*1 encumbering property. Panesar liability denied and counter- alia, claimed inter seeking, awarding possession an order him property. The court trial directed a verdict favor Panesar issues; jury. several other issues The were resolved judgment verdict, entered in accordance with the enjoining entering upon Umorens from the property, ordering that Edet Sampson $21,000 approximately Umoren recover from Panesar. This appeal followed.
All but one the alleged requires errors a consideration of the evidence adduced trial. We cannot consider them because the designate Umorens transcript proceedings failed for in- appeal. Harrington clusion the record on v. Harrington, 224 Ga. (161 862) (1968). error, remaining enumeration of the Umorens assert that the trial court erroneously judgment by entering amended the order after the term of subsequent court. We find no error. The order modify judgment or revise the matter of substance or affecting City matter merits. Gunter, See Cornelia (181 Management Burns v. Fedco (308 simply It was intended to en the judgment. force
Judgment All the Justices concur. affirmed.
Decided October denied
Reconsideration November 1995. Umoren,
Akon E. Umoren, Edet se. pro S. Martin, Jr.,
H. Ed Gelderen, A. Leon Van for appellees. MAN, S95A1279. STONE INC. v. al. GREEN et Carley, Justice. previous (Landowners) action, appellees nuisance sought to Man, (Stone Man) Inc.’s Although closed.
jury nuisance, found the to be a trial granted Land- only partial owners which allowed Stone Man to continue operation of with some restrictions. This grant injunctive appeal. Man, relief was Green, affirmed Inc. v. 205) (1993) (Stone I). Man then brought action,
Landowners seeking to recover damages resulting subsequent operation Stone Man’s quarry. According to allegations complaint, Landowners were entitled to recover such because the court’s re- substantially operating at quarry to continue allowed the
strictions found to be a action had jury level as the the same upon to dismiss based and moved Man answered nuisance. Stone motion, The trial court denied judicata. doctrine Appeals de- The Court of of immediate review. a certificate granted *2 interlocutory appeal and we for an application nied Stone Man’s petition for certiorari. granted Stone Man’s in an action injunctive relief Although plaintiff seeks action, doctrine of res subsequent in damages and then seeks apply if the issues are identical. by judgment will estoppel or (1979). 80) 603, Chilivis, App. 604-605 McBride v. 149 Ga. quarry constituted operation of of Stone Man’s The issue whether litiga- raised Landowners’ a nuisance was per se tion, quarry was a nuisance contended that Landowners However, entirely should be discontinued. operation and that only per accidens quarry was a nuisance found that found, only parts of and, enjoin “to those having so it was authorized entire the nuisance rather than the operation which constitute[d] (3). I, In- supplied.) supra Stone Man at 472 enterprise.” (Emphasis deed, “specific aspects operation identify did ad- the nuisance and remedies which fashion[ed] constitute[d] impos- operation problems making without continued dress those [ed] (3). I, (Emphasis supplied.) supra Stone Man at 472 sible.” judicial in Stone Man I is a final ruling affirmed The trial court’s im- operation accordance with the determination that of an actionable nuisance. Accord- posed limitations does constitute ingly, Landowners that, change precluded asserting any
are claim without rested, and with- controlling facts on which the decree defendant, they may yet out of that decree violation proof injury damages and recover therefor. make (Cal. Co., 145, App. Guttinger Cement P2d 147 v. Calaveras 766, 1958). Freight Sys., P2d Bodeneck v. Cater’s Motor Accord 498, (Wash. 1939); Co., McGrane v. New York El. R. 73 NYS 768-769 Gables, (1901). City City v. Coral Compare 500-501 Miami (Fla. 1970). 7, Therefore, denying S2d the trial court erred to dismiss Landowners’ claim for Man’s motion compliance the re operation with allegations that nuisance. strictions constitutes an actionable any damages However, entitled to recover Landowners would be resulting from Stone Man’s violation upon proof circumstances.
seek a modification of its terms Co., 147; County DeKalb v. Guttinger supra Cement v. Calaveras Bolick, (1) (295 Payne, Dunn v. 843, See (1) (422 291) (1992). that, appears 205 Ga. 441-442 It application appeal, filed its for interlocutory after Man Land- complaint owners amended their to seek these forms available re- Therefore, remand lief. we the case to trial court for consideration Trust Co. Bank v. complaint. of Landowners’ amendment to their See & S (3) C Trust Wal- 260 Ga. Bettis, drop (2) (157
Judgment concur, reversed and case remanded. All the Justices except Hunstein, JJ., Sears and who dissent. Justice, dissenting.
