295 Ga. 150
FINAL COPY


  S14A0157. ABEL & SONS CONCRETE, LLC et al. v. JUHNKE et al.


      NAHMIAS, Justice.

      This appeal stems from a dispute over equipment owned by Tri-State

Concrete Contracting, an unincorporated sole proprietorship. Abel Ramirez

worked at Tri-State, and when its proprietor, DuWayne Juhnke, died, Ramirez

entered an agreement with Mr. Juhnke’s wife, Joyce Juhnke, to continue

operating Tri-State and to make payments to purchase Tri-State and its

equipment.

      After making some payments, Ramirez stopped, opened Abel & Sons

Concrete, LLC, and started doing Tri-State’s jobs with Tri-State’s equipment

without paying for the use of that equipment. In response, Mrs. Juhnke and the

administrator of Mr. Juhnke’s estate (“Appellees”) sued Ramirez and Abel &

Sons (“Appellants”) along with Dollar Concrete Construction Company, the

company that was storing the equipment and allegedly letting Appellants use it

without Appellees’ permission. The complaint, filed in February 2012, asserted

several claims including conversion, unjust enrichment, and breach of contract;
Appellees requested money damages but did not seek temporary or permanent

injunctive relief to prevent Appellants from using the equipment, which

Appellants apparently continued to use.

      In early 2013, Appellees and Dollar filed cross-motions for summary

judgment; the motions made no mention of injunctive relief. Dollar requested

oral argument, and on May 8, 2013, the trial court sent notice of a hearing on the

summary judgment motions to all parties, including Appellants, who had not

filed anything in connection with the motions. The hearing was held on June 6;

there is no transcript. In an order filed on June 21, the trial court denied both

motions for summary judgment, explaining that it is undisputed that Dollar does

not own the equipment and that Appellees do not have access to it, but there is

a genuine factual dispute as to the ownership of the equipment and whether

Dollar had refused Appellees’ demand for its return. The order states that “[a]ll

interested parties and/or counsel were present” at the June 6 hearing, but it is

undisputed that Appellants and their counsel did not attend.

      The order also noted that although Appellees and Dollar had asked at the

hearing for time to resolve how Dollar would relinquish the equipment, they had

not presented a consent order, so the court sua sponte required Dollar to place

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the equipment outside its locked storage yard within 30 days and after giving

seven days’ notice to Appellants and Appellees to allow them to “arrange to

retrieve and store same pending determination as to ownership.” The order

further directed Appellants and Appellees not to “transfer, damage, or use the

property pending determination as to ownership” and to equally share the costs

of moving and storage. These portions of the order comprised, in substance, an

interlocutory injunction, and Appellants filed this appeal challenging the

injunction against them on the ground that they were not given notice before the

court imposed it.1 That complaint has merit.

       “The granting and continuing of injunctions shall always rest in the sound

discretion of the judge, according to the circumstances of each case. . . .”

OCGA § 9-5-8. However, “[n]o interlocutory injunction shall be issued without

notice to the adverse party.” OCGA § 9-11-65 (a) (1). Appellees argue that the

notice requirement was satisfied here because Appellants were served with the

cross-motions for summary judgment and given notice of the hearing on those


       1
          Interlocutory injunctions may be immediately appealed. See OCGA § 5-6-34 (a) (4).
Appellants directed their appeal to the Court of Appeals, which properly transferred it to this Court
on the ground that the issue on appeal “involves the legality or propriety of equitable relief.”
Beauchamp v. Knight, 261 Ga. 608, 609 (409 SE2d 208) (1991). See Ga. Const. of 1983, Art. VI,
Sec. VI, Par. III (2).

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motions that precipitated the court’s issuance of the injunction. Appellees

contend that Appellants should have gleaned from the fact that ownership of the

equipment was the only disputed issue in the case that an injunction was a

possible result of the summary judgment motions, and that Appellants’ failure

to respond to the motions and to attend the hearing waived any objection to the

injunction imposed after the hearing.

      It is true that the summary judgment motions indicated that ownership of

the equipment was in dispute. In its motion, Dollar argued, in part, that it was

entitled to summary judgment as to Appellees’ allegations of conversion

because Ramirez was a one-half owner of the equipment and therefore allowed

to use it. In their cross-motion, Appellees also focused on the issue of

ownership, alleging that they were the rightful owners of the equipment and that

Dollar had kept the equipment without authorization and refused their demands

to return it. In its reply brief, however, Dollar changed tack and argued that it

was entitled to summary judgment even if Appellees were the sole owners of the

equipment because Dollar had never allowed Ramirez to use the equipment and

did not, in fact, control the comings and goings of the equipment.

      Thus, the summary judgment motions did not clearly require the trial court

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to decide who owned the equipment, much less how the equipment should be

handled during the litigation. Moreover, none of the summary judgment filings

mentioned equitable relief, Appellees had not requested injunctive relief in their

complaint, and the hearing notice — which was titled “Notice of Summary

Judgment Hearing” and informed the parties that the cross-motions were set “for

hearing and argument” — similarly gave no indication that an injunction was

contemplated as a result of the hearing. In short, neither the parties nor the court

had raised the issue of injunctive relief before the hearing, and Appellants

therefore had no reason to expect that the hearing would lead to an interlocutory

injunction against them. See Smith v. Guest Pond Club, Inc., 277 Ga. 143, 144-

145 (586 SE2d 623) (2003) (holding that the grant of a permanent injunction

was improper because notice of a hearing on interlocutory relief did not

constitute fair warning that the hearing would concern permanent injunctive

relief).

       Because the summary judgment hearing was not transcribed, we do not

know how the possibility of an interlocutory injunction arose, although the

court’s order indicates that it was discussed by counsel for Appellees and Dollar.

Those parties thus may have had some notice that an injunction might follow the

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hearing, and some opportunity to present evidence and arguments as to the

propriety and scope of such equitable relief, but Appellants did not, as they did

not, and were not required to, attend the hearing. Compare Consortium Mgmt.

Co. v. Mutual America Corp., 246 Ga. 346, 347-348 (271 SE2d 488) (1980)

(concluding that the defendant had the required notice of the injunction because

he had notice of and representation at the hearing on plaintiff’s action

requesting, among other things, an injunction).

      Because Appellants did not have proper notice of the interlocutory

injunction, the trial court abused its discretion in imposing it against them, and

the portion of the court’s order issuing equitable relief binding Appellants must

be vacated. On remand, the trial court retains discretion to enter an interlocutory

injunction if needed to safeguard the equipment at issue, but only after

providing proper notice and the opportunity for an evidentiary hearing to all

affected parties.

      Judgment vacated in part and case remanded. All the Justices concur.



                             Decided May 5, 2014.

      Equity. Gwinnett Superior Court. Before Judge Conner.

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      Anderson & Ealick, James M. Anderson III, L. Spencer Gandy, Jr., for
appellants.
      Jacobs & King, Scott R. King, Steven M. Lefkoff, for appellees.




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