ICJE Memo 2.docx

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INJUNCTIONS: JUDICIAL ANALYSIS UNDER O.C.G.A. § 9-11-65
Presented By Jeffery A. Daxe, Esq.
Assisted By Marilyn Yingling, 3L, and Anika Akbar, 2L – Mercer University School of Law
I. O.C.G.A. § 9-11-65 Generally
Under Georgia law, Superior Court judges have discretion whether or not to grant
injunctive relief.1 However, if a party applies for a restraining order or an injunction pursuant to
O.C.G.A. § 9-11-65,2 then judicial discretion may only be exercised after the applicant has satisfied
several specific procedural requirements.3
O.C.G.A. § 9-11-65 provides two separate forms of relief to applicants seeking to preserve
the status quo and prevent injury, loss, or damage: (1) a temporary restraining order or (2) an
interlocutory injunction. The most important distinctions between the forms of relief are the
amount of notice and due process provided to the adverse party.
A. Temporary Restraining Order
A temporary restraining order’s (“TRO”) purpose, is to temporarily enjoin an
adverse party from causing the applicant immediate and irreparable injury, loss, or
damage.4 A TRO can be granted without notice, i.e., without due process and a full
evidentiary hearing; and therefore, it is required to be of limited duration, not to exceed 30
days.5 A TRO may be extended beyond 30 days only with consent of the adverse party.6
1 O.C.G.A. § 9-5-8.
2 O.C.G.A. § 9-11-65(e) (“This Code section is not applicable to actions for divorce, alimony,
separate maintenance, or custody of children.”).
3 See Mar-Pak Michigan, Inc. v. Pointer, 226 Ga. 189, 191-92 (1970) (holding that O.C.G.A. § 9-
11-65 limits judicial discretion until after statutory requirements are met).
4 See O.C.G.A. § 9-11-65(b)(1).
5 See id. at § 9-11-65(b)(2).
6 Id.

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If the extension granted is indefinite, then the TRO is considered to be an interlocutory
injunction.7 In extraordinary circumstances, a party may seek an emergency ex parte
TRO.8 Ex parte TROs are reserved for circumstances in which the applicant would face
severe and immediate harm, injury, or loss, if the adverse party were to learn of the
application before the relief was granted.9
B. Interlocutory Injunction
An interlocutory injunction an order is meant to preliminarily enjoin a party before
a final decision is made on the merits of the case, after due process and an evidentiary
hearing.10 The interlocutory injunction “is a ‘device to keep the parties in order to prevent
one from hurting the other whilst their respective rights are under adjudication.’"11
II. The Statute: O.C.G.A. § 9-11-65:
O.C.G.A. § 9-11-65 provides as follows:
(a) Interlocutory injunction.
(1) Notice. No interlocutory injunction shall be issued without
notice to the adverse party.
(2) Consolidation of hearing with trial on merits. Before or after the
commencement of the hearing of an application for an
interlocutory injunction, the court may order the trial of the
action on the merits to be advanced and consolidated with the
7 See Nat’l Hills Exch. V. Thompson, 319 Ga. App. 777, 778 (2013).
8 See City of Pendergrass v. Skelton, 278 Ga. App. 37, 39 (2006).
9 See Grossi Consulting, LLC v. Sterling Currency Group, LLC, 290 Ga. 386, 387 (2012) (granting
an ex parte TRO to prevent the adverse party from transferring, disposing, or interfering with any
assets it controlled concerning the applicant before a hearing may be held); see also Pittman v.
State, 288 Ga. 589, 590 (2011) (concluding an ex parte TRO was warranted because notification
of the TRO “would likely result in the destruction, removal, and concealment of the evidence and
instrumentalities of [criminal activity alleged in complaint]”).
10 This is distinct from a permanent injunction under O.C.G.A. § 9-5-10, where a court enjoins a
party’s actions as a final judgement.
11 Grossi Consulting, LLC, 290 Ga. at 388 (quoting Price v. Empire Land Co., 218 Ga. 80, 85
(1962)).

