O.C.G.A. § 9-5-8 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION DISCRETION APPEALS APPLICATION General Consideration Complainant must make case which does not rest upon doubtful or disputed principles of law; for an in-

junction will not usually be granted when the complainant’s right thereto is not clear. In all cases the complainant must establish the existence of the fraud or fact

General Consideration (Cont’d) on which the complainant’s right to interlocutory relief is based, and show the necessity for an injunction in order to preserve rights or prevent irreparable injury. Everett v. Tabor, 119 Ga. 128, 46 S.E. 72, 1903 Ga. LEXIS 59 (1903). Full and candid disclosure of all facts must be made in application for injunction. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). There must be no misrepresentation or concealment of important facts, and if the plaintiff keeps in the background facts which are important to enable the court to form the court’s judgment, such conduct is of itself sufficient to prevent the interposition of the court. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). Concealment of material facts grounds for denial of injunction. - If the case shows a concealment of facts which would, if stated, materially affect the conscience of the court, the trial judge may properly refuse an injunction. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). In application for interlocutory injunction, there should be balancing of conveniences and a consideration of whether greater harm might be done by refusing than by granting the injunction. Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848, 1942 Ga. LEXIS 591 (1942); Parker v. West View Cem. Ass’n, 195 Ga. 237, 24 S.E.2d 29, 1943 Ga. LEXIS 480 (1943); Davies v. Curry, 230 Ga. 190, 196 S.E.2d 382, 1973 Ga. LEXIS 855 (1973). Interlocutory hearing is designed to balance conveniences of parties pending a final outcome of the case. Metropolitan Atlanta Rapid Transit Auth. v. Wallace, 243 Ga. 491, 254 S.E.2d 822, 1979 Ga. LEXIS 957 (1979). Preliminary injunction will not issue if right to be protected is in doubt, if the right of relief asked is doubtful, or except in a clear case of right. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). Interlocutory injunction should be refused if the injunction’s grant would operate oppressively on defen-

dant’s rights, especially in such a case that the denial of the temporary injunction would not work irreparable injury to the plaintiff or leave the plaintiff practically remediless in the event it should thereafter establish the truth of its contention. Metropolitan Atlanta Rapid Transit Auth. v. Wallace, 243 Ga. 491, 254 S.E.2d 822, 1979 Ga. LEXIS 957 (1979). Requirement of notice. - Although other parties had filed summary judgment motions regarding the disputed ownership of equipment, no one had raised the issue of injunctive relief before the hearing, and another party, who did not participate in the hearing, could not be bound by an interlocutory injunction issued against that party without notice under O.C.G.A. § 9-11-65(a)(1). Abel & Sons Concrete, LLC v. Juhnke, 295 Ga. 150, 757 S.E.2d 869, 2014 Ga. LEXIS 345 (2014). Injunction proceedings, being extraordinary, ought to be exercised with great caution, and applied only in a very clear case and in such manner as to prevent injustice and unnecessary injury, and it is also necessary that there should be some special circumstances bringing the case under some recognized head of equity jurisdiction, and the court should therefore be guided by the fact that the burden of proof rests upon the complainant to establish the material allegations entitling the plaintiff to relief. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). Power of injunction. - There is no power which requires greater caution, deliberation, and sound discretion or is more dangerous in a doubtful case than the issuing of an injunction. Cathcart Van & Storage Co. v. City of Atlanta, 169 Ga. 791, 151 S.E. 489, 1930 Ga. LEXIS 33 (1930). Injunction ought not to be granted unless injury is pressing and the delay dangerous, and there is no adequate remedy at law. Cathcart Van & Storage Co. v. City of Atlanta, 169 Ga. 791, 151 S.E. 489, 1930 Ga. LEXIS 33 (1930). Injunction is not of right but of grace; to warrant the interposition of this strongest arm of the law, the case must not be a sham, but a well-grounded complaint, the bona fides of which are unquestioned, or capable of vindication if ques-

tioned. Tarver v. Silver, 180 Ga. 124, 178 S.E. 377, 1935 Ga. LEXIS 195 (1935). Discretion It would be proper exercise of discretion to deny interlocutory injunction when there was no evidence to support the allegations of the petition, and an abuse of discretion to grant the injunction if there was in fact no evidence to support the petition. Kight v. Gilliard, 214 Ga. 445, 105 S.E.2d 333, 1958 Ga. LEXIS 456 (1958). When trial judge should preserve status quo. - When the evidence is conflicting, and it appears that the injunction if granted would not operate oppressively to the defendant, but that if denied the complainant would be practically remediless in case the complainant should thereafter establish the truth of the complainant’s contentions, it would be strong reason why the trial judge should exercise judicial discretion so as to preserve rights by preserving the status quo. Everett v. Tabor, 119 Ga. 128, 46 S.E. 72, 1903 Ga. LEXIS 59 (1903); Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 923, 1939 Ga. LEXIS 775 (1939). Trial court abused the court’s discretion in enjoining a defendant from operating its marina on docks which fronted the plaintiffs’ property as the injunction did not maintain the status quo and the record showed no irreparable harm to plaintiffs from defendant’s continued operation of the marina. DBL, Inc. v. Carson, 262 Ga. App. 252, 585 S.E.2d 87, 2003 Ga. App. LEXIS 711 (2003), cert. denied, No. S03C1709, 2003 Ga. LEXIS 983 (Ga. Nov. 10, 2003). Trial court did not abuse the court’s discretion in balancing the equities involved, determining that a farm homeowners’ association would be without remedy if it should prevail if an interlocutory injunction were not granted, determining that real estate developers would not be oppressed by maintaining the status quo and that they would have a remedy at law should they prevail, and granting an interlocutory injunction to maintain the status quo while the legal issues in the real estate development case were litigated. Kinard v. Ryman Farm Homeowners’

