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Smith v. Guest Pond Club Inc.

O.C.G.A. § 9-11-65 b 2 provides for a hearing on interlocutory relief, followed by a trial on the merits and a trial court may not consolidate a hearing on an application for an interlocutory injunction with a hearing on the merits of a complaint, absent agreement by the parties and entry of a consolidation order

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Appellee Guest Pond Club, Inc., “Guest Pond” owns a 1700 acre lake, which it maintains as a wildlife refuge. The eastern boundary of Guest Pond’s property abuts the western boundary of appellant Henry Smith’s property, a 2.84 acre tract. Guest Pond alleged that Smith dug a canal approximately six feet deep and wide enough to permit passage for a boat, commencing at Smith’s western boundary line and going westward onto Guest Pond’s property. Guest Pond also alleged that Smith emblazoned some of the cypress trees on Guest Pond’s property with blue paint and cut down a number of trees on the property. Guest Pond filed a petition claiming that Smith’s actions constituted a continuing trespass. Guest Pond’s petition sought a temporary restraining order “TRO” to prevent Smith from further trespassing. It also sought additional temporary relief and a permanent injunction. On the same day that the petition was filed, without notice to Smith, the trial court entered a TRO prohibiting Smith from conducting any further activities on Guest Pond’s property.1 Five days later, Smith was served with Guest Pond’s petition and became aware of the TRO. Smith answered the petition and filed a counterclaim asking that a jury trial be held in order to determine the location of the boundary line dividing his and Guest Pond’s property. Smith’s counterclaim asked the trial court to enter a TRO to maintain the status quo until such time as the boundary line dispute was resolved.

Approximately one month later, a hearing was held, at which Smith objected to the grant of anything other than temporary relief and reasserted his request for a jury trial on the boundary line issue. Following the hearing, the trial court awarded Guest Pond permanent injunctive relief and ordered Smith to pay Guest Pond’s attorney fees and expenses.

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