Sears, IAs conclude that the has erred in that the doc- action, trine bars Green’s to the dissent ma- jority opinion.
The majority predicates judicata holding its res its determina- judicial tion the trial court’s initial was “a final deter- mination that accordance with limitations does constitute an actionable Majority nuisance.” *3 (Emphasis opinion opinion.) believe, however, at 878. I majority that the majority holding. fact, mischaracterizes trial court’s court itself has made it clear that did not the determi- make nation that hearing attributes to it. At present Man’s motion to dismiss the judicata, action based on res forcefully argued Stone Man that the trial court’s order first conclu- sively operated determined that was not a nuisance court, however, restrictions. The trial stated that even though any “more than other would like to see one come [it] conclusion,” to a grant it could not motion to dismiss because the court had attempted parties’ balance the interests with the restric- had imposed tions in the first order and made a determination that if operated could not be a nuisance within those re- strictions.
As much Ias would like to controversy see end to the , . . . I would to decline motion dis- [Stone Man’s] Now, indeed, miss .... I regulations did draft a set of . . . under operate; which have to but would that [Stone Man] my part interest, was an attempt to balance the it — operation doesn’t I regulations impose mean whatever — under those regulations though pursuant my even it is regulations doesn’t mean it won’t be a nuisance under I circumstance. ... am in resolving disputes. favor love to see cases come to a conclusion. More than other conclusion, Ibut can’t
I would love to see this one come to a grant to dismiss. the motion original judgment nothing
The trial court’s contains that contradicts although hearing sum, its statements at the on the put so, it desire to the trial court had discretion to do recognized damaged business, but that the business Man out of appellees being operated. it was The trial court thus balanced these operate interests and chose to let Stone Man continue to under cer- tain restrictions. simply ruling, court,
Such a as indicated the trial is not a final op- ruling never that Stone Man’s business could be a nuisance when practical Rather, erated under the restrictions. the restrictions were a attempt operate to determine if Stone Man could in an business types injunctions inoffensive manner. These “desirable result” because of extremes have been called a they permit a trial court to avoid a choice — productive the destruction of or the continua- business damaging tion of a nuisance.1 applied rigid law of nuisance affords no rule to be all require only
instances. It is elastic. It undertakes to which is fair and reasonable under all the circumstances. In a depends pros- this, commonwealth like for its material perity manufacturing largely growth enlargement so on the continued rights” varieties,
of diverse “extreme cannot be enforced.2 historically granted injunctions
Trial courts have that have continuing restrictions on businesses and have thereafter reviewed the gone effectiveness of those restrictions.3 Courts have even so far as to periodically report order a business to back to the court or to a keep apprised attempts master to the court of the effectiveness of limit the offensive character of a business.4 Judgments,
Moreover, Restatement, Second, notes that ac modify injunctions deny grant continuing relief, tions to like *4 by they case, in the one this are not barred res when are change may modify pre A on a of condition.5 trial court thus injunction by imposing defendant, vious the additional “if burdens the original purposes injunction being of the are not in fulfilled 1 Dobbs, Remedies, 360, (1973). p. Handbook On the Law of 5.7§ 2 Rockport 371, v. Granite 104 Stevens NE 3 See Dobbs at 360-361. 4 Id. 5 Restatement, Second, Judgments, Comment c. § respect,” change operative due material to whether to a in the facts7 appreciation light experience.”8 in “a better of the of facts plaintiff alleges Common sense in in dictates that cases which a purpose previous injunction being that a age is fulfilled due to change frequently condition, will dam- condition be plaintiff or harm to the was not foreseen at the time injunction injunction designed prevent. but which the was in- to For Family stance, in Sizzler Steak Houses v. Western Sizzlin Steak initially enjoined using House the trial court Western Sizzlin from identify permitted the “Sizzlin” mark to service its services but it to keep identify goods. Subsequently, the trademark to its prohibit injunction using modified Western the “Sizzlin” using trademark and from mark in service circumstances that ex- original injunction isted at time Sizzler had not discovered that time. The Eleventh Circuit held that addi- these proper original injunction tional restrictions were because the in- was purpose halting public sufficient to fulfill its confusion of “Siz- zler” and “Sizzlin” marks.10 original injunction
Just as the in Sizzler was not a final determi- longer danger public nation that there was no confusion of the original injunction marks, “Sizzler” and “Sizzlin” in this case was not a final determination that the change opera- Further,
