Green Bull Ga. Partners, LLC v. Register, S17A0327

• Decision Date: 19 June 2017
• Docket Number: S17A0327
• Parties: GREEN BULL GEORGIA PARTNERS, LLC et al. v. REGISTER et al.
• Court: Georgia Supreme Court

301 Ga. 472

801 S.E.2d 843

GREEN BULL GEORGIA PARTNERS, LLC et al.

v.REGISTER et al.

S17A0327

Supreme Court of Georgia.

Decided: June 19, 2017

Stuart Ellis Walker, John T. McGoldrick, Jr., General Counsel, Martin Snow, LLP, 240 Third Street, Macon, Georgia 31202, Robert T. Glickman, McCarthy Lebit Crystal & Liffman Co., LPA, 101 W. Prospect Avenue, Suite 1800, Cleveland, Ohio 44115, for Appellant.

Thomas C. James, III, General Counsel, William Patrick Horkan, James, Bates, Brannan, Goover LLP, 231 Riverside Drive, Macon, Georgia 31201, for Appellee.

John Wesley Mills, III, Barnes & Thornburg LLP, 3343 Peachtree Street, N.E., Suite 1150, Atlanta, Georgia 30326-1428, Amanda Rodman Smith, John Ellsworth Hall, IV, Hall, Bloch, Garland & Meyer, LLP, P.O. Box 5088, Macon, Georgia 31208-5088, Ivy Neal Cadle, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., P.O. Box 5047, Macon, Georgia 31208-5047, for Other Party.

Blackwell, Justice.

Lowell and Janice Register are shareholders of Register Communications, Inc., and when Green Bull Georgia Partners, LLC threatened to foreclose on property that had been pledged to secure the debts of Register Communications, the Registers sued Green Bull. In connection with their lawsuit, the Registers sought an interlocutory injunction to prohibit any foreclosure pending final judgment. At first, the trial court provisionally granted some injunctive relief, but after further consideration, it concluded that an injunction pending final judgment was not warranted, and it set aside the injunction that it previously had entered. The Registers appealed from the order setting aside the interlocutory injunction, and they asked the trial court for an injunction at least to prohibit any foreclosure pending the resolution of their appeal. The trial court granted an injunction pending appeal, and in this case, Green Bull appeals from the entry of that injunction.¹ We affirm.²

A trial court has authority to restore or grant an injunction pending the resolution of an appeal from an order setting aside or denying an injunction pending final judgment:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

OCGA § 9-11-62 (c). Although the appellate courts also have the authority to grant a stay or injunction pending appeal, an application for such relief ordinarily ought to be directed in the first instance to the trial court. See Citizens to Save Paulding County v. City of Atlanta , 236 Ga. 125, 125, 223 S.E.2d 101 (1976). When a court considers an application for a stay or injunction pending appeal, it must weigh all of the pertinent equities, including the likelihood that the appellant will prevail on the merits of his appeal, the extent to which the applicant will suffer irreparable harm in the absence of a stay or injunction, the extent to which a stay or injunction would harm the other parties with an interest in the proceedings, and the public interest. See Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).³ See also Wright & Miller,

11 Fed. Prac. & Proc. Civ. § 2904 (3^rd ed. 2017). Although the likelihood that the appellant will prevail on appeal is, generally speaking, the most important of these considerations, the applicant need not always show that he more likely than not will prevail on appeal. See Garcia-Mir v. Meese , 781 F.2d 1450, 1453 (II) (A) (11^th Cir. 1986). If the other equities weigh strongly in favor of a stay or injunction pending appeal, that the appellant presents a "substantial case on the merits [of his appeal]" may be enough. Ruiz v. Estelle , 650 F.2d 555, 565 (II) (5^th Cir. 1981).

The standard for a stay or injunction pending the resolution of an appeal bears a striking resemblance, of course, to the familiar standard for an injunction pending a final judgment in the original proceedings. See City of Waycross v. Pierce County Bd. of Commrs. , 300 Ga. 109, 111 (1), 793 S.E.2d 389 (2016) (discussing standard for interlocutory injunctions).⁴ In the light of this resemblance, Green Bull contends, among other things, that the trial court in this case could not reasonably have concluded that the balance of the equities supports an injunction against foreclosure pending appeal when it had, only days earlier, concluded that the equities did not support an injunction against foreclosure pending final judgment in the trial court. Although the standards for a stay or injunction pending appeal and an interlocutory injunction pending final judgment are similar, there are important differences in application, which may, in some cases, lead to different outcomes. For one thing, the likelihood that a party will prevail at trial on the merits of the claims presented in the lawsuit is not inevitably the same as the likelihood that the same party will prevail on the merits of an appeal, which may present different or narrower issues. The assessment of irreparable harm may differ under the two standards, inasmuch as an application for a stay or injunction pending appeal may present an additional sort of irreparable harm—the prospect of the appeal becoming moot and the right of appellate review being lost as a result⁵ —that is not at issue when the proceedings are confined to the trial court. As to the harm that injunctive relief may do to others, an injunction pending appeal will, in most cases, expose the appellee and other interested parties to such harm for a shorter time than an injunction pending final resolution of all of the proceedings in the trial court. These are just a few of the ways in which the similar standards may point to different outcomes. And indeed, OCGA § 9-11-62 (c) itself explicitly contemplates that an injunction pending appeal may be warranted when an injunction pending final judgment is not, vesting the trial court with discretion to "restore[ ] or grant an injunction" pending an appeal from an order that "dissolves[ ] or denies an injunction."

Here, we see no abuse of discretion in the grant of an injunction pending appeal under OCGA § 9-11-62 (c). Especially in light of its initial and provisional determination that an interlocutory injunction pending final judgment might be appropriate, that the trial court found the case close enough to warrant an injunction pending appeal—notwithstanding its determination that an interlocutory injunction pending final judgment was not appropriate—is unremarkable. We affirm the judgment below.⁶

Judgment affirmed.

All the Justices concur, except Peterson, J., not participating.

1 See OCGA § 5-6-34 (a) (4). Because the notice of appeal was filed before January 1, 2017, this Court has appellate jurisdiction in this equity case. We note, however, that the Court of Appeals has appellate jurisdiction in most equity cases in which the notice of appeal was filed on or after January 1, 2017. See OCGA § 15-3-3.1 (a) (2). See also Moreno v. Smith , ...