Byelick v. Michael Herbelin USA, Inc.

Formerly an employee of Michel Herbelin USA, Inc., a U.S. subsidiary
of a French watch-maker (hereinafter "Herbelin"), Thomas Byelick sued
Herbelin for breach of contract, alleging that contracts between the parties made
Byelick the sole owner of Herbelin. Byelick obtained an ex parte temporary
restraining order preventing Herbelin from interfering in the conduct of the
business and specifically against recovering from him company assets and
records in his possession. After a hearing on Byelick's application for an
interlocutory injunction, the trial court dissolved the temporary restraining order
and ordered Byelick to turn over the inventory and records of Herbelin within
10 days. This appeal is from that order.

1. In two enumerations of error, Byelick contends the trial court's
dissolution of the temporary restraining order and grant of relief to Herbelin
were abuses of discretion. Our review of the record persuades us otherwise.

"‘The purpose for granting interlocutory injunctions is to preserve the
status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case.' [Cit.] Generally, the trial court has broad discretion
under OCGA § 9-5-8 in deciding whether to grant a request for an interlocutory
injunction. [Cit.]" Atlanta Dwellings, Inc. v. Wright, 272 Ga. 231, 233 (527
SE2d 854) (2000). Byelick contends that the status quo which warrants
protection in this case is his lawful possession of the inventory and records of
Herbelin. However, whatever the merit of Byelick's claim that he now owns
Herbelin, the evidence at the hearing established without contradiction that
Byelick's original possession of the inventory and records was as an employee
of Herbelin, and that he was discharged from Herbelin's employ prior to his
assertion of a claim of ownership. Thus, the status quo ante was not Byelick's
personal possession of the inventory and records, but Herbelin's possession of
the inventory and records. Insofar as the convenience of the parties is
concerned, the record showed and the trial court found that Herbelin needs the
inventory and records as part of its effort to close its U.S. operations, and has
sufficient resources that Byelick could be adequately compensated if he were to
prevail on the merits of his claim. Given those facts, we see no abuse of
discretion in the trial court's decision that the equities of the case required that the property be returned to Herbelin pending resolution of Byelick's legal
claims.

2. Byelick contends the trial court's order constituted a permanent
injunction, which was error because it was for an unlimited time and was
entered without a full hearing. "The entry of permanent relief after an interlocutory hearing is improper unless there is an order consolidating the trial
on the merits with the hearing on the application for interlocutory injunction as
provided in OCGA § 9-11-65 (a) (2), or the parties have acquiesced." HMC
Realty, Inc. v. Charis Community Housing, Inc., 273 Ga. 817, 818 (546 SE2d
498) (2001). However, Byelick is mistaken in his designation of the injunction
here as permanent rather than interlocutory. "The purpose of an interlocutory
injunction is preliminary and preparatory; it looks to a future final hearing, and
while contemplating what the result of that hearing may be, it does not settle
what it shall be." Milton Frank Allen Publications v. Georgia Ass'n of Petroleum
Retailers, 223 Ga. 784, 788 (158 SE2d 248) (1967) (emphasis in original). The
order at issue here recognized the ongoing nature of the controversy and made
no effort to resolve the basic conflict. Instead, the order acknowledged that
there will be further litigation and ensured that the interests of both parties were
protected until a final resolution. Thus, the order did not constitute a permanent
injunction and Byelick's enumeration of error raising that issue is without merit.

3. Finally, Byelick's contends that the trial court erred by failing to adopt
the alternative remedy of the appointment of a receiver to take possession of the
inventory. Byelick suggests in his brief that the trial court "appears not to have
considered any alternative" to the injunction it issued, but we note that other
alternatives, including appointment of a receiver, were argued to the trial court
at the hearing. There is nothing in the record establishing a failure of the trial
court to consider the appointment of a receiver as an alternative, and under the principle that a trial court will be presumed to have performed its duty
(Goodwin v. State, 251 Ga. App. 549 (1) (554 SE2d 317) (2001); Johnson v.
Equicredit Corp., 238 Ga. App. 380 (1) (517 SE2d 353) (1999)), we will not
assume the trial court here failed to do so. To the extent Byelick argues that the
trial court erred in failing to appoint a receiver as a less extreme remedy, we
disagree. "[T]he court's power to appoint a receiver should be prudently and
cautiously exercised and should not be resorted to except in clear and urgent
cases. [Cit.]" Chrysler Ins. Co. v. Dorminey, 271 Ga. 555 (1) (522 SE2d 232)
(1999). See also OCGA § 9-8-4. "The high prerogative act of taking property
out of the owner's hands and putting it in pound, under the order of a judge,
ought not to be taken, except to prevent manifest wrong imminently impending.
[Cit.]" Cleveland v. Tully, 232 Ga. 377 (4) (207 SE2d 18) (1974). In the
present case, the trial court specifically found that Byelick's rights would be
protected because Herbelin has sufficient assets to satisfy any award Byelick
might receive from this litigation. The evidence submitted by Herbelin supported that finding. Since "[t]he evidence did not show that the rights of the
parties could not be fully protected without the appointment of a receiver, ... the
trial [court] did not abuse [its] discretion in refusing to appoint a receiver.
[Cits.]" Rogers v. McDonald, 224 Ga. 599 (2) (163 SE2d 719) (1968).

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Affirmed

Unavailable

Unavailable

None