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2018 Georgia Code 46-3-204 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 46-3-204 Case Law from Google Scholar Amendments to OCGA 46-3-204

TITLE 46 PUBLIC UTILITIES AND PUBLIC TRANSPORTATION

Section 3. Electrical Service, 46-3-1 through 46-3-541.

ARTICLE 4 ELECTRIC MEMBERSHIP CORPORATIONS AND FOREIGN ELECTRIC COOPERATIVES

46-3-204. Limitations as to actions growing out of acquisition of rights of way, easements, or occupation of lands of others; damages recoverable.

All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall be barred at the end of 12 months from the date of the accrual of such cause of action; and in cases where any such electric membership corporation is in possession of the lands of others without having condemned the property as provided, and such electric membership corporation is using any such land of another for any of the purposes for which an electric membership corporation may be created under this article, and the owners of the land took no legal steps to prevent the occupation of the land by the electric membership corporation, the rights of the owner of the land shall be limited to whatever damages may have been caused to his realty by such occupation; and this limitation shall apply to all persons whether sui juris or not.

(Ga. L. 1939, p. 312, § 3; Code 1933, § 34C-205, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Statute of limitations is constitutional.

- One-year statute of limitations under O.C.G.A. § 46-3-204 is constitutional because the statute does not violate the Equal Protection Clause of the Georgia Constitution and is not unconstitutionally vague. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Statute not governing claims against utility for noise pollution.

- Trial court properly denied summary judgment to an electrical plant operator on nearby landowners' nuisance claims. O.C.G.A. § 46-3-204 governed the acquisition of rights of way and did not apply to noise pollution claims, and the evidence as to whether the noise and vibrations from the plant were abatable nuisances or permanent nuisances was in sharp conflict. Oglethorpe Power Corp. v. Forrister, 303 Ga. App. 271, 693 S.E.2d 553 (2010).

Application to "all rights of action".

- Trial court correctly concluded that O.C.G.A. § 46-3-204 applied to the class member claims. The class was defined to include owners of land onto which the electric company unlawfully entered to erect structures; thus, the developer and other potential class members could not avoid the limiting language of the Code section by seeking equitable relief in the form of deed reformation because the Code section applied to "all rights of action." Boston Creek Holdings, LLLP v. Amicalola Elec. Mbrshp. Corp., 320 Ga. App. 375, 739 S.E.2d 811 (2013).

Claims were not time-barred.

- Property owners' claims against a utility were not time-barred because the owners filed suit within two months of the utility's alleged trespass and conversion as the destruction of more vegetation by the utility, which had previously clear cut trees on the owners' property, was new. Given the evidence that a utility representative disclaimed any easement or other right to enter the property again after the first incident, the second entry could not be deemed as a matter of law to be part of a continuing trespass. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Claims were time-barred.

- Property owners' argument that a utility defrauded the owners by claiming that the utility had no easement and no plan to enter the owners' property again did not toll the owners' claims relating to the entry of the owners' property because the trespass was completed and would not recur, and no matter what, the utility could not put back the trees and vegetation the utility had clear-cut, so the conversion was complete. There was no allegation, much less evidence, that the utility misled the owners as to a damages action. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Cited in Starr v. Central Ga. Elec. Membership Corp., 143 Ga. App. 528, 239 S.E.2d 241 (1977); Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265, 335 S.E.2d 637 (1985).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 136. 171 et seq.

27 Am. Jur. 2d, Eminent Domain, §§ 910, 911, 912, 917.

C.J.S.

- 29 C.J.S., Electricity, § 59.

ALR.

- Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

PART 3 C ORPORATE NAME

46-3-220. Requirements as to corporate name generally.