Ass’n, 278 Ga. 149, 598 S.E.2d 479, 2004 Ga. LEXIS 531 (2004). Grant or denial of injunction rests in sound discretion of judge, according to the circumstances of each case. Cathcart Van & Storage Co. v. City of Atlanta, 169 Ga. 791, 151 S.E. 489, 1930 Ga. LEXIS 33 (1930); Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 923, 1939 Ga. LEXIS 775 (1939); Atkinson v. England, 194 Ga. 854, 22 S.E.2d 798, 1942 Ga. LEXIS 680 (1942); Associated Muts., Inc. v. Coe, 196 Ga. 435, 26 S.E.2d 450, 1943 Ga. LEXIS 336 (1943); Sirota v. Kay Homes, Inc., 208 Ga. 113, 65 S.E.2d 597, 1951 Ga. LEXIS 304 (1951); Danielsville & Comer Tel. Co. v. Sanders, 209 Ga. 144, 71 S.E.2d 226, 1952 Ga. LEXIS 439 (1952); Tift v. Farmers Bank, 210 Ga. 35, 77 S.E.2d 505, 1953 Ga. LEXIS 463 (1953); Lowry v. Rosenfeld, 213 Ga. 60, 96 S.E.2d 581, 1957 Ga. LEXIS 302 (1957); Bell Indus., Inc. v. Jones, 220 Ga. 684, 141 S.E.2d 533, 1965 Ga. LEXIS 606 (1965); Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758, 1974 Ga. LEXIS 723 (1974); Metropolitan Atlanta Rapid Transit Auth. v. Wallace, 243 Ga. 491, 254 S.E.2d 822, 1979 Ga. LEXIS 957 (1979); Staples v. Ladson, 256 Ga. 621, 351 S.E.2d 448, 1987 Ga. LEXIS 537 (1987). Court did not abuse the court’s discretion in granting stay of execution pending consideration of habeas corpus petition containing claims not previously adjudicated. Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508, 1982 Ga. LEXIS 1201 (1982). Because an order granting the interlocutory injunction did not reflect that the trial court balanced the relative equities of the parties, and in which the party seeking the relief would have had to demonstrate entitlement thereto, that order had to be reversed as the trial court abused the court’s discretion. Bernocchi v. Forcucci, 279 Ga. 460, 614 S.E.2d 775, 2005 Ga. LEXIS 441 (2005). Discretion of trial judge is based on law and evidence before the judge. Kelley v. Kelley, 228 Ga. 639, 187 S.E.2d 284, 1972 Ga. LEXIS 872 (1972). When evidence conflicts, trial judge is vested with wide discretion. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133, 1975 Ga. LEXIS 814 (1975).

Discretion (Cont’d) Exercise of discretion by the trial court in granting or denying an injunction will not be interfered with absent manifest abuse, but the trial court’s discretion is limited to cases in which there is a conflict in the evidence. Slaven v. City of Buford, 257 Ga. 100, 355 S.E.2d 663, 1987 Ga. LEXIS 748 (1987). Grant or refusal of injunction on conflicting evidence is within discretion of court when right of plaintiff is in doubt. Loadman v. Davis, 210 Ga. 520, 81 S.E.2d 465, 1954 Ga. LEXIS 362 (1954); Allen v. City of Atlanta, 219 Ga. 65, 131 S.E.2d 549, 1963 Ga. LEXIS 368 (1963). Trial judge’s discretion will not be controlled. - When the evidence is in sharp conflict, the Supreme Court will not interfere to control the discretion of the trial judge in granting a temporary injunction. Mayor of Savannah v. Collins, 211 Ga. 191, 84 S.E.2d 454, 1954 Ga. LEXIS 526 (1954); Norfolk S. Ry. v. Dempsey, 267 Ga. 241, 476 S.E.2d 577. When the evidence on the material issues is in conflict, the Supreme Court will not control the discretion vested in the trial judge in denying an interlocutory injunction. Rooks v. Meyer, 217 Ga. 727, 124 S.E.2d 634, 1962 Ga. LEXIS 370 (1962); Levenson Inv. Co. v. Whitehead, 230 Ga. 680, 198 S.E.2d 682, 1973 Ga. LEXIS 1031 (1973). Discretion manifestly abused. - Trial judge’s exercise of discretion in granting or modifying the relief prayed for will not be controlled unless manifestly abused. A. Louis & Co. v. Bamberger, Bloom & Co., 36 Ga. 589, 1867 Ga. LEXIS 99 (1867); Falvey v. Adamson, 73 Ga. 493, 1884 Ga. LEXIS 156 (1884); Tanner Grocery Co. v. Stewart, 157 Ga. 412, 121 S.E. 416, 1924 Ga. LEXIS 63 (1924); Gray v. Chason, 158 Ga. 313, 123 S.E. 290, 1924 Ga. LEXIS 143 (1924). In hearings upon applications for interlocutory injunctions, when the evidence upon material issues of fact is in conflict, the grant or refusal of applications is within the discretion of the trial judge and the exercise of judicial discretion in granting or refusing the relief prayed for will not be controlled, unless manifestly

