National Hills v. Donald Thompson

Court of Appeals of the State of Georgia

ATLANTA,_________________ May 07, 2012

The Court of Appeals hereby passes the following order:

A12D0355. NATIONAL HILLS EXCHANGE, LLC, et al. v. DONALD THOMPSON.

National Hills Exchange, LLC and 2701 Partners, LLC filed this application for discretionary appeal from an order of the trial court directing them to open a gate that they had erected to bar access to a parking lot on their property. Under OCGA § 5-6-35 (a) (9), an application for discretionary appeal is required to appeal from a temporary restraining order. But under OCGA § 5-6-34 (a) (4), a party may appeal directly from an interlocutory injunction. The order at issue here is styled as a “Temporary Restraining Order.” However, the order provides that because the defendants had notice of the hearing and appeared and participated in it, the directive to keep the gate open “shall not expire upon the expiration of 30 days,” but instead shall remain in force pending another hearing to be scheduled at a later date. An order granting indefinite injunctive relief is a preliminary injunction, not a temporary restraining order. See OCGA § 9-11-95 (b) (a temporary restraining order “shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes . . .) (emphasis supplied); see also Matrix Financial Svcs. v. Dean, 288 Ga. App. 666 n. 1 (655 SE2d 290) (2007) (trial court order indefinitely extending TRO “is the equivalent of a judgment granting an interlocutory injunction and is directly appealable”). Because the order at issue grants a preliminary injunction, it is directly appealable. Accordingly, this application is GRANTED pursuant to OCGA § 5-6-35 (j). Applicants shall have ten days from the date of this order to file a notice of appeal.

The clerk of the superior court is directed to include a copy of this order in the appeal record transmitted to this Court.

Court of Appeals of the State of Georgia 05/07/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.