  1. The corporate name shall be written in Roman or cursive letters or Arabic or Roman numbers and:
    1. Shall contain the words "electric membership corporation" or an abbreviation of such words;
    2. Shall not contain any word or phrase:
      1. Which indicates or implies that the electric membership corporation is organized for any purpose other than one or more of the purposes permitted by this article and its articles of incorporation; or
      2. Which, in the reasonable judgment of the Secretary of State, is obscene;
    3. Shall not be the same as or confusingly similar to:
      1. The name of any electric membership corporation or other corporation, whether for profit or not, existing under the laws of this state;
      2. The name of any foreign corporation, whether for profit or not, or any foreign electric cooperative authorized to transact business in this state;
      3. A name the exclusive right to which is at the time reserved in the manner provided in Chapter 3 of Title 14, the "Georgia Nonprofit Corporation Code," Chapter 2 of Title 14, the "Georgia Business Corporation Code," or in this article;
      4. The name of a corporation which has in effect a registration of its corporate name as provided in Chapter 2 of Title 14, the "Georgia Business Corporation Code"; or
      5. Any name prohibited by any other law of this state.
  2. Nothing in this Code section shall:
    1. Prevent the use of the name of any electric membership corporation or other corporation, whether domestic or foreign, by an electric membership corporation where the first such electric membership corporation or other corporation has consented to such use, and the name of the electric membership corporation proposing such use contains other words or characters which distinguish it from the name of the first such electric membership corporation or other corporation;
    2. Require any electric membership corporation existing on July 1, 1981, to add to, modify, or otherwise change its corporate name; or
    3. Abrogate or limit the law as to unfair competition or unfair trade practice nor derogate from the common law, principles of equity, or the statutes of this state or of the United States with respect to the right to acquire and protect trade names and trademarks.
  3. Any electric membership corporation which is precluded from using its corporate name in another state because such name is the same as or confusingly similar to that of an electric membership corporation or other corporation already authorized to transact business therein or to a name already reserved or registered in such state may amend its articles of incorporation to add to its corporate name, solely for use in such other state, a word, abbreviation, or other distinctive and distinguishing element (such as, for example, the state of its incorporation in parentheses) as may be necessary to resolve any reasonable confusion between the two names. Such amendment shall set forth the state or states as to which it shall apply; and the corporate name with such additions shall be the name of the electric membership corporation in such other state or states and shall be used in all of its dealings with the officials of such state or states and in the conduct of its business and affairs in such state or states.
  4. The words "electric membership corporation" shall not be used in the corporate name of corporations organized under the laws of this state, or authorized to do business in this state, other than electric membership corporations.

(Ga. L. 1937, p. 644, § 7; Code 1933, § 34C-301, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 273, 277, 283, 284, 286-294, 296-299.

C.J.S.

- 18 C.J.S., Corporations, §§ 98-105.

Cases Citing O.C.G.A. § 46-3-204

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Daniel v. Amicalola Elec. Membership Corp., 711 S.E.2d 709 (Ga. 2011).

Cited 16 times | Published | Supreme Court of Georgia | Jun 27, 2011 | 289 Ga. 437, 2011 Fulton County D. Rep. 1935

