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Wilann Props. I, LLC v. Georgia Power Co.

Court of Appeals of Georgia

November 19, 2014

WILANN PROPERTIES I, LLC
v.
GEORGIA POWER COMPANY

Reconsideration denied December 11, 2014 -- Cert. applied for.

Addition of party. Floyd Superior Court. Before Judge Niedrach.

Chamberlain, Hrdlicka, White, Williams & Aughtry, Richard N. Hubert, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, J. Anderson Davis, for appellee.

BOGGS, Judge. Barnes, P. J., and Branch, J., concur.

OPINION

Page 464

Boggs, Judge.

This is the fourth appearance before us of this long-running dispute between a landowner, Wilann Properties I, LLC (" Wilann" ), and Georgia Power Company (" Georgia Power" ) over a utility easement across Wilann's property. Wilann appeals from the trial court's denial of its motion to add a party. We conclude that the trial court did not abuse its discretion, and we therefore affirm.

The facts of the case, as well as the earlier appeals, are noted in its most recent appearance, Wilann Properties I v. Georgia Power Co., 321 Ga.App. 297 (740 S.E.2d 386) (2013). There, we affirmed the trial court's grant of summary judgment in favor of Georgia Power Company. Id. Our Supreme Court denied Wilann's petition for certiorari, and the remittitur issued on March 25, 2013. On October 31, 2013, the trial court entered a " Final Judgment on Remittitur."

On December 2, 2013, Wilann filed a " Motion to Add Caffrey Construction Company as Counterclaim Defendant." With that motion, it filed a proposed second amended counterclaim, continuing to name Georgia Power as a defendant-in-counterclaim, making allegations against Georgia Power, as well as Caffrey Construction, and seeking relief against both. The trial court denied the motion, observing:

First, the Court is aware of no authority that provides that a party may be added to an action after the completion of the case. Furthermore, the Court finds that Wilann has not satisfied its burden of establishing lack of prejudice and [330 Ga.App. 312] excusable delay. Accordingly, Wilann's Motion to Add Caffrey [Construction] Company as Counterclaim Defendant is hereby DENIED.

" The determination of whether a party should be added to a lawsuit lies within the discretion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse." (Citation, punctuation and footnote omitted.) Ellison v. Hill, 288 Ga.App. 415, 418 (2) (654 S.E.2d 158) (2007). Moreover, the burden is on the movant to show " whether the new part[y] will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new part[y] previously." (Citations, punctuation and footnote omitted.) Id. The trial court did not abuse its discretion here.

First, the trial court correctly observed that the action below had already terminated. Georgia Power did not move for summary judgment on fewer than all the issues in the case: its motion is styled " Georgia Power's Motion for ...


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