295 Ga. 150

FINAL C OPY

S14A0157. ABEL & SONS CONC RETE, LLCet al. v. JUHN KE et al. NAHMIAS, Justi ce. T his appeal stem s from a dispute over equipm ent owned by Tri-State Concrete Contrac ting, a

n unincorpo rated s ole pro pr ietorship . Abel Ramirez worked at Tri -State , and wh en its pro prietor, DuWayne Juhnk e, died, Ramirez entered an agreem ent w ith Mr. Juhnke’s w ife, Jo yce J uhnke, to continue operati ng Tri-State and to make paym ents to purchase Tri-State a nd its equipment. After making some pa

yments, Ra

mirez stopped, opene d Abel & S ons Concrete, LLC, and starte d doing Tri-State’s jobs with Tri-Sta te ’s equipm ent without paying for th e use of that equi pment. In respons e, Mrs. Juhnke a nd the admin istrato r

of Mr. Juhn ke’s es tate (“Appellees”) sued Ra mirez and Abe l & Sons (“Appell ants”) along with Dolla r Conc rete C onstructi on Compa ny, the compa nythat was storing the equipme nt and allegedly

letting Appellants use it without Appellees’ permissi on. The complaint, fil edin Februa ry2012, asserted several claims including conversion, unjust enrichment, and breach of contrac t;2

Appellees requested money damages but did n ot seek tempo rary or perma nent injuncti ve relief to prevent Appella nts from usin g the e quipment, which Appellants app arently continu ed to use. In early 2013, Appe llees and Doll ar file d cross-motions for summ ary judgment; the m otions m ade no m ention of injuncti ve relief. Dollar requested oral argument, and on

May 8, 2013, the

trial c ourt sent

noticeof a hea

ring on the

summ ary judgme nt moti ons to all

partie s, incl

ud ing A ppella

nts, who h ad not filed anything in conne ction wi th the m otions. The hea ring was held on Jun e 6; there is no transcript. In an order filed on June 21, the tr ial c ourt denied both motions for summary judgment, exp laining that it is undis puted that Do llar does not own the e quipme nt and tha t Appell ees do no t have access to it, but there is

a genuine factual d ispute as to th e o wners hip of the equ ipment and whether Dollar had refuse d Appell ees’ demand f or its re turn. Th e order states that “[a] ll interested partie s and/or counsel were present” at the June 6 hearing, but it is undispu ted that Appellan ts and their cou nsel did no t attend. The order also no ted that a lthough Appelle es and D ollar ha d asked a t the hearing for ti me to resolv e how Dol lar woul d relinqui sh the equipment, they had not present ed a

consent ord er, so the court s ua sponte requ ired Dollar to place1 Interlocutory injunctions may be immediately appealed. See OCGA § 5-6-34 (a) (4). Appellan ts directed their appeal to the Court of A ppeals, w hich prop erly

transfe rred 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 ) (1 991 ). S ee G a. C ons t. of 1 983 , Ar t. VI, Sec. VI, Par. I

II (2). 3 the equi pme nt outside

its lock ed storage ya

rd within 30 days a

nd afte r giving

seven days’ n otice to Appell ants an dAppelle es to allow them to “arrange to retrie ve and store same pending determination as to own ership .” The order further directe d Appel lants a nd Appell ees not

to “trans fer, da

mage , or use the property pending de term ination as to ownership” and to equally share the costs of moving a nd storage . Thes e portion s of the ord er comprised, in su bstance, an interloc utory injuncti on, and A

ppella nts file d this ap peal c hallen ging the injuncti on agains t them

on the grou

nd that th ey we re not giv en notic e before the court imposed it. 1 That complaint has merit. “The granting and

continui ng of injunc tions sha ll alwa ys rest in the sou nd discre tion of the judg e , according to th e circumstances of each case. . . .” OCGA§ 9-5-8. However, “[n]o interlocutory injunction shall be issue d without notice to the a dverse p arty. ” OCG A § 9-11-65 (a) (1). Appelle es argue that the notice require ment w as sati sfied he re bec ause A ppella nts were served with the

