Ga. Supreme Court rules in favor of couple in suit against EMC

ATLANTA - The state Supreme Court has partially reversed a lower court ruling, clearing the way for a couple to contnue their suit against Amicola EMC over some tree-cutting.

Buddie and Margaret Daniel say the EMC cut down dozens of trees on their property in Pickens County. Amicola EMC contended that it has an easement for the work and also that the statue of lilmitations had run out and, under state law, the suit should not proceed.

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SUMMARY OF THE SUPREME COURT'S RULING POSTED ON THE COURT'S WEBSITE:

DANIEL ET AL. V. AMICALOLA ELECTRIC MEMBERSHIP CORPORATION
(S11A0019)

The Georgia Supreme Court has partially reversed a lower court's judgment, ruling that a couple still has the right to sue an Electric Membership Corporation (EMC) for ruining vegetation on their property in rural Georgia after chopping down dozens of trees.

The Amicalola EMC had argued that under state law, a one-year statute of limitations had run out and the lawsuit was therefore barred. But in today's unanimous opinion, Justice David Nahmias writes that the 2008 destruction of the vegetation  was new, and so that claim is clearly not time-barred. Accordingly
the trial court erred in granting summary judgment to [the EMC] on the 2008 claims.

The case involves Buddie and Margaret Daniel who, in May 2006, bought more than 26 acres of land in rural Pickens County. Prior to the purchase, they had a title search performed, walked the property and found no evidence of a utility  easement, which is a utility's right to use someone's property to run electrical lines through it. In April 2007, the Amicalola EMC, which provides electric service to rural North Georgia, came onto the Daniels' property and cut
down about 40 trees. The clear-cutting exposed a standing utility pole and a second pole lying on the ground. The Daniels contacted an EMC manager who said the company did not have an easement through their property and would do no further work there.

Despite his assurances, in April 2007, the Daniels' lawyer wrote the EMC's attorney, demanding that the EMC cease and desist. In May 2008, the EMC returned and sprayed the cleared land with herbicide, killing the vegetation that had begun to grow back. The Daniels' attorney again wrote the EMC, asking it to
confirm in writing that it would not trespass again. The next day, the EMC's attorney responded that the EMC had had an easement on the Daniels' property  for more than 40 years.

Two months later in July 2008, the Daniels sued the EMC, seeking damages for trespass, attorney?s fees and a declaration that the EMC had no easement on their property. The EMC responded that it had a valid utility easement crossing the Daniels' property and the Daniels were barred from filing a lawsuit because the one-year statute of limitations in Official Code of Georgia § 46-3-204 had run out. That law states that lawsuits against any EMC growing out of
the acquisition of rights of way or easements& shall be barred at the end of 12 months from the date of the accrual of such cause of action.

The Daniels disputed the existence of the easement, argued that the statute of limitations had not run out because they filed suit two months after the
EMC told them it did have an easement after earlier telling them it did not, and asserted that the statute was unconstitutionally vague. In June 2010 the trial court ruled in favor of the EMC, and the Daniels then appealed to the state Supreme Court.

Today's opinion says that if the EMC  has a valid easement permitting its activities on the Daniels' land, then there could be no trespass or conversion in 2007 or 2008. However, it is undisputed that [the Amicalola EMC] did not have a written easement, and there is a clear dispute in the evidence regarding whether [the EMC] had a prescriptive easement before the 2007 entry. Thus, summary judgment was clearly inappropriate on the parties' competing
easement claims . (A summary judgment is granted when the court determines there is no need for a trial because there is no genuine debate over the facts and the person requesting the judgment is entitled to it based on the law.)

As to the statute of limitations, the Daniels argued the EMC defrauded them by claiming that it had no easement and no plan to enter the property again, following the 2007 clearing of the trees. However, there is no evidence the EMC misled them, the Court finds, and if the Daniels wanted payment of damages from the EMC for clear-cutting their property, they had to sue within a year.  They did not, and thus the undisputed facts show that the Daniels? trespass and conversion claims for the 2007 incident were time-barred under the law. But the 2008 spraying of the vegetation represented  a new intrusion, and the Daniels sued promptly to challenge it within the statute of limitations.

Regarding the constitutional challenge, the state law  is clear as to its meaning and application, the high court finds.  Accordingly, we affirm the trial court?s judgment upholding the constitutionality of § 46-3-204.
Attorneys for Appellants (Daniels): Jeffrey Horst, Troy Covington
Attorneys for Appellee (EMC): Henry Tharpe, Jr., Rebecca Gober