                               THIRD DIVISION
                               DILLARD, P. J.,
                            GOBEIL and HODGES, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     March 27, 2020




In the Court of Appeals of Georgia
 A19A2318. COWART v. GEORGIA POWER COMPANY.

      HODGES, Judge.

      This appeal presents the latest chapter in an over 15-years-long dispute

between Christopher H. Cowart d/b/a Cowart Tree Experts and Georgia Power

Company. Georgia Power successfully petitioned for contempt against Cowart as a

result of the manner in which he operated his business on a Georgia Power easement

containing a highly charged electric transmission line. Although Cowart does not

dispute the finding of contempt, he appeals the trial court’s order, contending (1) the

trial court impermissibly modified prior orders through a contempt proceeding; and

(2) the trial court erred by imposing impermissible criminal contempt sanctions that

did not comply with statutory limitations. This Court, however, cannot address the

merits of these enumerations because we cannot determine from the state of the
record whether we have subject matter jurisdiction. To that end, the trial court needs

to first determine whether Georgia Power properly filed a motion for contempt or

impermissibly attempted to initiate a new civil action. Accordingly, we vacate the

trial court’s order and remand with direction.

      To reach our determination on jurisdiction, we must first review the long and

fraught history of the dispute between Georgia Power and Cowart that culminated in

the order on appeal. Georgia Power operates electric transmission lines on its 100-

foot-wide easement which runs through Cowart’s subsequently obtained property.

The simultaneous operation of these transmission lines and Cowart’s business has

brought the parties to court multiple times.

      In 2002, Georgia Power sued Cowart seeking a restraining order and injunction

to prevent Cowart from encroaching and obstructing its easement (the “2002

Action”). This lawsuit resulted in an order in 2002 (the “2002 Order”) which

provided, in part

      [Cowart] shall remove from the area of the 100 foot right-of-way
      easement area belonging to [Georgia Power] all equipment, structures,
      obstruction, debris, logs, trees, stacks of material, and other items which
      have been placed by [Cowart] on the right-of-way-easement of [Georgia
      Power.] Except as specifically agreed to by [Georgia Power] in writing,
      this Court, hereby enjoins [Cowart] from placing any brush, operating

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      any machinery, recycled materials, inventory, bags, piles of material,
      equipment, trees, logs, inventory of any kind or other obstruction on the
      100 foot wide easement area[. Cowart] is further enjoined from blocking
      or obstructing the 100-foot wide easement area of [Georgia Pacific]


      The record before us on appeal does not include all of the documents and

proceedings from the 2002 Action. After the entry of the 2002 Order, the parties

required further court intervention. In 2003, Georgia Power petitioned for contempt,

alleging that Cowart continued to dangerously operate equipment in the right of way,

continued to place obstructions in the right of way, and undermined the tower that

supports the transmission line by grading the right of way area underneath the line.

The trial court conducted an evidentiary hearing, the transcript of which is not

included in the record on appeal, at which the trial court found that Georgia Power

presented evidence that supported its allegations, including pictures depicting heavy

equipment operating dangerously close to the transmission line, compromise of the

transmission tower due to excavation, large logs swinging dangerously close to the

transmission line, and debris and other items obstructing the easement. The trial court

also heard testimony about a contractor of Cowart making contact with Georgia

Power’s conductors as well as testimony that Cowart’s operational practices created

a risk of severe injury or death. Accordingly, the trial court found that “a substantial

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threat to the health and safety of employees, visitors, and others exist[s] as a result of

the operations of [Cowart] on the right of way easement of [Georgia Power.]”

       As a result of Georgia Power’s contempt petition, the trial court entered another

order in 2005 (the “2005 Order”). The trial court ordered the parties to enter an

Encroachment Agreement that the parties had negotiated, and it incorporated such

agreement into its order.1 The 2005 Order more specifically identified the restrictions

and prohibitions on Cowart’s conduct in Georgia Power’s easement.

