In the Supreme Court of Georgia
Decided: May 11, 2015
S15A0362. McHUGH FULLER LAW GROUP, PLLC v.
PRUITTHEALTH-TOCCOA, LLC.
S15A0641. McHUGH FULLER LAW GROUP, PLLC v.
PRUITTHEALTH-TOCCOA, LLC.
HUNSTEIN, Justice.
In these appeals, Appellant McHugh Fuller Law Group, PLLC (“McHugh
Fuller”) challenges both the award of a permanent injunction to Appellee
PruittHealth-Toccoa, LLC (“PruittHealth”) and a subsequent trial court order
excluding certain filings from the appellate record in the original appeal. We
conclude that the trial court did err, both in granting a permanent injunction
following only an interlocutory hearing and in its exclusion of filings from the
appellate record. Accordingly, we vacate the award of the permanent injunction,
reverse the order designating the appellate record, and remand for further
proceedings.
On April 17, 2014, McHugh Fuller, a Mississippi-based law firm, ran a
full-page advertisement in a Northeast Georgia local newspaper, The Toccoa
Record, noting that Heritage Healthcare of Toccoa, a Stephens County nursing
home owned by PruittHealth, had been cited by the government for deficiencies
in the care of its residents and inviting those suspecting abuse or neglect of a
loved one at the facility to call the law firm. On the following day, PruittHealth
filed a verified complaint for temporary and permanent injunctive relief under
the Georgia Uniform Deceptive Trade Practices Act (UDTPA), OCGA § 10-1-
373 (a)1, and petitioned ex parte for a temporary restraining order. That same
day, the Stephens County Superior Court entered a temporary restraining order
enjoining McHugh Fuller from publishing, in any newspaper or other media,
advertisements regarding PruittHealth utilizing the language of the April 17 ad.
The order also scheduled a hearing a few weeks thereafter to “determine
whether injunctive relief should continue.”
At the hearing, held on May 13, 2014, PruittHealth presented testimony
that the government citation referenced in the ad arose from a 2012 survey
report; that the cited deficiencies had been resolved immediately; and that a
more recent survey report had found no such deficiencies. The facility’s
administrator also testified that the ad had caused severe damage to the facility’s
1
Under this Code section, “[a] person likely to be damaged by a deceptive trade
practice of another may be granted an injunction against it under the principles of
equity and on terms that the court considers reasonable.”
2
reputation, noting that the number of new admissions to the nursing home had
been cut approximately in half since the ad ran. For its part, McHugh Fuller
presented testimony to substantiate and justify the specific language used in the
ad. The firm also presented expert testimony from an Emory University School
of Law ethics professor, who opined that the ad was not false or deceptive.
At the conclusion of the hearing, the trial court stated that it found the ad
to be deceptive and thus in violation of the UDTPA. The court stated: “I will
grant the relief and I do find that the factors requiring injunctive relief have been
met and satisfied.” The court further held that “anywhere this ad is placed,
whether it’d be on the Internet or in the . . . local paper, is in violation of the
[UDTPA].” After directing PruittHealth’s counsel to draft an order effectuating
its ruling, the court asked whether the parties had any other matters to discuss,
and counsel for both parties responded in the negative, after which the hearing
was adjourned. Thereafter, the trial court signed an order enjoining McHugh
Fuller “from publishing or causing the offending advertisement to be published
in the future” and requiring that McHugh Fuller within 20 days “remove or
cause to be removed at its expense all electronic postings of the advertisement.”
McHugh Fuller thereafter filed a verified answer and a motion to amend
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and/or for reconsideration of the court’s order. In its motion, McHugh Fuller
contended, inter alia, that the order was erroneous to the extent it purported to
constitute a final order granting permanent injunctive relief, because McHugh
Fuller was not on notice at the time that the court was considering anything
other than interlocutory relief. The trial court, however, never ruled on these
motions, and McHugh Fuller thus subsequently filed a notice of appeal.
In its notice of appeal, McHugh Fuller requested that the clerk “omit
nothing from the record.” PruittHealth then submitted its own designation of
the record, in which it requested the court include only those items submitted to
the court through and including June 2, 2014, the date the injunction was
entered, thereby excluding the verified answer, motions, and supporting exhibits
McHugh Fuller had filed with the trial court after that date. Following a hearing
pursuant to OCGA § 5-6-41 (f)2, the trial court held that the appellate record
would not include materials submitted after June 2 because such items were not
“before the Court for consideration at the time of the trial . . . or submitted prior
2
Under this Code section, “[w]here any party contends that the transcript or
record does not truly or fully disclose what transpired in the trial court and the parties
are unable to agree thereon, the trial court shall set the matter down for a hearing with
notice to both parties and resolve the difference so as to make the record conform to
the truth.”