abused. Volunteer State Life Ins. Co. v. Chapman, 173 Ga. 633, 160 S.E. 783, 1931 Ga. LEXIS 371 (1931); Associated Muts., Inc. v. Coe, 196 Ga. 435, 26 S.E.2d 450, 1943 Ga. LEXIS 336 (1943); Department of Agric. v. Country Lad Foods, Inc., 226 Ga. 631, 177 S.E.2d 38, 1970 Ga. LEXIS 618 (1970). When evidence is conflicting, the trial judge’s decision will not be reversed, unless it is apparent that the judge has abused the discretion which the law gives. Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 923, 1939 Ga. LEXIS 775 (1939); Moon v. Clark, 192 Ga. 47, 14 S.E.2d 481, 1941 Ga. LEXIS 404 (1941); Atkinson v. England, 194 Ga. 854, 22 S.E.2d 798, 1942 Ga. LEXIS 680 (1942); Associated Muts., Inc. v. Coe, 196 Ga. 435, 26 S.E.2d 450, 1943 Ga. LEXIS 336 (1943); Sachs v. Dempsey, 203 Ga. 438, 47 S.E.2d 326, 1948 Ga. LEXIS 352 (1948); Sirota v. Kay Homes, Inc., 208 Ga. 113, 65 S.E.2d 597, 1951 Ga. LEXIS 304 (1951); Danielsville & Comer Tel. Co. v. Sanders, 209 Ga. 144, 71 S.E.2d 226, 1952 Ga. LEXIS 439 (1952); Tift v. Farmers Bank, 210 Ga. 35, 77 S.E.2d 505, 1953 Ga. LEXIS 463 (1953); Lowry v. Rosenfeld, 213 Ga. 60, 96 S.E.2d 581, 1957 Ga. LEXIS 302 (1957); Bell Indus., Inc. v. Jones, 220 Ga. 684, 141 S.E.2d 533, 1965 Ga. LEXIS 606 (1965); Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758, 1974 Ga. LEXIS 723 (1974); Metropolitan Atlanta Rapid Transit Auth. v. Wallace, 243 Ga. 491, 254 S.E.2d 822, 1979 Ga. LEXIS 957 (1979). In an application for interlocutory injunction, the discretion exercised by the judge will not be controlled by the Supreme Court unless there was a manifest abuse of such discretion. Thompson v. Mutual Inv. Corp., 188 Ga. 476, 4 S.E.2d 44, 1939 Ga. LEXIS 547 (1939). See also Jones v. Camp, 208 Ga. 164, 65 S.E.2d 596, 1951 Ga. LEXIS 303 (1951); Kingsley Mill Corp. v. Edmonds, 208 Ga. 374, 67 S.E.2d 111, 1951 Ga. LEXIS 368 (1951); First Fed. Sav. & Loan Ass’n v. Owen, 210 Ga. 424, 80 S.E.2d 169, 1954 Ga. LEXIS 302 (1954); Pennsylvania Poorboy, Inc. v. Robbins Restaurant, Inc., 238 Ga. 539, 233 S.E.2d 791, 1977 Ga. LEXIS 1092 (1977); Corporation of Presiding Bishop v. Statham, 243 Ga. 448, 254 S.E.2d 833,

1979 Ga. LEXIS 932 (1979); Wheatley Grading Contractors v. DFT Invs., Inc., 244 Ga. 663, 261 S.E.2d 614, 1979 Ga. LEXIS 1364 (1979). Refusal to grant an interlocutory injunction will not be interfered with by the Supreme Court if it appears that there was a conflict in the evidence on the issues of fact. Loadman v. Davis, 210 Ga. 520, 81 S.E.2d 465, 1954 Ga. LEXIS 362 (1954); Allen v. City of Atlanta, 219 Ga. 65, 131 S.E.2d 549, 1963 Ga. LEXIS 368 (1963); Lawrence v. Harding, 225 Ga. 148, 166 S.E.2d 336, 1969 Ga. LEXIS 406 (1969). It is clearly settled in Georgia that the exercise of discretion by the lower court in granting and continuing (preliminary) injunctions will not be interfered with in the absence of manifest abuse. Slautterback v. Intech Mgt. Servs., 247 Ga. 762, 279 S.E.2d 701, 1981 Ga. LEXIS 887 (1981); West 80 Investors v. Checquers Inv. Assocs., 214 Ga. App. 673, 448 S.E.2d 735, 1994 Ga. App. LEXIS 1014 (1994), cert. denied, No. S95C0124, 1995 Ga. LEXIS 270 (Ga. Jan. 26, 1995). After a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and 9-2-44; the trial court did not abuse the court’s discretion pursuant to O.C.G.A. § 9-5-8 in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and 9-5-3. Smith v. Tronitec, Inc., 277 Ga. 210, 586 S.E.2d 661, 2003 Ga. LEXIS 790 (2003). Court of appeals agreed with a former employee that the trial court abused the court’s discretion in granting the former employer a permanent injunction after finding that a covenant not to compete entered into by the parties, approximately 18 months into the former employee’s twoyear contract, was binding on that employee as neither the employer’s pre-existing duty to employ the employee for two years, nor the employee’s continued employment, provided sufficient consideration for the agreement. Glisson v. Global Sec. Servs., 287 Ga. App. 640, 653 S.E.2d 85, 2007 Ga. App. LEXIS 1047 (2007). Absent any findings that the status quo was endangered or in need of preserva-

