Georgia Power Co. v. 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 [332] 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 Co. Bank, 248 Ga. 407, 408 (284 SE2d 6) (1981), quoting 3B Moore’s Federal Practice 25.04[3] (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, Nat. Resources Defense Counsel v. Texaco Refining &c., 2 F3d 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.” Ga. Mental Health Institute v. Brady, 263 Ga. 591, 593 (436 SE2d 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 [333] 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.