       Following entry of the 2005 Order, Georgia Power again petitioned for

contempt against Cowart. This petition resulted in the trial court’s entry of a 2006

order in the 2002 Action (the “2006 Final Consent Order”) which, among other

things, appointed a special master to observe Cowart’s compliance with the court’s

prior order and to report violations to the trial court. It is unclear whether the entirety

of the proceedings in 2005 and 2006 are before us in the record on appeal.

       In 2012, Georgia Power filed a document titled “PETITION FOR CONTEMPT

AND IMPOSITION OF SANCTIONS” which sought a finding of contempt of the

2005 Order entered in the 2002 Action. This petition was assigned a new civil action


       1
       The record does not contain an executed or file-stamped version of this
agreement, but the parties do not dispute its existence.

                                            4
number different from the 2002 Action. Along with this petition, Georgia Power

served a summons which identified the document it was filing as a “complaint” which

would subject Cowart to default if not answered within 30 days. It also submitted a

case information sheet which, rather than selecting the box “Non-Domestic

Contempt”, selected the box for “Equity[.]”

      The relief requested by Georgia Power in its 2012 petition included Cowart’s

incarceration, fines in an amount not less than $10,000 per violation, an award of

attorney fees and expenses, an order to permanently remove obstructions from the

easement, for the trial court to “[f]ormulate a design for improvements to the right of

way so that Defendant Cowart is not able to violate the Court’s order and is

physically restrained from contempt including the construction of gates and fencing

at [Cowart’s] expense[,]” as well as a request that the trial court terminate the

previously entered Encroachment Agreement.

      After this filing by Georgia Power, the special master issued reports in the 2012

Action finding violations of the 2005 Order, specifically materials being

impermissibly stored in the easement. Georgia Power subsequently moved for an

emergency hearing on its contempt petition in the 2012 Action as a result of an event

on August 15, 2012. On that day, a third-party contractor of Cowart entered Georgia

                                          5
Power’s easement with a truck and raised a mounted boom into the energized field

surrounding the transmission line. Electricity arced from the line to the boom, causing

the front two tires of the truck to blow out. Fortunately, the driver of the vehicle was

unharmed. This event caused a regional power outage which resulted in traffic

problems, interrupted the dispatch of emergency services, as well as regional security

systems failures. As a result of an emergency hearing, and upon the agreement of the

parties, the trial court entered an order which, among other things, required Cowart

to hire an electrical transmission expert to monitor his compliance with the 2005

Order. In 2015, Georgia Power filed another emergency motion for contempt in the

2012 Action, alleging that Cowart’s workers were again observed raising a basket lift

and operating other heavy equipment under the transmission line.

      Ultimately, in 2018, the trial court entered an order in the 2012 Action finding

Cowart in contempt of the 2005 Order (the “2018 Order”). In the 2018 Order the trial

court reaffirmed the prior findings of fact, conclusions of law, and injunctions

contained in its prior orders entered in the 2002 Action. The trial court found that

Cowart “repeatedly and intentionally violated the Orders of this Court and continues

based on the latest evidence to violate the injunctions of this Court designed to

protect the property of [Georgia Power] and the lives of all that come onto the

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easement of Georgia Power.” After recounting the numerous violations it found, the

trial court stated “[e]ach of these violations creates conditions that are extremely

dangerous and likely to cause irreparable injuries if they are allowed to continue.”

The trial court concluded that “[t]he failure of Mr. Cowart to honor the instructions

of the Court, makes it necessary for a structure to be built to restrain his activities so

that his business operation is physically restrained from trespassing on the property

rights of [Georgia Power].”

      As a result of its finding of contempt, the trial court specifically ordered as

follows:

      [Cowart] is ordered to install all safety measures shown on the remedial
      drawing and site plan attached hereto as Exhibit “A” within forty-five
      (45) days of the filing of this Order. [Cowart] shall be allowed to
      continue currently-allowed operation for forty-five (45) days during the
      installation of said safety measures. In the event that said measures are
      not completely installed within the forty-five (45) day period outlined
      above, [Cowart] is ordered to cease all activities on [Georgia Power’s]
      transmission line easement until installation of the safety measures is
      completed. This Court incorporates the legal conclusions expressed in
      the [2005 Order] as the governing law justifying this remedy.