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hearing of the application. Even when this consolidation is not
ordered, any evidence received upon an application for an
interlocutory injunction which would be admissible upon the
trial on the merits shall become a part of the record on the trial
and need not be repeated upon the trial. This paragraph shall be
construed and applied so as to save any rights of the parties
which they may have to trial by jury.
(b) Temporary restraining order; when granted without notice; duration; hearing;
application to dissolve or modify. A temporary restraining order may be
granted without written or oral notice to the adverse party or his attorney only
if:
(1) It clearly appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before the adverse
party or his attorney can be heard in opposition; and
(2) The applicant's attorney certifies to the court, in writing, the
efforts, if any, which have been made to give the notice and the
reasons supporting the party's claim that notice should not be
required.
Every temporary restraining order granted without notice shall
be endorsed with the date and hour of issuance, shall be filed
forthwith in the clerk's office and entered of record, and shall
expire by its terms within such time after entry, not to exceed 30
days, as the court fixes, unless the party against whom the order
is directed consents that it may be extended for a longer period.
In case a temporary restraining order is granted without notice,
the motion for an interlocutory injunction shall be set down for
hearing at the earliest possible time and shall take precedence
over all matters except older matters of the same character; when
the motion comes on for hearing, the party who obtained the
temporary restraining order shall proceed with the application
for an interlocutory injunction; and, if he does not do so, the
court shall dissolve the temporary restraining order. On two
days' notice to the party who obtained the temporary restraining
order without notice or on such shorter notice to that party as the
court may prescribe, the adverse party may appear and move its
dissolution or modification; and in that event the court shall
proceed to hear and determine the motion as expeditiously as the
ends of justice require.
(c) Security. As a prerequisite to the issuance of a restraining order or an
interlocutory injunction, the court may require the giving of security by the

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applicant, in such sum as the court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any party who is found to have
been enjoined or restrained wrongfully. A surety upon a bond or undertaking
under this Code section submits himself to the jurisdiction of the court and
irrevocably appoints the clerk of the court as his agent upon whom any papers
affecting his liability on the bond or undertaking may be served. His liability
may be enforced on motion without the necessity of an independent action. The
motion and such notice of the motion as the court prescribes may be served on
the clerk of the court, who shall forthwith mail copies to the persons giving the
security if their addresses are known.
(d) Form and scope of injunction or restraining order. Every order granting an
injunction and every restraining order shall be specific in terms; shall describe
in reasonable detail, and not by reference to the complaint or other document,
the act or acts sought to be restrained; and is binding only upon the parties to
the action, their officers, agents, servants, employees, and attorneys, and upon
those persons in active concert or participation with them who receive notice of
the order by personal service or otherwise.
(e) When inapplicable. This Code section is not applicable to actions for divorce,
alimony, separate maintenance, or custody of children. In such actions, the
court may make prohibitive or mandatory orders, with or without notice or
bond, and upon such terms and conditions as the court may deem just.
III. Procedural Requirements of O.C.G.A. § 9-11-65
A. Verified Pleadings or Proofs
A pleading or motion for a TRO or an interlocutory injunction must be verified
positively or supported by other satisfactory proofs.12 Generally, the supporting proof is
in the form of a verified complaint, an affidavit in support of a motion, or sworn live
testimony at an evidentiary hearing.13
B. Notice
12 O.C.G.A. §§ 9-10-110 and 9-11-65(b); see also Davis v. VCP South, LLC, 297 Ga. 616, 621
(2015).
13 See e.g., Davis, 297 Ga. at 621 (holding that filing a verification as an amendment to the
applicant’s motion was sufficient to satisfy proofs required under O.C.G.A. § 9-10-110); see also
Agri-Cycle, LLC v. Couch, 284 Ga. 90, 92 (2008) (holding that a sworn verification filed with
Plaintiff’s complaint was sufficient “other satisfactory proofs”).