restrictions tive could never be nuisance. in plaintiffs Sizzler, facts was harm the that the parties and the court had foreseen at the time in- of the initial junction. purpose original injunction Moreover, the in this case damage property by operation was to alleviate the caused Green’s quarry. By damage alleging property to his has continued original injunction, alleging, just plain- since the Green is now like the original injunction Sizzler, tiff did was insufficient to ful- purpose. Clearly, allegations damage fill its if Green’s of continued are purpose injunction correct, the Thus, would be unfulfilled. foregoing principles, original injunction under would not be original as to a claim Green to increase the restrictions although seeking Moreover, Man.11 Green is now Kane, Wright, (citing Miller & & Civil Federal Practice Procedure: 2d 2961 at § Machinery Corp., United States v. Shoe United 391 U. SC S. 20 LE2d 562) (1968)). 7 Id. at 402-403. 8 Id. at 404. (11th 1986). 793 F2d Cir. 10 Id. at 1539-1540. 11 My injunction subject conclusion that the is this case to modification is not County Buchanan, inconsistent with this Court’s decision Cobb authority modify this Court held that permanent outside of the term in which it was entered. *5 judicata injunction, the res of a modification instead continuing injunction remains other constant. of the initial
effect injunction original to a modifica- words, if is not res as the damage, then it should be a to the continued action alleviate tion pursue injunctive damages if action Green elects to to an for bar relief. opinion, implicitly recognizes majority con- fact, that the The permits damage property is a condition that to Green’s tinued majority, regard, 878, holds that this the Green’s injunction’s] may [the terms “seek a modification of Green only proof changed proof circum- circumstances.” justify in- stances, however, modification of the that would damage by alleged junction is Green. The reason that is the continued operation only ground original injunction was the for the that the quarry thus, nuisance; of the in- modification the constituted upon finding quarry predicated junction that the remains a must be quarry operated restrictions, if the is when nuisance operated restrictions, the no modification not a of the “changed when within by phrase injunction vein, In the same the is warranted. referring majority circumstances,” cannot be to viola- the by not in- the Stone Man. Such violations would tions of restrictions injunction modification, would that the needed indi- dicate cate only contempt injunction. Further, the that Man is only operation reason for a modification action is that the because nuisance, within the restrictions continues be a may majority’s holding contra- that Green seek modification action injunction initial was a dicts its final determination quarry within the restrictions does not consti- that tute a nuisance.
Finally, policy, judi- res a matter of it is undesirable to accord by injunctions cata effect to like issued this that productive business, A trial faced such case. quarry, court that is with a as a damaging neighboring is an in- landowners must draft junction light of what it believes will be the future course of events. complex dynamics interaction of a with Given surrounding determining impact environment, future imprecise undertaking. likely If, on its is an as is environment injunction permits case, a trial is uncertain whether operate damage to will alleviate the the business continue injunc- neighboring landowners, if knows the court that such an given will be effect the restrictions on business tion relief, Buchanan, however, denying continuing injunction granting not one like was of a but one ordered the immediate removal structure. fail damage, may to alleviate the the court instead issue an closing the business. We should not seek- discourage courts from ing practical, today’s problems, economic solutions to difficult on the costs and benefits all who majority would be affected. The opinion certainly diminishes the usefulness of like that utilized this case.12 Id. at 472 reasons, I foregoing For opinion. dissent to the am *6 authorized to state that joins Justice Hunstein this dissent. Decided October
Reconsideration denied November 1995. & Moldovan, Wayne Phears, Jr., Phears H. Norton, Albert L. for appellant. Akin,
William M. appellees. for
S95G0660. STUBBS v. THE STATE. (463 686) SE2d Justice. Thompson, State, granted Stubbs v. We Appeals certiorari Court of (452 571) (1994), 215 Ga. to re-examine this issue: a required give When is jury charge on circumstantial in a charge say? evidence criminal trial and what reit- should the We erate holding our cases: If the State’s case includes both evidence, direct and charge circumstantial the trial court must on the law of circumstantial request; evidence State’s case is solely evidence, composed of circumstantial the trial must charge on the law of request. circumstantial evidence even without a In either charge trial court’s on the law of circumstantial State, Yarn v. evidence should follow OCGA 24-4-6. § (462 359) State, (443 Mims v. (1995); 845) 264 Ga. State, Robinson v. burglary Stubbs was possession convicted and of tools request charge commission a crime. He circumstantial and given. appeal, argued evidence none was On Stubbs Man, (1993), Our in Stone is consistent with opera “enjoin[ed] aspects dissent. we held that the trial court those tion which those constitute^] remedies fashion[ed] address[ed] problems making operation impossible.” Enjoining aspects without certain continued judgment ruling a trial as a business that court finds to be nuisance is not the same final those never be a business under restrictions can nuisance. improper tag. operating He was also convicted of motor vehicle with