including the December 17 site inspection; however, we do not have transcripts of all the proceedings.
The burden is upon the party asserting error to show error by the record. And where, as here, the alleged error concerns the propriety of injunctive relief, the party asserting error must include transcripts of the evidence and proceedings. In the absence of such transcripts, we presume that the evidence supports the issuance of the injunction. See Kirkendall v. Decker, 271 Ga. 189, 191, 516 S.E.2d 73 (1999).
Of course, customarily, transcripts are not made at a view. That is because, ordinarily, the factfinder simply views the scene in order to gain a frame of reference. See generally Hensley v. Henry, 246 Ga.App. 417, 421, 541 S.E.2d 398 (2000), in which the court observes that there are at least two types of views, the "scene view" and the "evidentiary view." In this case, however, the trial court did more than view the scene—it questioned the parties and witnesses. And it relied upon the information gleaned at the scene, as well as the other hearings, to fashion the injunction. This was not happenstance. At the October 9 hearing at which the trial court concluded that a view would be in order, it informed the parties that it intended to question the engineers and representatives of the parties; and it added: "I'll leave it to you folks to, as to how you get the court reporter out there taking all this stuff down."
Fairfield Corp. No. 1 v. Thornton, 258 Ga. 805, 374 S.E.2d 727 (1989), upon which the dissent relies to support the proposition that the injunction is overly broad, is inapposite. In Fairfield, unlike the case at bar, transcripts were included in the record. Thus, the Fairfield court had enough information before it to determine that the injunction issued in that case was greater than necessary to protect the plaintiff. We have no information whatsoever. The facts and circumstances of this case were presented to the trial court, but not recorded for review. We do not know what evidence was presented. Thus, it cannot be said that the injunction is too broad.
2. The dissent takes the position that the injunction is interlocutory and that we should direct the trial court to modify the injunction by striking the words "permanent" and "permanently" from the order. This we will not do.
Prior to the last hearing, counsel for defendant Turner opined that one of the issues for decision at the hearing was whether the development should be "permanently enjoined." Thereafter, at the conclusion of the hearing, the court informed the parties that it intended to enter a "permanent" injunction. Neither defendant raised an objection when the court made that pronouncement. Moreover, after the trial court entered its written order permanently enjoining defendants, neither defendant complained that it had not been given notice of a final hearing, or that the order should not have been permanent. Under these circumstances, 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) ( ). See also United Companies Lending Corp. v. Peacock, 267 Ga. 145, 146, 475 S.E.2d 601 (1996) ( ).
Our conclusion in this regard is buttressed by the fact that neither defendant assigns error to the characterization of the injunction as permanent, and neither defendant asserts that the injunction is interlocutory. In fact, in their briefs, both defendants consistently describe the injunction as "permanent." Inasmuch as defendants do not assert that the injunction was anything other than permanent, this Court need not, and should not, come along now and call the injunction interlocutory. It is not the function of this Court to advocate or advance positions not advanced by the parties. With rare exceptions,1 this Court, like all appellate courts, should decide the issues presented by the parties, as the parties present them. When we do otherwise, when we decide an issue sua sponte, we invite error because the issue has not been fleshed out fully; it has not been researched, briefed and argued by the parties. Moreover, the parties are blind-sided when an appellate court reaches an issue on its own motion. They have no inkling that the court even thought about such an issue until they receive and read the court's opinion. That is not fair.2
The issue the dissent would have us decide in this case—whether the injunction is permanent or interlocutory—was not argued below and has not been raised by the parties on appeal. Under these circumstances, it would be improper for this Court to decide this issue on its own motion.
3. If this issue were before the Court, we would not be so quick to label the injunction "interlocutory." The trial court's injunction can be viewed as being permanent even though it leaves the door open for development of the subdivision if defendants present a plan that will protect the interests of plaintiff. A permanent injunction is not rendered interlocutory simply because it has flexible or conditional features. See generally Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970); Dobbs, Handbook on the Law of Remedies, § 5.7(3) (2nd ed.1993), p. 525. As this Court has said: "A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact, and interlocutory as to its mode of execution." Moody v. Muscogee Mfg. Co., 134 Ga. 721(2), 68 S.E. 604 (1910). Such a decree is, nevertheless, permanent. Id.; Hill v. Paluzzi, 261 Ga.App. 123, 127, 581 S.E.2d 730 (2003).
Judgment affirmed.
All the Justices concur, except FLETCHER, C.J., HUNSTEIN and CARLEY, JJ., who dissent.
While I cannot agree that the trial court's judgment should be affirmed without condition, I believe that if the judgment is...
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