cross-m otions for summary judgment and give n notice

of the hea ring on those4

motions that precipitated t he court’s is suance of the inj unction. App ellees contend that Appellants should

have gleaned fro m the factthat own ership of the equipm ent

was the only disputed issue in the c ase that an injunct ion was a possible result of

the sum mary judgme nt moti ons, and t

hat Appe llants’ failure to respond

to the motions and to a

ttend the hearin g waive d any obj ection to the injunctio n imposed after th e hearing. It is true that the summ ary judgment m otions indicated that ownership of the equipm ent wa s in dispute . In its m otion, Do llar a

rgued, in part, that it was entitled to summary judgment as to Appellees’ al legatio ns of conversion becau se Ram irez w as a

one-half own er of the equip ment and therefore allo wed to use it. In their cr oss- mo tion, App ellee s also foc used on the

issue of ownershi p, alleging that th eywere t he rightf ul owners of th e equipment and that Dollar had kept

the equipm ent wit

hout authoriz ation a

nd refuse d their demands to return it. In its reply brief, however, Dollar cha nged tack and argued that it

was entitled to summa

ry judgment even if

Appelle es were the so le owne rs of the equipm ent

because Dollar had n ever allowed Ramirez to use theequipm ent and did not, in fact, control th e comings and goi ngs of th e equipment. Thus, the summary judgmen t m otions did no t clea rly re quire the

trial c ourt5

to decide who owne d t he equipm ent, m uch les s how theequipm ent should be handled during

the litigation. Moreove r, none of the summ ary judgment

filings mentioned equitable relief, Ap pellees had not requested injunctive relie f in their complaint, and thehearin g notice — which was titled “Notice of S umma ry Judgme ntHearing” and inf ormed the parties th at

the cross-m otions we re set “for hearing and arg ument” — similarly gave no in dication that an injunction was contemplated as a re sult of the hearin g. In short, neithe r the pa rties nor the court had raised the issu e of injunct iv e relief before the hearing, and Appellants theref ore had no reason

to expe ct that

the hea ring would l ead to a

n interl ocutory injuncti on agains tthem. See Smithv. Guest Pond Club, Inc. , 277 Ga . 143, 144- 145 (586 SE2d 623) (2003) (holding that th e grant of a pe rmanent in

junction

was improper be c ause notice of a hearin g on inter

locutory relie f did not constitute fair wa

rning that the hea ring woul d conce rn perm anent injunctive relief). Beca us e the summ ary judgment hearin g was not

transc ribed, w e do not know how the po ssibility of an inter locutory

injuncti on arose , altho ugh the court’s order indicates that it was disc ussed by counsel for Appelle es and D ollar. Thosepartie s thus may

have ha d somenoticethat a n injunctionmight f

ollow the6

hea ring, and som e opportuni ty to pre sent ev idence and argu ments as to the proprietyand scop e of such equi table relief, but Ap pellants did not, as they did not, and we re not re quired to, attend the hearing. Compare Consortium Mgmt. Co. v. Mutual A

meri ca Cor

p. , 246 Ga . 346, 347- 348 (271 SE2d 4 88) (198 0 ) (conclu ding that the

defenda nt had the required no tice of the inj unction be cause he had notic e of and representation a t the he aring on p laintif f’s act ion requesting , among other thi ngs, an inju nction). Beca use A ppel lants did

not haveproper notice of t he inte rlocutor

y injuncti on, the trial court abused its disc retion in imposing it agains t them , and the portion of t

he court’s order issuing equitable relie f binding Ap pellan ts must be vacated. On remand, the trial court retains discretion to enter a n interl ocutory injuncti on if n eede d to safeguard the equipment at iss ue, but only after provi ding proper notice a nd the oppor

tunity fo r an evi dentia

ry hea ring to al l affected parties. Judgme nt vaca

ted in pa rt and c ase re mande d. All t he Justic es concur.

Decid ed May

5, 2014. Equity. Gwinne tt Superi or Court. Before Judge Con

ner.7

Anderson & Eali ck, Ja

mes M. A nderson II I, L. S pence r Gandy , Jr. , for appell ants. Jacobs & King, Sc ott R. K

ing, Ste ven M. L efkoff

, for app ellee s.