Etheredge v. All American Hummer Limousines, No. S98A0456

• Decision Date: 13 April 1998
• Docket Number: No. S98A0458., No. S98A0456
• Citation: 269 Ga. 436,498 S.E.2d 60
• Parties: ETHEREDGE v. ALL AMERICAN HUMMER LIMOUSINES, INC. ALL AMERICAN HUMMER LIMOUSINES, INC. v. ETHEREDGE.
• Court: Georgia Supreme Court

498 S.E.2d 60

269 Ga. 436

ETHEREDGE v. ALL AMERICAN HUMMER LIMOUSINES, INC.

ALL AMERICAN HUMMER LIMOUSINES, INC. v. ETHEREDGE.

Nos. S98A0456, S98A0458.

Supreme Court of Georgia.

April 13, 1998.

Reconsideration Denied May 14, 1998.

Carl Richard Langley, Langley & Lee, LLC, Albany, Robert E. Flournoy III, Marietta, for George Etheredge.

Van John Kottis, Bryan Michael Hausner, The Kottis Law Firm, Kenneth I. Sokolov, Michael Sard, Fine & Block, Atlanta, Charles A. Evans, Marietta, for All American Hummer Limousines, Inc.

HUNSTEIN, Justice.

In December 1995 George Etheredge and Jerry Simmons started All American Hummer Limousines, Inc. (All American), a limousine service which utilized a black Hummer limousine as its centerpiece vehicle. Etheredge and Simmons each held a one-half interest in the company. In April 1997 Etheredge purchased a white Hummer limousine to utilize in a new corporation, Hummer Limousines, Inc. Simmons thereafter brought suit against Etheredge alleging, inter alia, breach of fiduciary duty. On May 6, 1997, the trial court ordered the sale of All American's assets, and included among those assets the white Hummer used by Hummer Limousines. The trial court also enjoined Etheredge from operating the competitive limousine service. Etheredge appealed that judgment to the Court of Appeals, which transferred the case to this Court where the matter was docketed as Case No. S98A0456. On June 27, 1997, the trial court issued an order modifying the May 6 order and rescinding the injunctive relief entered against Etheredge. The Court of Appeals granted Simmons' interlocutory application to consider the validity of that subsequent order; that matter was also transferred to this Court and docketed as Case No. S98A0458.

1. In Case No. S98A0458 All American contends that the trial court erred by entering the June 27 order because it had no authority to rule on the issue of injunctive relief absent notice and no authority to modify its May 6 order after the docketing of Etheredge's appeal on June 13, 1997. Under OCGA § 9-11-62(c),¹ the trial court was authorized to modify its May 6 order so as to protect the rights of either party notwithstanding the pending appeal. See Stephens v. Geise, 226 Ga. 639, 642, 176 S.E.2d 923 (1970). There was at least some credible evidence that the white Hummer was the personal property of Etheredge and was purchased with Etheredge's individual assets after both All American and Simmons were provided the opportunity to join in the purchase. In addition, the June 27 order continued to protect Simmons' interests, in that Etheredge was required to "immediately report all income,...