Focus Entertainment v. Partridge Greene

• Decision Date: 19 December 2001
• Docket Number: No. A01A2486.,A01A2486.
• Citation: 253 Ga. App. 121,558 S.E.2d 440
• Parties: FOCUS ENTERTAINMENT INTERNATIONAL, INC. et al. v. PARTRIDGE GREENE, INC.
• Court: Georgia Court of Appeals

558 S.E.2d 440

253 Ga. App. 121

FOCUS ENTERTAINMENT INTERNATIONAL, INC. et al. v. PARTRIDGE GREENE, INC.

No. A01A2486.

Court of Appeals of Georgia.

December 19, 2001.

Begner & Begner, Alan I. Begner, Cory G. Begner, Atlanta, Perrotta & Associates, Michael A. Prieto, Cartersville, for appellants.

Alston & Bird, T. Michael Tennant, Elizabeth Bertschi, Daniel N. Esrey, Atlanta, for appellee. ELDRIDGE, Judge.

Focus Entertainment International, Inc., M & S Zbosnik, Inc., Paul Fuller, Eric Clabaugh, and Peachtree Visuals, LLC d/b/a Inserection appeal from the grant of an interlocutory injunction granted to Partridge Greene, Inc., grantor of an outparcel at Gwinnett Place Mall, to enforce a recorded restrictive covenant in the warranty deed prohibiting the sale or display of pornographic materials; operation of any pornographic business, including massage parlors; adult theaters displaying pornographic pictures or films; and adult bookstores dealing in pornographic materials. The Supreme Court of Georgia in its transfer order stated that this case did not implicate freedom of speech under either the state or federal constitutions but involved the construction of a contract restrictive covenant and transferred this case back to this Court for determination. The grant or denial of an interlocutory injunction based on issues of fact rests in the sound discretion of the trial court; therefore, the trial court is affirmed.

On June 24, 1986, PGI and Martin and Sheila Zbosnik entered into a specific restrictive covenant as part of the recorded general warranty deed regarding the purchase of 3522 Satellite Boulevard, Duluth, Gwinnett County. Such restrictive covenant was part of the common scheme used in the development of Gwinnett Place Mall and all surrounding outparcels to protect the property retained by PGI and other owners of property conveyed by it and leaseholders from PGI. The restrictive covenant stated that the property was prohibited from being "used for the sale or display of pornographic material nor for the operation of any pornographic business including massage parlors, adult theatres displaying pornographic pictures or films, adult book stores dealing in pornographic materials," and it empowered PGI to enforce the covenants through an action in law or equity to restrain or enjoin such violation. For fifteen years, the Zbosniks operated a business on two floor levels of the store, Home Video. PGI was never aware that any pornographic materials were either sold or displayed on the premises on the lower level.

In April 2001, the Zbosniks sold Home Video and M & S Zbosnik, Inc. to Inserection but retained the title to the property, which they leased to Inserection. In mid-May 2001, PGI learned through advertisement and other information from Inserection that Inserection intended to operate a pornographic business on the property, which would adversely affect all the development in violation of the restrictive covenant. On May 17, 2001, PGI delivered to Inserection a copy of the restrictive covenant and told it that the sale or display of pornographic materials on the property would be treated as a violation of the restrictive covenants. Despite the warning notice, one week later Inserection was operating a business involving the sale and display of pornography on the premises in violation of the restrictive covenant. On May 24, 2001, PGI gave written notice to the Zbosniks that legal action would follow to enforce the restrictive covenant. On June 8, 2001, PGI instituted this action to enforce the restrictive covenant. On June 8, 2001, a rule nisi issued for an interlocutory injunction evidentiary hearing to be held on June 15, 2001. On June 9, 2001, United Parcel Service delivered to Inserection a copy of the complaint, petition, motion, and rule nisi from PGI, and on June 8, 2001, PGI's counsel talked to Inserection's counsel informing him of the hearing and its purpose. At the hearing, counsel for Inserection admitted in judicio that it had seven days actual notice of the interlocutory injunction evidentiary hearing.