tion, and because an interlocutory injunction did not in fact preserve the status quo but forced a dog kennel owner to cease operations, the trial court abused the court’s discretion in granting relief to an adjacent neighbor of the business, especially when that business had been in operation for several years without complaint. Green v. Waddleton, 288 Ga. App. 369, 654 S.E.2d 204, 2007 Ga. App. LEXIS 1209 (2007). Abuse of discretion found. - In a landowner’s action seeking a temporary restraining order, interlocutory injunction, and permanent injunction, because the description of an easement in favor of a landowner in a deed failed to provide for gates or other obstructions, the neighbor admitted to installing the gates at issue, and a dispute existed as to when the obstruction occurred relative to the grant of the easement, the trial court erred in not requiring the neighbor to remove the gates. Williams v. Trammell, 281 Ga. App. 590, 636 S.E.2d 757, 2006 Ga. App. LEXIS 1174 (2006). Because a lessee had a license concerning a sign on the leased property, made improvements in reliance on the license, and a second lessee took ownership of the property with actual notice of the sign, the trial court abused the court’s discretion in denying the lessee an interlocutory injunction barring the second lessee from interfering with the sign as the license became irrevocable; moreover, the fact that the lessee did not own the land in which the sign was located was irrelevant. Lowe’s Home Ctrs., Inc. v. Garrison Ridge Shopping Ctr. Marietta, GA, L.P., 283 Ga. App. 854, 643 S.E.2d 288, 2007 Ga. App. LEXIS 213 (2007), cert. denied, No. S07C0993, 2007 Ga. LEXIS 452 (Ga. June 4, 2007). Principle of substantial equity violated. - Large discretion is vested in a trial judge in granting an injunction, and unless some principle of substantial equity has been violated, the Supreme Court will not control that discretion. Wright v. Intercounty Properties, Ltd., 238 Ga. 492, 233 S.E.2d 160, 1977 Ga. LEXIS 1070 (1977). Trial judge’s discretion to determine whether a temporary injunction should

Discretion (Cont’d) issue will not be disturbed unless some principle of substantial equity has been violated. Pan Am Mktg., Inc. v. Fincannon, 246 Ga. 315, 271 S.E.2d 212, 1980 Ga. LEXIS 1100 (1980). Not abuse of discretion to continue restraint when evidence conflicts. - When the evidence is in substantial conflict on material issues, it is not an abuse of discretion for the trial judge to continue in effect a previous restraining order on the hearing for interlocutory injunction. Mayor of Hazlehurst v. Wilson, 205 Ga. 231, 52 S.E.2d 849, 1949 Ga. LEXIS 329 (1949). Failure to exercise any discretion erroneous. - When it clearly appears from the actual language of the order that the judge failed to exercise any discretion whatever, and that the judge’s refusal of an injunction was based entirely on erroneous construction of the law by holding that as a matter of law the judge could not grant an interlocutory injunction until a jury decided issues of fact made by petition and answer, such judgment was erroneous. Marion County v. McCorkle, 187 Ga. 312, 200 S.E. 285, 1938 Ga. LEXIS 781 (1938). Discretion is limited to cases in which evidence conflicts. Corporation of Presiding Bishop v. Statham, 243 Ga. 448, 254 S.E.2d 833, 1979 Ga. LEXIS 932 (1979). Trial court has broad discretion to decide whether to grant or deny an interlocutory injunction; however, when there is no conflict in the evidence, the judge’s discretion in granting or denying the interlocutory injunction becomes circumscribed by the applicable rules of law. West v. Koufman, 259 Ga. 505, 384 S.E.2d 664, 1989 Ga. LEXIS 437 (1989). Since there was no conflict in the evidence regarding whether an employer had made an effort to maintain certain information as secret, and the information sought to be protected was in a former employee’s memory, the superior court lacked the discretion to grant an injunction. Smith v. Mid-State Nurses, Inc., 261

Ga. 208, 403 S.E.2d 789, 1991 Ga. LEXIS 214 (1991). Deference to judge’s discretion not applicable to questions of law. - Rule that the Supreme Court will not interfere with the discretion of the trial judge in granting or refusing an injunction when the evidence is conflicting does not apply when the question to be decided by the trial judge is one of law. Washington Nat’l Ins. Co. v. Mayor of Savannah, 196 Ga. 126, 26 S.E.2d 359, 1943 Ga. LEXIS 327 (1943); Griffin v. Loman, 206 Ga. 116, 56 S.E.2d 263, 1949 Ga. LEXIS 424 (1949); Sirota v. Kay Homes, Inc., 208 Ga. 113, 65 S.E.2d 597, 1951 Ga. LEXIS 304 (1951); Danielsville & Comer Tel. Co. v. Sanders, 209 Ga. 144, 71 S.E.2d 226, 1952 Ga. LEXIS 439 (1952); Bell Indus., Inc. v. Jones, 220 Ga. 684, 141 S.E.2d 533, 1965 Ga. LEXIS 606 (1965). When, an injunction is granted or refused on an erroneous interpretation of the law, the rule giving effect to the trial judge’s discretion on issues of fact, so that an affirmance would be required if the evidence as to the facts is conflicting, will not be given application. Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848, 1942 Ga. LEXIS 591 (1942). Granting portions of interlocutory injunction held abuse of discretion. - Trial court abused the court’s discretion in granting portions of an interlocutory injunction which enjoined defendant from disbursing or transferring possession or ownership of the defendant’s real and personal property since there was no evidence presented that the status quo was in any way endangered and in need of preservation by means of an interlocutory injunction. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 401 S.E.2d 515, 1991 Ga. LEXIS 103 (1991). Grant or deny temporary injunction. - When there is a direct conflict in the evidence on the material issue before the trial judge on the interlocutory hearing, the trial judge did not abuse the judge’s discretion in granting an interlocutory injunction pending a final hearing of the case. First Fed. Sav. & Loan Ass’n v. Owen, 210 Ga. 424, 80 S.E.2d 169, 1954 Ga. LEXIS 302 (1954).