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to the entry of the final Order.” McHugh Fuller filed a second notice of appeal
as to this ruling. This Court thereafter consolidated both appeals.
CASE NO. S15A0362.
1. The trial court erred by granting permanent injunctive relief at the
conclusion of the interlocutory hearing without giving McHugh Fuller clear
notice at the time that it was doing so. Under the Civil Practice Act, once an ex
parte temporary restraining order has been issued, the trial court then must
schedule an interlocutory hearing “at the earliest possible time,” OCGA § 9-11-
65 (b), which is “to be followed by a trial on the merits.” Smith v. Guest Pond,
Inc., 277 Ga. 143, 144 (1) (586 SE2d 623) (2003) (citing OCGA § 9-11-65).
Accordingly, “[t]he general rule is that entering permanent relief after an
interlocutory hearing is improper.” Georgia Kraft Co. v. Rhodes, 257 Ga. 469,
471 (1) (360 SE2d 595) (1987).
Under certain circumstances, the CPA does permit a trial court, either
“[b]efore or after the commencement of” the interlocutory hearing, to “order the
trial of the action on the merits to be advanced and consolidated with the
[interlocutory] hearing.” OCGA § 9-11-65 (a) (2); see also Georgia Kraft Co.,
257 Ga. at 471. However, the court’s authority to so consolidate is “‘tempered
5
by the due process principle that fair notice and an opportunity to be heard must
be given the litigants before the disposition of a case on the merits.’” Regency
Club v. Stuckey, 253 Ga. 583, 586 (3) (324 SE2d 166) (1984). See, e.g., Wang
v. Liu, 292 Ga. 568 (2) (740 SE2d 136) (2013) (vacating award of permanent
injunction entered after interlocutory hearing due to lack of notice that
permanent relief would be considered); Smith, 277 Ga. at 144-145 (vacating
award of permanent injunction entered after initial hearing due to lack of notice
such relief would be considered); Mosley v. HPSC, Inc., 267 Ga. 351 (2) (477
SE2d 837) (1996) (vacating denial of permanent injunction at interlocutory
hearing where neither parties nor court mentioned consolidation).
Here, while McHugh Fuller clearly had notice of the interlocutory hearing,
it had no notice that the trial court intended at that hearing to consider the merits
of permanent injunctive relief. The court’s scheduling order made no reference
to a final hearing on the merits. See Smith, 277 Ga. at 144-145 (where
scheduling order issued following grant of TRO failed to specify that hearing
would address merits of permanent injunction, appellant did not receive fair
notice, and entry of permanent injunction was erroneous). In its briefing and
argument to the trial court, McHugh Fuller cited the standard for interlocutory
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relief, indicating its belief that such relief was the sole issue under consideration.
Moreover, at no time during the May 13 hearing did the trial court expressly
state that it intended to make a final ruling on the merits of a permanent
injunction; rather, it referred merely to “injunctive relief” without specifying
whether it was intended as temporary or permanent. See Mosley, 267 Ga. at 352
(final ruling improper where “neither the parties nor the trial court agreed upon,
or even mentioned, consolidation”). In further indication of the lack of due
notice of consolidation, McHugh Fuller’s counsel objected to PruittHealth’s
proposed order on the basis that it referred to final rather than interlocutory
relief, which, McHugh Fuller contended, had not been before the court for
consideration at the May 13 hearing.
PruittHealth nonetheless contends that McHugh Fuller acquiesced in the
entry of permanent injunctive relief by failing to object when the trial court
pronounced its ruling at the conclusion of the May 13 hearing. We have held
that “‘when there is notice of an interlocutory hearing, the court may determine
the issues on their merits after the interlocutory hearing where there is no
objection or where the parties have acquiesced.’” Gwinnett County v. Vaccaro,
259 Ga. 61, 62 (1) (376 SE2d 680) (1989); see also Dortch v. Atlanta Journal,
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261 Ga. 350 (1) (405 SE2d 43) (1991) (no error in rendering final ruling on the
merits following interlocutory hearing where trial court expressly confirmed it
was doing so and parties did not object); Georgia Kraft Co., 257 Ga. at 471 (no
error in rendering final ruling on the merits following interlocutory hearing
where trial court informed parties during the hearing that it might do so);
Wilkerson v. Chattahoochee Parks, Inc., 244 Ga. 472 (2) (260 SE2d 867) (1979)
(no error in rendering final ruling on the merits following interlocutory hearing
where appellants did not object thereto). However, a party cannot effectively
acquiesce to a course of action, or be held accountable for a failure to object, if
it is unaware that such a course is being undertaken. See Dunaway v. Windsor,
197 Ga. 705, 709 (30 SE2d 627) (1944) (“[a]cquiescence . . . implies a
knowledge of those things which are acquiesced in”); Carter v. Wyatt, 113 Ga.