The Zbosniks understood the meaning of the restrictive covenant as to pornography when they entered into the covenant prohibiting the sale or display of pornography on the property. Unrated adult videos generally in the business were understood to be pornographic by the Zbosniks. Mrs. Zbosnik admitted that they sold pornography on the premises, and that it was of such an explicit nature to arouse sexual desires that she isolated it on the property and that the trial exhibits purchased on the property were in the Zbosniks' understanding of what was pornographic at the time of purchase of the property. Thomas Wheeler, PGI Vice-President, executed the deed with the Zbosniks and testified what PGI considered pornographic at the time of sale of the property. At the hearing, he identified materials purchased on the property from Inserection as being pornographic within such prohibited restriction. Investigator Thomas Bartik, Gwinnett County Police Department, testified that the materials introduced at the hearing and identified by Wheeler had been for sale on display at the property and had been purchased and not seized. Such materials depicted on the box and/or in the films explicit sexual activity, i.e., lesbian cunnilingus, female masturbation with vaginal dildo insertion, anal intercourse, simultaneous anal and vaginal intercourse, fellatio, vaginal intercourse, sadomasochism, bondage, and sex toys.

1. Inserection asserts that the trial court erred in converting a temporary restraining order into an interlocutory injunction hearing. We do not agree.

On June 8, 2001, PGI sought an ex parte TRO from the trial court; however, the trial court denied the TRO and instead issued a rule nisi which stated,

[a] motion for Interlocutory Injunction having been filed by Plaintiff Partridge Greene, Inc. on June___, 2001, IT IS HEREBY ORDERED that all interested parties show cause before this Court on the 15th of June, 2001, at 2:00 o'clock p.m. why the prayers of the aforesaid Motion should not be granted, IT IS SO ORDERED this 8th day of June, 2001.

Thus, Inserection had actual notice that an interlocutory injunction hearing had been ordered by the trial court prior to the hearing date. The notice of hearing, pursuant to the rule nisi order, was for an interlocutory injunction and not a TRO. The denied TRO was not converted to an interlocutory injunction; however, the trial court gave notice that an evidentiary hearing to deal with an interlocutory injunction would be held. Thus, Inserection had seven days actual notice of the date, time, and purpose of the evidentiary hearing, seeking an interlocutory injunction, as it admitted in open court.

Uniform Superior Court Rule 6.2 provides that a respondent normally has 30 days within which to respond to a motion; however, the rule allows the trial court in its sound discretion to shorten this time by written order, issued as a rule nisi. A motion for interlocutory injunction or a TRO is an extraordinary motion, which is time sensitive, unlike other motions, because it seeks to preserve the status quo until a full hearing can be held to avoid irreparable harm. If a TRO is granted ex parte, then a hearing for interlocutory injunction must be held within 30 days or the TRO is dissolved as a matter of law. OCGA § 9-11-65(b). There is nothing in either the Civil Practice Act or the USCR that prohibits a trial judge from setting an interlocutory injunction hearing in less than 30 days, because such motion is an extraordinary emergency procedure in law or in equity to protect rights from harm in an emergency created by the respondent. As a rule, interlocutory injunction hearings occur in less than 30 days where a TRO was denied to seek protection of the petitioner at the earliest opportunity, as in this case, and an interlocutory injunction hearing must occur within 30 days if a TRO was granted to maintain the injunction from being automatically dissolved in other cases. Therefore, in most cases, unless the parties agree, an interlocutory hearing occurs in less than 30 days from filing, and the respondent has a limited time to prepare for the hearing. Whatever such time is, such time is greater than the time for a respondent to prepare for a TRO.

In fact, the trial court can convert an interlocutory injunction hearing by consolidating it into a final trial on the merits where notice has been given of such intent and where urgency demands an immediate action. OCGA § 9-11-65(a)(2); Kim v. State of Ga., 272 Ga. 343, 344, 528 S.E.2d 798 (2000) (with notice can consolidate interlocutory injunction with trial on the merits); Kirk v. Hasty, 239 Ga. 362, 365(6), 236 S.E.2d 667 (1977) (statute authorizes but does not require consolidation of an interlocutory hearing with trial on the merits). Where the trial judge at the interlocutory hearing proceeds to consider the case on the merits and thereby consolidates the issues without objection from the parties, the parties waive any objection to such consolidation into a final hearing on the merits. Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 473(2), 260 S.E.2d 867 (1979). However, a consolidation of the interlocutory hearing into a final hearing cannot be done by the trial court without a written order over objection from the parties that they are not ready to proceed on the merits of the case. Brevard Fed. Sav. &c. Assn. v. Ford Mountain Investments, 261 Ga. 619, 620(1), 409 S.E.2d 36 (1991) (issues for jury determination on the underlying contract dispute); Fontaine Condo. Assn. v. Schnacke, 230 Ga.App. 469, 470(1), 496 S.E.2d 553 (1998) (TRO consolidated into final hearing on the merits over objection). This case was not a consolidated hearing on the merits but was an interlocutory injunction hearing pursuant to a rule nisi order so that such cases do not apply and the parties are...