When the evidence is conflicting at an interlocutory hearing to determine whether or not the lower court should grant or deny a temporary injunction, it cannot be said that the court abused the court’s discretion in either granting or denying the injunction. Franklin v. SingWilkes, Inc, 215 Ga. 596, 112 S.E.2d 618, 1960 Ga. LEXIS 276 (1960); Forrester v. City of Gainesville, 223 Ga. 344, 155 S.E.2d 376, 1967 Ga. LEXIS 519 (1967); Columbus, Ga. v. Granco, Inc., 240 Ga. 850, 242 S.E.2d 607, 1978 Ga. LEXIS 849 (1978). When the case turns on issues of fact and the evidence is conflicting upon those issues, it cannot be held that the trial judge has abused the judge’s discretion in granting or refusing an interlocutory injunction. Milton Frank Allen Publications, Inc. v. Georgia Ass’n of Petro. Retailers, 223 Ga. 784, 158 S.E.2d 248, 1967 Ga. LEXIS 695 (1967). Court did not abuse the court’s discretion in entering an interlocutory injunction barring further disposition of the proceeds from joint bank accounts pending final disposition of the fraudulent transfer and wrongful death lawsuits because badges of fraud indicated an actual intent to hinder, delay, or defraud a decedent’s estate and heirs of a full recovery. The transferor’s adult child came up from Florida to withdraw the funds from joint bank accounts in Georgia three days after the transferor was arrested for the murder of the decedent. Bishop v. Patton, 288 Ga. 600, 706 S.E.2d 634, 2011 Ga. LEXIS 151, overruled in part, SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 709 S.E.2d 267, 2011 Ga. LEXIS 270 (2011). Appeals Judgment will not be disturbed by appellate court. - When there is a material conflict in the evidence, a judgment refusing an injunction will not be disturbed. Robinson v. Bryant, 181 Ga. 722, 184 S.E. 298, 1936 Ga. LEXIS 416 (1936). Supreme Court will not reverse judgment when it appears that evidence was in conflict because such a judgment was entered in the exercise of the trial judge’s

discretion. Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848, 1942 Ga. LEXIS 591 (1942); Milton Frank Allen Publications, Inc. v. Georgia Ass’n of Petro. Retailers, 223 Ga. 784, 158 S.E.2d 248, 1967 Ga. LEXIS 695 (1967). Superior court order granting interlocutory injunctive relief reversed on question of law. See Lesesne v. Mast Property Mgt., Inc., 251 Ga. 550, 307 S.E.2d 661, 1983 Ga. LEXIS 883 (1983). Application Interlocutory injunction properly granted in service mark infringment suit. - In a suit alleging, inter alia, the infringement of state registered service marks, the trial court properly granted the plaintiff interlocutory relief because it was undisputed that the plaintiff was the last entity to hold the named pageants prior to the interlocutory injunction hearing, regardless of any issues of registration of service marks or abandonment or assignment by the defendant; thus, the status quo was the plaintiff being the host of the events using the marks. IndiaAmerican Cultural Ass’n v. iLink Professionals, Inc., 296 Ga. 668, 769 S.E.2d 905, 2015 Ga. LEXIS 149 (2015). Convenience of parties cannot be ignored in determining whether there has been abuse of discretion in grant or denial of injunction. Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 923, 1939 Ga. LEXIS 775 (1939). Trial court did not abuse the court’s discretion by enjoining developer from constructing condominiums because parol evidence was properly considered to show that the terms “patio home” and “cluster home,” as used in the subdivision’s restrictive covenants, did not include town homes or condominiums. Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 612 S.E.2d 12, 2005 Ga. App. LEXIS 164 (2005), cert. denied, No. S05C1183, 2005 Ga. LEXIS 485 (Ga. June 30, 2005). Denial of asset manager’s interlocutory injunction. - Trial court did not abuse the court’s discretion under O.C.G.A. § 9-5-8 in denying the asset manager’s interlocutory injunction motion based on its evaluation of the under-

Application (Cont’d) lying merits of the case; denial of an interlocutory injunction based solely on an evaluation of the underlying merits of the case was not impermissible, and balancing other equities involved in the case was not required. Toberman v. Larose Ltd. P’ship, 281 Ga. App. 775, 637 S.E.2d 158, 2006 Ga. App. LEXIS 1256 (2006). No abuse of discretion in dissolving restraining order. - At a hearing on an interlocutory injunction in which the evidence is in conflict on material issues involved, there is no abuse of discretion for the trial judge to dissolve a temporary restraining order. Green v. Fuller, 223 Ga. 204, 154 S.E.2d 220, 1967 Ga. LEXIS 466 (1967). Trial court did not abuse the court’s discretion in dissolving a restraining order since the restraining order did not preserve the status quo between the parties, and adequate resources assured that the party which commenced the suit would be compensated if that party were to prevail on the merits of the claim. Byelick v. Michel Herbelin USA, Inc., 275 Ga. 505, 570 S.E.2d 307, 2002 Ga. LEXIS 853 (2002). Refusal to dissolve injunction was proper. - Trial court did not abuse the court’s discretion in denying a hospital’s motion to dissolve an interlocutory and permanent injunction entered in favor of a group of doctors prohibiting the hospital from limiting the doctors from freely exercising their clinical privileges and practice cardiology at the hospital, despite a resolution by the hospital’s board of directors prohibiting the doctors from exercising the privileges as the prohibition denied the doctors certain procedural protections which could not be ignored when implementing exclusive provider contracts. Satilla Health Servs., Inc. v. Bell, 280 Ga. App. 123, 633 S.E.2d 575, 2006 Ga. App. LEXIS 764 (2006), cert. denied, No. S06C1907, 2006 Ga. LEXIS 731 (Ga. Sept. 18, 2006), cert. denied, No. S06C1906, 2006 Ga. LEXIS 701 (Ga. Sept. 18, 2006). Individual could not complain after the individual agreed to consent order. - Individual could not complain about the denial of a motion for an inter-

