MSM Poly, LLC v. Textile Rubber & Chem. Co., A19A1719

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Phipps, Senior Appellate Judge.
• Citation: 353 Ga.App. 538,839 S.E.2d 4
• Parties: MSM POLY, LLC et al. v. TEXTILE RUBBER AND CHEMICAL COMPANY, INC.
• Docket Number: A19A1719
• Decision Date: 10 February 2020

353 Ga.App. 538
839 S.E.2d 4

MSM POLY, LLC et al.
v.
TEXTILE RUBBER AND CHEMICAL COMPANY, INC.

A19A1719

Court of Appeals of Georgia.

February 10, 2020

839 S.E.2d 5

Baker Donelson Bearman Caldwell & Berkowitz, Kevin A. Stine, Joshua N. Tropper, Tim J. Colletti, for appellants.

The Minor Firm, Jonathan L. Bledsoe, Brittany M. Dant, for appellee.

Phipps, Senior Appellate Judge.

353 Ga.App. 538

The Superior Court of Whitfield County entered an order enjoining Appellants MSM Poly, LLC ("MSM Poly"), and Patrick Mickle ("Mickle") (collectively, "Appellants") from their alleged continuing trespass at appellee Textile Rubber and Chemical Company, Inc.’s ("TRCC") plant and warehouse located in Greenville, South Carolina ("the Premises"). The injunction required Appellants to remove certain equipment and inventory that they had been maintaining at TRCC’s Premises. On appeal, Appellants claim error on the grounds that (1) the trial court lacked subject matter jurisdiction to enjoin a continuing trespass on the Premises located in South Carolina; (2) Mickle was improperly included in the scope of the injunction when there is no evidence that he had any title or interest in the equipment at the Premises; and (3) Appellants were erroneously required to remove acrylonitrile, a highly toxic and heavily regulated substance, from the Premises when there was no evidence that the substance was owned by Appellants rather than TRCC. Because we agree that the trial court lacked subject matter jurisdiction to enter the injunction, we vacate the trial court’s order.

The undisputed evidence of record reflects that TRCC, a Georgia corporation, and MSM Poly, a Delaware limited liability company, entered a Toll Manufacturing Agreement ("the Agreement") pursuant to which TRCC agreed to manufacture and sell to MSM Poly acrylonitrile methyl acrylate copolymer in filtered, wet form. Mickle was the managing member of MSM Poly and signed an "Application for Credit," which included a personal guarantee in which he agreed to pay all debts incurred within the terms of sale under the Agreement. To further facilitate the terms of the Agreement, TRCC allowed MSM Poly to maintain certain equipment and inventory at TRCC’s Premises.

Appellants allegedly defaulted on the Agreement and guarantee by failing to pay the outstanding invoices that TRCC had submitted. After the alleged default, TRCC demanded that Appellants remove the equipment that was being maintained at the Premises. Notwithstanding TRCC’s demands, Appellants failed to remove the equipment.

TRCC filed a verified complaint in the trial court, asserting causes of action for suit on account, breach of the Agreement, breach of the personal guarantee, trespass, injunctive relief, punitive damages, and attorney fees. Appellants filed verified answers, admitting that MSM Poly’s equipment was being maintained at the

353 Ga.App. 539

Premises, but claiming that the equipment had not been removed because TRCC had not allowed access to the Premises.

During the proceedings, TRCC filed a motion for a temporary restraining order ("TRO") and injunctive relief to compel Appellants’ removal of the equipment and inventory from the Premises. The trial court conducted a hearing, at which counsel for both parties appeared, to address the merits of the motion.¹ Following the hearing,

839 S.E.2d 6

the trial court entered an order granting TRCC’s request for injunctive relief. Appellants then filed the instant appeal to challenge the order of injunction.

1. First, "[i]t is incumbent upon this Court to inquire into its own jurisdiction." (Citation and punctuation omitted.) Ledford v. Mobley , 321 Ga. App. 761, 761, 743 S.E.2d 461 (2013). The trial court’s order was denominated as a "Temporary Restraining Order." Unlike injunctions, TROs are not directly appealable. Compare OCGA § 5-6-34 (a) (4) (providing for direct appeals for orders granting or refusing interlocutory or final injunctions), with OCGA § 5-6-35 (a) (9) (requiring an application for discretionary appeal to challenge "orders granting or denying temporary restraining orders"). Appellants initially filed a discretionary application under Case No. A19D0368 to pursue this appeal. But Appellants withdrew their discretionary application and filed the instant direct appeal instead.

Although the injunction in this case is denominated as a TRO, there is no magic in nomenclature. A document is to be construed by its substance or function, rather than by its name. Thus, where a TRO is entered after a lengthy adversary hearing and effectively grants the plaintiff all of the relief [it] sought, it is directly appealable.

(Citations omitted.) Dolinger v. Driver , 269 Ga. 141, 142 (1), 498 S.E.2d 252 (1998). Here, the trial court’s order was entered after an evidentiary hearing at which both sides were present. The order did not merely preserve the status quo pending further proceedings; rather, the order...