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The primary distinction between a TRO and an interlocutory injunction, is the
degree of notice and due process afforded to the adverse party.14
1. Requirements for TRO
A TRO may be issued without notice, either written or oral to the adverse
party or his attorney – i.e., without due process or an evidentiary hearing – if:
(1) It clearly appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or his
attorney can be heard in opposition; and
(2) The applicant's attorney certifies to the court, in writing, the
efforts, if any, which have been made to give the notice and the
reasons supporting the party's claim that notice should not be
required.15
The key distinction between a TRO and an emergency ex parte TRO, is
with a TRO, there are efforts to make the adverse party aware of the relief being
sought; however, with preservation of the status quo paramount, a TRO will
nonetheless be justified in situations where the opposing party has little or no notice
– the presumption being that the temporary relief justifies the lower due process
threshold.16 However, an emergency ex parte TRO requires no notice, due process,
or evidentiary hearing, and is intended to be granted prior to notification of the
adverse party so as to provide immediate protection from the adverse party’s
actions until a hearing can be held.17
14 See Ebon Foundation v. Oatman, 269 Ga. 340, 343 (1998).
15 O.C.G.A. § 9-11-65(b). But see Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 649 (2014)
(Error in issuing a TRO without notice is mooted when superseded by interlocutory injunction that
was issued after notice, a full hearing, and if any alleged error did not infect the interlocutory
injunction).
16 See Pittman, 288 Ga. at 591-92.
17 See City of Pendergrass v. Skelton, 278 Ga. App. 37, 39 (2006) (holding that ex parte
communications are only permitted in extraordinary matters).

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Additionally, where a TRO is issued without notice, “the motion for an
interlocutory injunction shall be set down for hearing at the earliest possible time
and shall take precedence over all matters except older matters of the same
character . . .,” and if the applicant does not proceed with the application for an
interlocutory injunction, “the court shall dissolve the [TRO].”18 The adverse party
may also move to dissolve or modify any TRO granted without notice “[o]n two
days’ notice to the [applicant] or on such shorter notice to that party as the court
may prescribe . . ..”19
2. Requirements for Interlocutory Injunction
An interlocutory injunction shall not be issued without actual notice to the
adverse party.20 Accordingly, the notice must inform the adverse party of the
injunctive relief being sought and should be given with sufficient time to allow the
adverse party to present rebuttal evidence.21 If an interlocutory injunction is
granted, the adverse party may be enjoined or restrained until the time of final
judgment.22
However, in certain atypical circumstances, either “[b]efore or after the
commencement of the hearing [ ] for an interlocutory injunction, the court may
18 O.C.G.A. § 9-11-65(b).
19 Id.
20 See Ebon Foundation, 269 Ga. at 343 (quoting Consortium Mgmt. Co. v. Mut. America Corp.,
246 Ga. 346, 348 (1980) (“there is no requirement of personal service prior to the issuance of an
interlocutory injunction. Notice to the adverse party is all that is required by [O.C.G.A. § 9-11-
65(a)(1)].”). See also Focus Entertainment Intern., Inc. v. Partridge Greene, Inc., 253 Ga. App.
121, 124 (2001).
21 See Abel & Sons Concrete, LLC v. Juhnke, 295 Ga. 150, 152 (2014). But see Barnes v. Channel,
303 Ga. 88, 93 (2018) (holding that failure to provide notice may be overlooked where there is no
objection or where the parties have acquiesced).
22 See Grossi Consulting, LLC, 290 Ga. at 388.

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order the trial of the action on the merits to be advanced and consolidated with the
hearing of the [interlocutory injunction].” 23 Consequently, each party must always
be prepared for the possibility that the merits will be reached on a hearing which is
initially set for interlocutory matters.24
The advancement and consolidation of an interlocutory matter with an
action on the merits will not alter the parties’ right to a jury trial.25 However, under
Georgia law, there is no right to a jury trial in equity cases, including interlocutory
matters, absent a statute assigning that right.26
IV. The Balancing Test and Substantive Factors Applied to O.C.G.A. § 9-11-65
Once the court has determined that all procedural requirements of O.C.G.A. § 9-11-65have
been met, it should then apply judicial discretion to its balancing of substantive factors.27 The
balancing should be conducted with the goal of preserving the status quo and allowing the parties
to litigate the issue(s) without incurring unfair or unnecessary injury, loss, or damage in the
interim.28
There is a four-factor balancing test that a court should apply.29 Under the four-factor test,
a court should consider and balance:
‘(1) whether there exists a substantial threat that a moving party will suffer
irreparable injury if the injunction is not granted; (2) whether the threatened injury
to the moving party outweighs the threat and harm that the injunction may do to the
party being enjoined; (3) whether there is a substantial likelihood that the moving
23O.C.G.A. § 9-11-65(a)(2). (Emphasis added).
24See Wilkerson v. Chattahoochee Parks, Inc., 244 Ga. 472, 473 (1979).
25O.C.G.A. § 9-11-65(a)(2).
26See Clayton v. Deverell, 257 Ga. 653, 656 (1987).
27See Mar-Pak Muchigan, Inc., 226 Ga. at 191-92.
28See City of Waycross v. Pierce County Board of Commissioners, 300 Ga. 109, 111 (2016).
29Id.