...trespass, conversion, and declaratory judgment against the Amicalola Electric Membership Corporation (AEMC). We affirm the trial court's rejection of the Daniels' constitutional challenges to the one-year statute of limitation contained *712 in OCGA § 46-3-204....
...We then affirm in part and reverse in part the grant of summary judgment because issues of material fact remain regarding the existence of a valid prescriptive easement and the Daniels' trespass and conversion claims based on AEMC's 2008 actions are not barred by OCGA § 46-3-204....
...st further trespasses, and attorney fees. AEMC filed an answer and counterclaim seeking a declaration that it had a prescriptive easement. AEMC later asserted as a defense that the lawsuit was filed after the one-year statute of limitation, see OCGA § 46-3-204, [1] had run and filed a motion for summary judgment on that ground....
...The Daniels *713 also argued that their claims based on the second incident were not time-barred in any event, because they accrued in May 2008 and the complaint was filed two months later. On August 20, 2009, the Daniels filed a supplemental brief asserting that OCGA § 46-3-204 is unconstitutional because it violates the Equal Protection Clause of the Georgia Constitution and is unconstitutionally vague. At the summary judgment hearing on January 6, 2010, AEMC argued that the trial court lacked jurisdiction to rule on the merits of the Daniels' constitutional challenges to OCGA § 46-3-204 because the Daniels did not serve a copy of the supplemental brief on the Attorney General....
...Five months later, on June 7, 2010, the trial court granted summary judgment to AEMC, and the Daniels filed a timely appeal. 2. We first address AEMC's contention that the trial court and this Court lack jurisdiction to decide the Daniels' constitutional challenges to OCGA § 46-3-204 because this is (in part) a declaratory judgment action and the Daniels failed to timely serve the Attorney General with a copy of the proceeding....
...receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit'" (citations omitted)). We conclude that OCGA § 9-4-7(c) does not apply to this case. The Daniels did not file a declaratory judgment action to have OCGA § 46-3-204 declared unconstitutional. The declaratory judgments sought by the Daniels and by AEMC in its counterclaim pertain to whether AEMC has an easement on the Daniels' land. OCGA § 46-3-204 was raised by AEMC as a defense, and the Daniels then asserted the unconstitutionality of OCGA § 46-3-204 as an argument against that defense. This is far afield from filing a declaratory judgment action seeking to hold OCGA § 46-3-204 unconstitutional. *714 Furthermore, even assuming that OCGA § 9-4-7(c) did apply here, it was not violated. OCGA § 46-3-204 was not at issue in the case until April 2009, when AEMC amended its answer and counterclaim to plead OCGA § 46-3-204 as a defense....
...at the summary judgment hearing on January 6, 2010. The Daniels had a copy of their supplemental brief hand-delivered to the Attorney General the next day along with a cover letter informing him that they had made a constitutional challenge to OCGA § 46-3-204, that the trial court had taken the matter under advisement, and that the Attorney General should inform the trial court if he wished to be heard on the matter. The trial court then kept the matter under advisement for the next five months before ruling. Thus, the Attorney General had notice of the Daniels' challenge to the constitutionality of OCGA § 46-3-204 five months before the trial court ruled, but he made no attempt to be heard on the matter....
...The Daniels contend that the trial court rejected their equal protection and vagueness claims because it erroneously concluded that this Court had previously rejected those claims. The Daniels are correct that we have not squarely addressed their constitutional challenges to OCGA § 46-3-204, [3] but we now find the claims to be meritless. See Smith v. Lockridge, 288 Ga. 180, 186, 702 S.E.2d 858 (2010) (affirming grant of summary judgment on grounds different from the trial court). (a) Equal Protection: The Daniels assert that OCGA § 46-3-204 violates equal protection because the one-year statute of limitation for certain claims against EMCs lacks a rational basis, because similar claims may be filed later against other utilities....
...The rational basis test requires only that the legislative classification bear "`a rational relationship to a legitimate end of government not prohibited by the constitution.'" Nichols v. Gross, 282 Ga. 811, 813, 653 S.E.2d 747 (2007) (citation omitted). OCGA § 46-3-204 is part of a legislative scheme enacted during the Great Depression....
...on lines in Georgia in just two years. This rapid extension of the facilities needed to provide electric service to unserved areas obviously impinged on the property rights of numerous landowners. In 1939, the General Assembly added what is now OCGA § 46-3-204 to the EMC Act to set a one-year statute of limitation for rights of action resulting from an EMC's acquisition of an easement on or occupation of the land of others....
...any conceivable set of facts, the classifications drawn in the statute bear a rational relationship to a legitimate end of government not prohibited by the Constitution."). As this Court said in rejecting a different constitutional challenge to OCGA § 46-3-204: A classification as to persons located in a rural area within the State, as defined by the General Assembly of Georgia and the act of Congress, is a natural classification....
...ments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Foster v. State, 273 Ga. 555, 556, 544 S.E.2d 153 (2001) (citations and punctuation marks omitted). The Daniels contend that OCGA § 46-3-204 is unconstitutionally vague regarding the events that lead to the accrual of a cause of action against an EMC and the "legal steps" a property owner must take to recover more than damages. However, when read in its entirety, OCGA § 46-3-204 is clear as to its meaning and application....
...If an EMC was using someone's land for an activity outside its statutory purposes—say, to operate an amusement park—the owner's remedies clearly would not be so limited. Accordingly, we affirm the trial court's judgment upholding the constitutionality of OCGA § 46-3-204. *716 4. The Daniels contend that the trial court erred in applying OCGA § 46-3-204's one-year statute of limitation to evaluate AEMC's easement claim, instead of applying OCGA § 44-9-1's 20-year statute of limitation for acquiring by prescription a "private right of way" through "wild lands." This contention is meritless....
...Thus, summary judgment was clearly inappropriate on the parties' competing easement claims, and the trespass and conversion claims could not be denied on the merits based on the disputed premise that AEMC has a valid easement. (b) The remaining question is whether the one-year statute of limitation in OCGA § 46-3-204 barred the Daniels' trespass and conversion claims, rendering summary judgment to AEMC on these claims appropriate in whole or part....
...the unconcealed entry and clear-cutting of their property by an EMC, they had to sue within a year. They did not, *717 and thus the undisputed facts show that the Daniels' trespass and conversion claims for the 2007 incident were time-barred by OCGA § 46-3-204 and summary judgment to AEMC was proper to that extent....
...isance case relied on by AEMC and the trial court. Accordingly, the trial court erred in granting summary judgment to AEMC on the 2008 claims. Judgment affirmed in part and reversed in part, and case remanded. All the Justices concur. NOTES [1] OCGA § 46-3-204 provides as follows: All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall...
...[2] The Georgia Electric Membership Corporation has filed an amicus curiae brief in support of AEMC, which also makes this argument. [3] The case the trial court cited, Irwin County Elec. Membership Corp. v. Haddock, 214 Ga. 682, 107 S.E.2d 195 (1959), decided other constitutional challenges to OCGA § 46-3-204.