      Should [Cowart] not meet the forty-five (45) day deadline imposed
      above, subsequent to his installation of such safety measures, [Cowart]


                                            7
      shall be allowed to resume activity within the easement area that is in
      compliance with the prior orders and any written Encroachment
      Agreements between the parties.


(Footnote omitted.)2 Cowart timely appeals from the 2018 Order, arguing that (1) the

trial court impermissibly modified prior orders through a contempt proceeding; and

(2) the trial court erred by imposing impermissible criminal contempt sanctions that

did not comply with statutory limitations.

      “We do not reach [Cowart’s] arguments, however, because . . . the trial court’s

order that [Cowart] is challenging must be [vacated] for other reasons.” Reece v.

Smith, 292 Ga. App. 875, 878 (3) (665 SE2d 918) (2008). Our inability to address the

merits of Cowart’s appeal stem from this Court’s “duty to inquire into its jurisdiction

to entertain each appeal.” Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d

801) (2012). “Parties may not give jurisdiction to a court by consent, express or

implied, as to the person or subject matter of an action.” OCGA § 15-1-2.

Accordingly, although the parties do not raise the issue on appeal,”subject matter




      2
       The trial court also awarded Georgia Power a money judgment of
$187,998.99.

                                          8
jurisdiction has a unique attribute. It can never be waived.” (Citation and punctuation

omitted.) Bolden v. Barton, 278 Ga. 831, 832 (1) (607 SE2d 889) (2005). Indeed,

      [w]hen a court has before it a matter where it has no jurisdiction of the
      subject matter, no legal judgment can be rendered except one of
      dismissal; and when this court discovers from the record on appeal that
      a judgment has been rendered by a court having no jurisdiction of the
      subject matter, it will of its own motion reverse the judgment.


(Citations and punctuation omitted.) In the Interest of A. D. B., 232 Ga. App. 697,

697-698 (503 SE2d 596) (1998).

      Here, it does not appear from the record that the trial court considered whether

the 2012 Action was properly filed. To the extent Georgia Power attempted to initiate

a new civil action by its contempt petition, such was improper because

      [i]t is axiomatic that an action for contempt is ancillary to the primary
      action and, as such, is not a pleading but a motion. A motion for
      contempt is not tantamount to the filing of a complaint. An application
      for contempt does not come within the definition of a pleading.


(Citations and punctuation omitted.) Phillips v. Brown, 263 Ga. 50, 51 (2) (426 SE2d

866) (1993); see also Opatut v. Guest Pond Club, 254 Ga. 258 (1) (327 SE2d 487)

(1985) (“an application for contempt may not, standing alone, serve to commence a

civil action for damages as it is not a complaint”) (citations and punctuation omitted);

                                           9
OCGA § 9-11-7 (defining pleadings). If the trial court, with the benefit of the entirety

of the filings during this lengthy dispute, including the documents filed along with

the petition in 2012, determines that Georgia Power’s filing was an attempt to

improperly commence a new civil action, then it must find that it lacks subject matter

jurisdiction to hear the matter and its finding of contempt cannot stand. McNeal v.

McNeal, 233 Ga. 836 (213 SE2d 845) (1975). If, however, the trial court determines

that Georgia Power properly filed a motion which was merely assigned a 2012 case

number by the clerk of court, then subject matter jurisdiction exists and this Court

may subsequently consider the merits of the appeal. See Brown v. King, 266 Ga. 890,

891 (2) (472 SE2d 65) (1996) (“[b]y our decision today, we do not intend to change

the authority of clerks to assign separate case numbers or assess fees in contempt

actions filed after a final decree.”).

      Judgment vacated and case remanded with direction. Dillard, P. J., and

Gobeil, J., concur.




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