locutory injunction because the individual agreed to a consent order enjoining both parties from entering the disputed property. Jackson v. Neese, 276 Ga. App. 724, 624 S.E.2d 139, 2005 Ga. App. LEXIS 1107 (2005), cert. denied, No. S06C0683, 2006 Ga. LEXIS 216 (Ga. Mar. 27, 2006). Improper deactivation of medical practice’s Facebook page warranted injunction. - In a dispute between a vein doctor’s widow and the deceased’s limited liability companies (LLCs), the trial court did not err in finding that the widow caused Facebook to de-activate The Vein Guys Facebook page and that the LLCs would suffer irreparable harm if it were not reactivated, resulting in an interlocutory injunction. The record showed a significant drop in new patients following the deactivation of the Facebook page and that even a 5 percent decrease cost the practice over $60,000 per month. Davis v. VCP South, LLC, 297 Ga. 616, 774 S.E.2d 606, 2015 Ga. LEXIS 488 (2015). Extension of interlocutory injunction in medical malpractice case. Trial court did not abuse the court’s discretion in denying a medical practice’s request to extend an interlocutory injunction as a doctor relied on the expiration of the injunction to lease, staff, and outfit an office and had patients scheduled for surgery after the injunction expired; the practice received the injunction it requested and was barred by laches from obtaining additional relief in the form of an extension of the injunction. Suburban Neurosurgical Specialists, P.C. v. Jimenez, 270 Ga. App. 578, 608 S.E.2d 256, 2004 Ga. App. LEXIS 1535 (2004). Injunction on car assessment. Trial court did not abuse the court’s discretion in entering an interlocutory injunction to preserve the status quo pending an adjudication on the merits because the appellees were likely to succeed on the merits, even if the appellees did not defeat the DeKalb County Tax Commissioner’s claims, as the appellees sought a declaration that ad valorem taxes on the same cars were not owed twice and it was most unlikely that relief of that nature would be denied. Scott v. Prime Sales & Leasing, Inc., 276 Ga. App. 283, 623 S.E.2d 167, 2005 Ga. App. LEXIS 1229 (2005), cert.

denied, No. S06C0525, 2006 Ga. LEXIS 279 (Ga. Apr. 25, 2006). Injunction in contractor’s case. Trial court did not improperly rely solely on the court’s determination that an unsuccessful bidding contractor would be unlikely to prevail on the merits of its suit in denying the contractor’s petition for an interlocutory injunction and vacation of its temporary restraining order as: (1) a school board acted within its powers in accepting, albeit late, the lowest bidder’s list of subcontractors; and (2) the board was authorized to find that the bid provision requiring that a list of subcontractors be provided with a bid was immaterial and could be waived. R. D. Brown Contrs., Inc. v. Bd. of Educ. of Columbia County, 280 Ga. 210, 626 S.E.2d 471, 2006 Ga. LEXIS 112 (2006). Given the highly competitive nature of the asphalt industry in the State of Georgia, the trial court did not err in permanently enjoining the Department of Transportation from giving unredacted copies of documents, which contained trade secrets and confidential technical specifications relating to the mix design, to a competitor of a group of contractors; further, the public could ascertain whether a contractor’s asphalt product met DOT requirements by examining information on the forms, which was not included in the trial court’s injunction, and the records did not fall within the exception to Open Records Act disclosure because the contractors were not required by law to submit the information to the DOT. Douglas Asphalt Co. v. E. R. Snell Contr., Inc., 282 Ga. App. 546, 639 S.E.2d 372, 2006 Ga. App. LEXIS 1458 (2006), cert. denied, No. S07C0498, 2007 Ga. LEXIS 140 (Ga. Feb. 5, 2007). Injunctions in homeowners’ association cases. As a trial court’s order showed that although the trial court entered the injunction because of a resident’s admissions, the court exercised the court’s discretion in crafting its terms, and the injunction was not improper. Le v. Shepherd’s Pond Homeowners Ass’n, 280 Ga. App. 36, 633 S.E.2d 363, 2006 Ga. App. LEXIS 741 (2006), cert. denied, No. S06C1894, 2006 Ga. LEXIS 805 (Ga. Oct. 2, 2006). Injunction on use of property. In a case in which the trial court found that

the appellant altered its lot, for the purpose of operating a used car business, creating an artificial increase in the water flowing onto the appellee’s property, the decision to grant an injunction, requiring the appellant to, in part, complete a newly proposed engineering plan and barring the appellant from parking cars in the rear portion of the lot, was not an abuse of discretion under O.C.G.A. § 9-5-8; the trial court reasonably balanced the appellant’s interest in operating the appellant’s business and the appellee’s interest in having the appellee’s property free from artificial runoff. Menzies v. Hall, 281 Ga. 223, 637 S.E.2d 415, 2006 Ga. LEXIS 924 (2006). Because the first two residential property owners presented testimonial and photographic evidence that the third property owner’s act of pumping water from the pond to irrigate that owner’s lawn lowered the water level, there was some evidence on which the trial court based the court’s ruling prohibiting the third property owner from pumping water from the community pond, and the trial court did not abuse the court’s discretion in issuing the injunction. Jones v. Morris, 325 Ga. App. 65, 752 S.E.2d 99, 2013 Ga. App. LEXIS 961 (2013). Injunctions in employment situations. There was no abuse in denying an employer’s motions for temporary and permanent injunctions to prevent its employee from violating a covenant not to compete, as the covenant contained restrictions that went further than necessary to achieve the employer’s business interest, and unreasonably restricted the employee, as well as the public’s right to choose the services the public preferred, which made the covenant overbroad and therefore unenforceable. Beacon Sec. Tech. v. Beasley, 286 Ga. App. 11, 648 S.E.2d 440, 2007 Ga. App. LEXIS 686 (2007). Trial court erred, in part, by ordering an interlocutory injunction prohibiting a former employee from working in an executive capacity for a particular competitor of the former employer for one year based on the inevitable disclosure doctrine because a stand-alone claim under the doctrine, untethered from the provisions of Geor-