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party will prevail on the merits at trial; and (4) whether granting the interlocutory
injunction will not disserve the public interest.’30
The factors are balanced in totality of the circumstances; therefore, not every factor must
be demonstrated to succeed on a request for an interlocutory injunction.31 However, Georgia
courts generally hold that the first factor is the most important.32
Finally, if a court has doubt about granting injunctive relief during the balancing process,
the court “may require the giving of security by the applicant . . . for the payment of such costs
and damages as may be incurred or suffered by any party who is found to have been enjoined or
restrained wrongfully” as a prerequisite to granting the applicant’s request.33
V. Form and Scope of O.C.G.A. § 9-11-65 Orders
When an order is entered granting a TRO or an interlocutory injunction, the order must “be
specific in terms” and provide reasonable detail to inform the restrained or enjoined party of the
court’s directive.34 The order may not reference the complaint or other documents to describe the
restraints placed on a party; instead, it must be complete on its face, so as to present the whole
picture.35 If an order is granted without notice to the adverse party (e.g., an emergency or ex parte
TRO), then the order “shall be endorsed with the date and hour of issuance, [and] shall be filed
forthwith in the clerk’s office and entered of record . . ..”36 Every order granted under O.C.G.A.
§ 9-11-65“is binding only upon the parties to the action, their officers, agents, servants, employees,
30Id. (quoting Bishop v. Patton, 288 Ga. 600, 604 (2011)).
31See TMX Fin. Holdings, Inc. v. Drummond Fin. Serv., LLC, 300 Ga. 835, 836-37 (2017).
32See Bishop, 288 Ga. at 604-05.
33O.C.G.A. § 9-11-65(c).
34Id. at § 9-11-65(d).
35See Id.
36Id. at § 9-11-65(b)(2).

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and attorneys, and upon those persons in active concert or participation with them who receive
notice of the order by personal service or otherwise.”37
VI. Appellate Review
A. Appellate Process
1. TROs
An appeal of a TRO under O.C.G.A. § 9-11-65 is discretionary and, upon
appeal, “[t]he application shall be filed with the clerk of the Supreme Court or the
Court of Appeals within 30 days of the entry of the order, decision, or judgment
complained of . . ..”38
2. Interlocutory Injunctions
An appeal of an interlocutory injunction “may [immediately] be taken to the
Supreme Court and the Court of Appeals . . .” as a direct appeal.39
B. Standards of Review
1. Errors of Law
“The grant or denial of an interlocutory injunction will not be reversed on
appeal unless the trial court made an error of law that contributed to the decision .
. ..” 40 Accordingly, if the appellant alleges that the trial court failed to follow the
requisite statutory procedures,41 the claim will be reviewed de novo as an error of
law.
37Id. at § 9-11-65(d).
38O.C.G.A. § 5-6-35(a)(9) and (d).
39O.C.G.A. § 5-6-34(a)(4).
40City of Waycross, 300 Ga. at 111.
41See Mar-Pak Michigan, Inc., 226 Ga. at 191-92.

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2. Subjective Balancing
Because the determination of whether or not to grant injunctive relief is
discretionary, “[t]he trial court’s exercise of its discretion will not be disturbed by
an appellate court ‘unless a manifest abuse of discretion is shown . . ..’”42
42Bernocchi v. Forucci, 279 Ga. 460, 461 (2005) (citing Kennedy v. W.M. Sheppard Lumber
Co., 261 Ga. 145, 146 (1991)) (emphasis added).

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