Antitrust Law Daily Wrap Up, ADVERTISING—Ga. S. Ct.: Trial court failed to give proper notice to issue permanent injunction, (May 18, 2015)

By Michael Menzhuber, J.D., LL.M

A permanent injunction barring a law firm from advertising that a nursing home had been cited for deficiencies in the care of its residents and inviting those affected to contact the law firm was vacated and remanded by the Georgia Supreme Court (McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC., May 11, 2015, Hunstein, C.).

Background. McHugh Fuller Law Group, PLLC, a Mississippi-based law firm, ran a full-page advertisement in a local Georgia newspaper, noting that Heritage Healthcare, a nursing home owned by PruittHealth-Toccoa, LLC, had been cited for resident care deficiencies. The ad also invited those suspecting abuse or neglect of a loved one at the facility to call. PruittHealth filed a complaint for temporary and permanent injunctive relief, and the trial court entered a temporary restraining order enjoining McHugh from any further publication of the ad language. After an interlocutory hearing on the matter, the trial court found the ad to be deceptive in violation of the Unfair and Deceptive Trade Practices Act (UDTPA) and awarded a PruittHealth a permanent injunction enjoining McHugh from further publication of the ad language.

McHugh filed a motion for reconsideration of the court’s order, to the extent it purported to grant permanent injunctive relief, on the basis that it was not given any notice that the court was considering anything other than interlocutory relief. After the trial court failed to rule on its motion, McHugh filed a notice of appeal.

On appeal, McHugh requested that nothing be omitted from the record. PruittHealth, however, requested that the court only include those items submitted to the court through and including the date the injunction was entered. The trial court granted PruittHealth’s request and the verified answer, motions and supporting exhibits filed by McHugh after that date were omitted.

Permanent injunction. The court observed that, while the general rule is that entering permanent relief after an interlocutory hearing is improper, under certain circumstances, a trial court is permitted to order the trial of an action on the merits to be advanced and consolidated with an interlocutory hearing. However, the court further noted that a court’s authority to do requires adherence to the due process principle that the litigants be given fair notice and opportunity to be heard.

The court determined that, while it clearly had notice of the interlocutory hearing, McHugh had no notice that the trial court intended to consider the merits of permanent injunctive relief at that hearing. PruittHealth argued that, despite the absence of this notice, McHugh acquiesced in the entry of permanent injunctive relief by failing to object when the trial court pronounced its ruling at the conclusion of the hearing. The court, however, pointed out that a party cannot effectively acquiesce to a court of action, or be held accountable for a failure to object, if it is unaware that that such a course is being taken. The Court, therefore, determined that, in the absence of any express or otherwise unambiguous notice that a permanent injunction would be considered or granted at the interlocutory hearing, McHugh’s failure to object did not constitute acquiescence. Thus, the trial court erred in granting permanent injunctive relief at this stage of the proceedings.

Inclusion of filings. Under OCGA § 5-6-37, the appellant is charged with the duty to designate the appellate record and, under OCGA § 5-6-43(a), the appellee is permitted to designate for inclusion any materials the appellant has requested to be omitted. As such, according to the Court, this statutory scheme contemplates requests by the appellee to only include portions of the record that the appellant has designated for exclusion and does not authorize the appellee to request exclusion of the items that the appellant desires to include. Therefore, the Court determined that the trial court erred in not including in the appellate record the filing that McHugh made after the date of the entry of the permanent injunction.

The cases are Nos. S15A0362 and S15A0641.

Attorneys: Shannon McKenzie Sprinkle (Carlock, Copeland & Stair, LLP) for McHugh Fuller Law Group, PLLC. John Ryan Hood (Arnall Golden Gregory LLP) for PruittHealth-Toccoa, LLC.

Companies: McHugh Fuller Law Group, PLLC; PruittHealth-Toccoa, LLC

Cases: Advertising StateUnfairTradePractices GeorgiaNews