Application (Cont’d) gia’s trade secret statute, O.C.G.A. § 101-760 et seq., was not cognizable in Georgia. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702, 2013 Ga. LEXIS 414 (2013). Injunctions in religious organizations. No abuse in granting a second faction’s motion for an interlocutory injunction to restrain the first faction from attempting to act on behalf of a Vietnamese Buddhist Temple, incorporated as a nonprofit Georgia corporation, or from holding themselves out as officers, directors, or agents of the Temple as: (1) the Temple’s articles of incorporation clearly allowed it to have members; and (2) the court was authorized to find that all members of the Temple were given the requisite notice of the June 2004 meeting, and that more than 50 percent of the members appeared at the meeting and voted unanimously to elect the second faction to the board. Nguyen v. Tran, 287 Ga. App. 888, 652 S.E.2d 881, 2007 Ga. App. LEXIS 1118 (2007). Injunctions in insurance dealings. In a breach of contract action between an insurer and an agency, the trial court did not abuse the court’s discretion in granting an interlocutory injunction to the agency as, after a balancing of the equities in the agency’s favor, the record supported the finding that the insurer conducted itself, to the agency’s detriment, as though arbitration of the dispute had been completed and it had been absolved from complying with its post-termination obligations under the underlying agency agreement between the parties. Cotton States Mut. Ins. Co. v. Stephen Brown Ins. Agency, Inc., 290 Ga. App. 660, 660 S.E.2d 445, 2008 Ga. App. LEXIS 390 (2008), cert. denied, No. S08C1321, 2008 Ga. LEXIS 687 (Ga. Sept. 8, 2008). Interlocutory injunction was proper against a for-profit health care insurance company that had allegedly pirated a nonprofit health care sharing ministry’s customers and funds after termination of the parties’ licensing contract; the ministry’s loss of status as an Affordable Care Act, 42 U.S.C. § 18021 et seq., approved ministry would constitute irreparable harm. Aliera

Healthcare, Inc. v. Anabaptist Healthshare, 355 Ga. App. 381, 844 S.E.2d 268, 2020 Ga. App. LEXIS 319 (2020). Injunction when contest over medical professional and restrictive covenants. In a case in which a doctor appealed a trial court’s grant of a medical practice’s motion for a temporary injunction on the practice’s claim that the doctor violated the non-competition provisions of the doctor’s employment agreement with the group when the doctor left the group, the doctor unsuccessfully argued that the trial court erred in granting injunctive relief because the group had: (1) no legitimate business interest in enforcing the restrictive covenants; (2) released the doctor from the restrictive covenants; and (3) consented and requested that the doctor practice neurosurgery in violation of the restrictive covenants. The trial court did not abuse the court’s discretion in finding that the equities weighed in favor of the group and that the status quo of not having competition by the doctor within the restricted area was preserved by the order. Pittman v. Coosa Med. Group, P.C., 300 Ga. App. 529, 685 S.E.2d 753, 2009 Ga. App. LEXIS 1145 (2009). Injunctions concerning cemeteries. Trial court did not manifestly abuse the court’s discretion by entering a permanent injunction preventing a cemetery group from implementing a rule established by a private cemetery owner to prohibit the use of concrete vaults in its cemeteries. The rule violated the Georgia Cemetery and Funeral Services Act of 2000, O.C.G.A. § 10-14-1 et seq., because the rule was not reasonable within the context of O.C.G.A. § 10-14-16(b). Savannah Cemetery Group, Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 704 S.E.2d 858, 2010 Ga. App. LEXIS 1126 (2010). Preliminary injunction properly granted. - Trial court did not abuse the court’s discretion in issuing a preliminary injunction under O.C.G.A. § 9-5-8 preserving the status quo and enjoining the sale of a dialysis center to a prospective purchaser since: (1) the doctor had given a buyer an option and a non-compete clause covering the center as part of an asset sale of a dialysis center partially owned by the

doctor’s wife; (2) the non-compete clause was properly examined using either the least restrictive scrutiny applicable to sales of assets or the mid-level scrutiny applicable to professional contracts; (3) the duration of the non-compete, the term of the agreement plus two years following its termination, was reasonable; (4) the dialysis centers were within the restricted area; and (5) the scope of activity restricted was reasonable as the doctor was not restricted from practicing nephrology, only in operating a dialysis center in direct competition with the buyer. Martinez v. DaVita, Inc., 266 Ga. App. 723, 598 S.E.2d 334, 2004 Ga. App. LEXIS 361 (2004). Interlocutory injunction on taxation. On an appeal filed pursuant to O.C.G.A. § 5-6-34(a)(4) from an order enjoining a city from imposing a tax against a utility pursuant to an ordinance, the appeals court found that the interlocutory injunction was erroneously ordered, given that the ordinance had not yet posed any imminent danger to that utility’s financial interest, but, only a demand for the tax had been issued. City of Willacoochee v. Satilla Rural Elec. Mbrshp. Corp., 283 Ga. 137, 657 S.E.2d 232, 2008 Ga. LEXIS 140 (2008). Injunctions in franchise agreements. In a dispute between a car dealership franchisor and a franchisee that sought to acquire another dealership, the franchisor’s right of first refusal under O.C.G.A. § 10-1-663.1 was not subject to the requirements of the Transfer Statute, O.C.G.A. § 10-1-653; the two statutes operated independently, and the trial court erred in granting an interlocutory injunction to the franchisee. Nissan N. Am., Inc. v. Walker-Jones Nissan, LLC, 345 Ga. App. 447, 812 S.E.2d 130, 2018 Ga. App. LEXIS 215 (2018). Injunction for oral agreement on property purchase. In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner’s request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. How-

