Lee v. Green Land Co., Inc.

Thompson, Justice,

dissenting.

I respectfully dissent.

The first maxim of equity is that equity follows the law. Dolinger v. Driver, 269 Ga. 141, 143 (4) (498 SE2d 252) (1998). Thus, every equity case will of necessity turn on legal issues; and, with that in mind, it could be argued that every equity case must be transferred to the Court of Appeals. Of course, that argument cannot withstand scrutiny. It is only where equitable issues are ancillary to legal issues that a case belongs in the Court of Appeals. Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999).

In Redfearn, this Court transferred a restrictive covenant case to the Court of Appeals even though the defendants raised an equitable defense of laches. I joined the majority opinion in Redfearn because, under the rationale of Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991), that restrictive covenant case was a legal case with an ancillary equitable defense.7

In this case, plaintiff seeks specific performance, a purely equitable remedy. See Bernstein v. Fagelson, 166 Ga. 281 (142 SE 862) (1928). Of course, in order to decide whether specific performance lies in this case, we must look at the legal issues. However, the legal issues in this case are ancillary to the equitable remedy, i.e., specific performance.

In the final analysis, the jurisdictional question can be answered *115this way: Restrictive covenant cases should be transferred to the Court of Appeals because they are legal cases in which the equity issues are ancillary; specific performance cases should be retained by this Court because they are equity cases in which the legal issues are ancillary.

Decided February 28, 2000. Newton M. Galloway & Associates, Newton M. Galloway, Dean R. Fuchs, Shepherd & Johnston, William G. Johnston III, for appellant. Alan W. Connell, for appellee. I am authorized to state that Justice Hunstein joins in this dissent.

Beauchamp’s assertion that cases seeking specific performance relative to contracts to sell land should be transferred to the Court of Appeals was purely dicta. Thus, Geriner v. Branigar Organization, 268 Ga. 389 (489 SE2d 305) (1997), and Eickhoff v. Eickhoff, 263 Ga. 498 (435 SE2d 914) (1993), did not reject Beauchamp and need not be overruled.