App. 235, 240 (1) (148 SE2d 74) (1966) (“‘(o)ne cannot acquiesce in something
of which he has no knowledge’”). Accordingly, in the absence of any express
or otherwise unambiguous notice3 that the trial court intended to consider – or
3
Such “otherwise unambiguous notice” might be found, for example, where the
trial court notifies the parties at the outset of the interlocutory hearing of its intent to
resolve the merits of an issue of law. See Regency Club, 253 Ga. at 586 (affirming
trial court’s resolution, after interlocutory hearing, of constitutionality of ordinance,
where trial court “stated several times” at the hearing that it intended to do so and
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was purporting to grant – permanent injunctive relief at the May 13 hearing,
McHugh Fuller’s failure to object at that time did not constitute acquiescence.
The trial court thus erred in granting permanent injunctive relief at this stage of
the proceedings. See Wang, 292 Ga. at 573; Smith, 277 Ga. at 144-145;
Mosley, 267 Ga. at 352.
CASE NO. S15A0641.
2. We also find error in the trial court’s conclusion that the appellate
record in McHugh Fuller’s initial appeal should not include any filings in the
trial court submitted after the entry of the permanent injunction on June 2, 2014.
Our Appellate Practice Act requires the appellant to specify in the notice of
appeal “those portions of the record to be omitted from the record on appeal.”
OCGA § 5-6-37. Thus, it is the appellant that is charged with the duty to
designate the appellate record. See Christopher J. McFadden et al., Ga.
Appellate Practice, § 18:2 (updated Nov. 2014). Once such designation has
been made, the appellee is permitted to designate for inclusion any materials the
appellant has requested be omitted. OCGA § 5-6-43 (a). Where there is a
parties were given full opportunity to present evidence at hearing and brief issues
thereafter).
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dispute over the contents of the appellate record, the trial court is required to
hold a hearing to resolve the dispute “so as to make the record conform to the
truth.” OCGA § 5-6-41 (f).
From these provisions, we discern no support for the notion of omitting
from the appellate record any portion of the trial court clerk’s record, designated
for inclusion by either the appellant or the appellee, that was filed in the trial
court as of the time the notice of appeal was filed. The statutory scheme
presumes that a complete record will be transmitted to the appellate court unless
the appellant specifically requests otherwise. While this scheme contemplates
requests by the appellee to include portions of the record that the appellant has
designated for exclusion, it does not authorize the appellee to request exclusion
of items the appellant desires to include.
This conclusion comports with the trial court’s duty to ensure that the
record “conform[s] to the truth.” The full “truth” of what transpired in the trial
court necessarily will include all the filings therein prior to the appeal. The
statute recognizes this fact by expressly authorizing the trial court to correct
“omission[s] or misstatement[s],” while making no provision for the elimination
of allegedly extraneous items. OCGA § 5-6-41 (f). Contrary to PruittHealth’s
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contention, the fact that certain filings may not be relevant to the issues on
appeal – for example, as here, filings with new evidence not before the trial
court when it made the ruling being appealed – does not mean that such filings
do not constitute part of the trial record eligible for inclusion in the record on
appeal.4 Indeed, under OCGA § 5-6-41 (h), even papers that have been
disallowed by the trial court may be filed in the record with a notation of
disallowance and “shall become part of the record for purposes of consideration
on appeal”; the statute thus recognizes that even materials not considered by the
trial court may properly comprise part of the appellate record.
For these reasons, we conclude that the trial court erred in ordering the
trial court clerk to omit from the appellate record all submissions filed after June
2, 2014.
Judgment in Case No. S15A0362 vacated, and case remanded. Judgment
in Case No. S15A0641 reversed. All the Justices concur.
4
The determination of relevancy for appeal purposes is, in any event, better left
to the appellate court.
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