ever, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238, 656 S.E.2d 568, 2008 Ga. App. LEXIS 53 (2008). Trial court properly granted permanent injunction to enforce restrictive covenant. - Trial court properly issued a permanent injunction against a homeowner based on that homeowner’s violation of a restrictive covenant by erecting a shed on the subject property because: (1) the shed was not constructed with the same material and color as the exterior of residence; (2) the structure clearly violated the covenant; and (3) enforcement of the covenant had not been waived. Glisson v. IRHA of Loganville, Inc., 289 Ga. App. 311, 656 S.E.2d 924, 2008 Ga. App. LEXIS 86 (2008). Denial of injunction in condemnation proceeding upheld. - Trial court properly denied the property owner’s injunction motion to enjoin the condemnation proceeding because the owner was not precluded from pursuing relief on a claim that the nuisance of the landfill damaged the value of the remainder of the property, but did err by finding that the motion to enjoin the county from contaminating the property was moot since payment of just compensation for the buffer did not moot the remainder of the owner’s claims in the inverse condemnation action. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576, 2019 Ga. App. LEXIS 531 (2019), cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. May 4, 2020), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. May 4, 2020). Temporary restraining order granted when danger of dissipating assets. - If the danger of dissipating assets before an interlocutory hearing can be had is great, the court in the exercise of sound discretion may, without notice, grant a temporary restraining order or appoint a temporary receiver in order to

Application (Cont’d) preserve the status quo until the interlocutory hearing. Edwards v. United Food Brokers, Inc., 195 Ga. 1, 22 S.E.2d 812, 1942 Ga. LEXIS 686 (1942). Given evidence of a currency importer’s ownership interest in the business assets and website managed by a contractor, and the contractor’s threats to do harm to the website and the importer’s business, under O.C.G.A. § 9-5-8, it was not an abuse of discretion to grant a preliminary injunction placing control of the assets in the importer. Grossi Consulting, LLC v. Sterling Currency Group, LLC, 290 Ga. 386, 722 S.E.2d 44, 2012 Ga. LEXIS 76 (2012). Dissolving temporary restraining order to allow bank foreclosure proceeding. - Trial court did not abuse the court’s discretion by dissolving a temporary restraining order and allowing a bank to proceed with the bank’s foreclosure action as it was within the trial court’s discretion to condition the extension of injunctive relief upon the mortgagor’s placement of an amount of money in escrow reflecting past-due payments on the mortgage, which the mortgagor declined to do. Morgan v. U. S. Bank Nat’l Ass’n, 322 Ga. App. 357, 745 S.E.2d 290, 2013 Ga. App. LEXIS 517 (2013). Deposit with court is not tender to lender and injunction inappropriate. - In a wrongful foreclosure action, the trial court erred in enjoining the lender’s foreclosure proceedings because the borrowers failed to tender the amount owed under the matured home equity line of credit (HELOC) agreement to the lender in order to avoid foreclosure. Deposit of the funds in the court’s registry did not constitute a tender to the lender. Oconee Fed. S & L Ass’n v. Brown, 349 Ga. App. 54, 825 S.E.2d 456, 2019 Ga. App. LEXIS 109 (2019). Modification of injunction not granted when no justification shown. - Petition to modify an interlocutory injunction cannot be granted in the absence of a meritorious showing that such modi-

fication should be made. Kelley v. Kelley, 228 Ga. 639, 187 S.E.2d 284, 1972 Ga. LEXIS 872 (1972). No adequate remedy at law. - Because the pension funds boards of trustees decided to hire a third party administrator to administer its funds and outside counsel and because the City of Atlanta disagreed that the boards had the authority to do so and refused to recognize, implement, or cooperate with the boards’ decisions, the trial court was permitted under O.C.G.A. § 9-5-8 to issue a permanent injunction against the city as no adequate remedy at law existed, and the city presented no evidence that the injunction could have potentially devastated the city treasury. City of Atlanta v. S. States Police Benevolent Ass’n, 276 Ga. App. 446, 623 S.E.2d 557, 2005 Ga. App. LEXIS 1282 (2005), cert. denied, No. S06C0609, 2006 Ga. LEXIS 314 (Ga. May 8, 2006). Injunction in commercial tenancy. - It was error to grant a shopping mall’s motion for an interlocutory injunction requiring a tenant to move to another location within the premises. The mall did not show that the status quo was endangered and in need of preservation, and indeed, the injunction did not preserve the status quo as the injunction required the tenant to vacate the tenant’s current space and relocate to a smaller one; furthermore, the trial court failed to give proper consideration to the equities of the parties as there was no evidence of vital necessity or that the mall would suffer irreparable harm if the trial court denied the court’s motion. Hipster, Inc. v. Augusta Mall P’ship, 291 Ga. App. 273, 661 S.E.2d 652, 2008 Ga. App. LEXIS 468 (2008). Injunction preventing annexation of property proper. - When a county sought an interlocutory injunction preventing a city from annexing certain property, the trial court properly denied injunctive relief. The parties presented conflicting evidence regarding both the threat of harm to the county and the validity of the challenged annexation applications. Cherokee County v. City of Holly Springs, 284 Ga. 298, 667 S.E.2d 78, 2008 Ga. LEXIS 740 (2008).

RESEARCH REFERENCES Am. Jur. 2d. 42 Am. Jur 2d, Injunctions, §§ 13 et seq., 275, 297, 324. Am. Jur. Pleading and Practice Forms. 14 Am. Jur. Pleading and Practice Forms, Injunctions, § 4. C.J.S. 43A C.J.S., Injunctions, §§ 19, 24 et seq., 369.

ALR. Power to modify permanent injunction, 68 A.L.R. 1180; 136 A.L.R. 765. Power of equity to require acceptance of damages in lieu of injunctive relief asked, 105 A.L.R. 1381.