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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Sunday, January 8, 2012

Contempt Is the Remedy to Enforce Injunctions regarding Easements

Parties to court proceedings involving private rights of way or trespass sometimes question the power of a judge to tell them to do something.  Sometimes people do not take the orders of a court seriously and act in a recalcitrant manner to test whether a judge will enforce his order.  However, a Georgia Superior Court Judge is one of the most powerful officials in Georgia and has the power to fine and incarcerate parties who do not violate his orders.

The means of enforcement of an equitable order in Georgia is through a petition for contempt.  Contempt is a legal proceeding filed to enforce the terms of an injunction or restraining order.  The remedy is invoked by filing a motion or new petition raising the issue of the violation of a prior order with a request that the court issue a new order to require compliance.  The injunction is Stage 1.  Contempt is Stage 2.  Most people do not get to State 2, but when they do, the result can be harsh.

A contempt proceeding can be either criminal or civil.
The difference between criminal and civil contempt depends on the purpose for which the power is exercised. Ensley v. Ensley, 239 Ga. 860, 861, 238 S.E.2d 920 (1977). “The distinction between the two is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151, 356 S.E.2d 202, cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987).

Alexander v. DeKalb County, 264 Ga. 362, 364, 444 S.E.2d 743, 745 (1994).

Contempt as a remedy can arise in different types of cases.  In a case involving a continuing trespass to real property that violates the legal title owner's rights, an injunction is often sought to force a party to honor the rights of the landowner.  An injunction may be all that is required provided the parties adhere to its terms.  Where they refuse to comply, the court turns to contempt to enforce its orders.

A contempt motion is a proper way to require a party to adhere to the terms of a prior order regarding easement rights to a road or private right of way.  Harvey v. Lindsey, 251 Ga. App. 387, 390, 554 S.E.2d 523, 526 (2001).  The court looks to the intent of the prior order in determining whether the parties have violated it. 

In a contempt proceeding, a court may interpret and clarify an existing order but may not modify the terms and obligations already set forth.2 To determine whether an order has been clarified, as opposed to being modified, the test is whether the new order is a reasonable clarification or so contrary to the apparent intent of the original order as to constitute a modification.3 The intent is found by looking at the content of the order and the context in which it was created.4

Ultimately, the court hearing a contempt motion can fine the party in violation until he complies with the prior order.  The court can enter an order of incarceration if the judge finds that the violation of the prior order was willful. Alexander, supra.  

A contempt proceeding involving roads, rights of way, streets, or easements can arise in a number of ways.  For example, a party ("A") may obtain an order restraining another person ("B") from interfering with his rights to access A's land over an easement across B's land.  If A or B disregard the terms and limitations of the order, the party seeking compliance can proceed by petition for contempt. So if B were to fail to allow A to travel over the path of an easement under the terms of an order issued by a Georgia Superior Court Judge, A could then ask the judge to hold B in contempt, and upon a finding that B did not comply with the order, the judge could fine B until B allows the access.  Upon a finding of a willful violation of the prior order, the judge could even incarcerate B.   

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