Turner v. Flournoy , 277 Ga. 683 ( 2004 )

Thompson, Justice.

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 plaintiff filed a verified complaint, seeking injunctive relief with regard to the attempt by the defendant Columbus-Muscogee County Consolidated Government to issue a permit for, and the attempt by the defendants Turner and Moore to begin construction on a subdivision project known or to be known as Fulton Plantation. A hearing was held ... on Friday, May 4, 2001. . . [and] the court entered a temporary restraining order, pending further investigation by the U. S. Army Corps of Engineers and counsel and experts for the various parties. Thereafter, this court has held several hearings on the matter, and has heard testimony and argument of counsel regarding the matter on several occasions, including March 22, 2002, and October 9, 2002. At the October 9, 2002 hearing, the court concluded that a site visit would be helpful to the court in understanding the facts and issues. On December 17, 2002, the court conducted a site inspection, attended by the undersigned judge . . . and all interested parties and counsel. The court asked questions of and discussed the issues with the various parties in attendance at said site inspection, including the plaintiff John Flournoy, and the defendants Ronnie Turner and Tom Moore, and representatives of the defendant City of Columbus, including representatives of the City Engineering Department and the County Health Department. On June 3, 2003, the court conducted another hearing on the matter, and heard argument of counsel for all parties.

Upon consideration of argument of counsel, and all facts and evidence in the record, and upon consideration of information gathered by the court at the site visit, the court has concluded that the temporary injunction . . . should be made permanent, until such time as the defendants present to this court an engineered plan that satisfies the court that appropriate safeguards will be in place to protect the property of plaintiff.

It is therefore considered, ordered and adjudged that, pending further order of this court, the defendant Columbus-Muscogee County Consolidated Government is permanently enjoined from issuing any ground disturbance permit, land development permit, or other permits regarding the proposed Fulton Plantation Subdivision.

It is further considered, ordered and adjudged that, pending further order of this court, the defendants Turner and Moore are permanently enjoined from undertaking any development or ground disturbance activities on the land that is the subject matter of this action, to wit: the proposed Fulton Plantation Subdivision.

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 record does contain transcripts of the hearings held on October 9, 2002, and June 3, 2003. The trial court heard the arguments of counsel at those hearings; but evidence was not presented.)

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 SE2d 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 SE2d 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 SE2d 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 Fair-field 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 SE2d 595) (1987) (trial court may determine the issues on their merits after interlocutory hearing where there is no objection or where the parties have acquiesced). See also United Companies Lending Corp. v. Peacock, 267 Ga. 145, 146 (475 SE2d 601) (1996) (in a proceeding seeking an interlocutory injunction, trial court was authorized to issue a permanent injunction if it was authorized by the evidence presented at trial).

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., 257 NE2d 870 (26 NY2d 219) (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 SE 604) (1910). Such a decree is, nevertheless, permanent. Id.; Hill v. Paluzzi, 261 Ga. App. 123, 127 (581 SE2d 730) (2003).

Judgment affirmed.

All the Justices concur, except Fletcher, C. J, Hunstein and Carley, JJ, who dissent.

1 See, e.g., Lackey v. Lackey, 216 Ga. 177 (115 SE2d 565) (1960) (appellate court will sua sponte inquire into jurisdiction of lower court); Bond v. Ray, 207 Ga. 559 (63 SE2d 399) (1951) (it is the duty of the court to inquire into its jurisdiction on its own motion).

2 At the very least, the parties should be given an opportunity to brief an issue which this Court decides sua sponte.