Wallace v. Lewis

The allegations in the plaintiff's complaint as admitted by the defendant's default authorized the trial court to issue an interlocutory injunction to preserve the status quo.

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In 1997, appellant-defendant Steve Wallace purchased property in north Atlanta, razed the existent dwelling thereon, and built a new home into which he later moved his wife and family. As the work progressed, next-door neighbor appellee-plaintiff Sue Lewis complained to Wallace that run-off water was being diverted onto her property. However, these complaints were to no avail, and, on November 14, 2000, Lewis filed the instant unverified complaint and petition for damages and injunctive relief. Lewis averred, among other things, that “for more than two years, Wallace realized the impact of his actions and made no effort to remedy the problem,” and that Wallace’s actions were in the nature of a private nuisance, pertinently praying for damages and an interlocutory injunction. Wallace filed an untimely answer to the complaint that was not verified and default occurred on December 6, 2000. Lewis and Wallace thereafter filed motions for default judgment and to open default, respectively, and, on May 22, 2001, approximately three weeks after its hearing on the motions, the superior court granted default judgment to Lewis; ruled that run-off from Wallace’s property constituted a private nuisance; ordered the nuisance abated upon means to be determined at a later damages hearing; and ordered an interlocutory injunction restraining and enjoining Wallace from any additional property modifications which would disturb the status quo until such hearing. Wallace appeals1 the injunction entered against him as granted without giving him notice or an opportunity to be heard contrary to OCGA § 9-11-65 a. Finding this claim of error to be without merit, we affirm. Held:

Wallace correctly points to OCGA § 9-11-65 a as requiring notice to the adverse party and a hearing on disputed issues of fact before an interlocutory injunction may issue. Williams v. Tritt, 262 Ga. 173, 174-175 2 415 SE2d 285 1992. However, as an equity action in default and valid on its face, the instant case is not one in which there are disputed issues of fact.

Wallace v. Lewis

The allegations in the plaintiff's complaint as admitted by the defendant's default authorized the trial court to issue an interlocutory injunction to preserve the status quo.

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