FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
June 20, 2013
In the Court of Appeals of Georgia A13A0279. MORGAN v. U. S. BANK NATIONAL ASSOCIATION.
MCFADDEN, Judge.
Francis J. Morgan appeals pro se from the trial court’s order dissolving a
temporary restraining order and allowing U. S. Bank National Association (in its
capacity as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates Series
2006-CB5) to foreclose on Morgan’s house. Because the trial court did not abuse its
discretion in declining to consider at the hearing on injunctive relief other claims
raised by Morgan in an amended complaint, and did not abuse its discretion in
requiring, as a condition for extending injunctive relief, that Morgan place into
escrow an amount of money reflecting past-due payments on his mortgage, we affirm.
1. Facts and procedural posture. The evidence is undisputed that Morgan obtained a mortgage on his house and
subsequently stopped making payments on that mortgage. He did so because he
concluded that the note had become “void or voidable” due to a “failure of
conveyance,” apparently referring to an assignment that he alleged was improper.
After being notified that U. S. Bank intended to foreclose on the house, Morgan filed
a pro se action against U. S. Bank styled “Complaint for Fraud and Request for
Temporary Restraining Order.” Therein, he asserted that U. S. Bank had no standing
to foreclose because it was not the holder of either the note or deed securing the debt
on the property, sought further discovery into “U. S. Bank’s actions,” and sought to
enjoin the foreclosure. The same day that Morgan filed the complaint, the trial court
granted him a temporary restraining order and directed the parties to appear for a
hearing on the complaint the following month. Shortly before the scheduled hearing,
Morgan filed an amended complaint in which he alleged additional causes of action
and sought damages, declaratory relief, and further injunctive relief.
The trial court conducted a hearing on July 2, 2012, to determine “whether the
TRO is going to be made permanent or not.” The trial court expressly did not
consider other issues raised in the amended complaint, noting that U. S. Bank had not
yet received a copy of that pleading. At the hearing, Morgan presented testimony and
2 argued that, although he stopped making payments on his mortgage, questions existed
about whether U. S. Bank was the entity to which he owed those payments and
whether he was presently indebted to any entity at all. The trial court indicated his
willingness to grant Morgan injunctive relief from the foreclosure if he placed into
the court registry an amount of money covering the past-due payments on the
mortgage. Morgan declined to do so. The trial court then ruled from the bench that
he was “going to dissolve the temporary restraining order and let U. S. Bank
proceed,” noting that the law “d[id] not favor” Morgan’s contention that U. S. Bank
lacked standing to pursue payments under the note.
On July 13, the trial court entered a written order dissolving the temporary
restraining order and allowing U. S. Bank to proceed with the foreclosure. (U. S.
Bank’s counsel prepared this order and in its appellate brief characterizes the order
as “grant[ing] U. S. Bank’s motion to dismiss” Morgan’s complaint. The record
reflects, however, that U. S. Bank did not move to dismiss the complaint until July
27, 2012, after the trial court issued its order. And although the order is styled “Order
of Dismissal with Prejudice,” by its terms it neither rules on a motion to dismiss nor
dismisses Morgan’s action sua sponte. ) Morgan appeals.
2. Appellate jurisdiction.
3 As an initial matter, we must address our duty to inquire into our jurisdiction
to entertain each appeal. See Forest City Gun Club v. Chatham County, 280 Ga. App.
219, 220 (633 SE2d 623) (2006). As detailed below, OCGA § 5-6-34 (a) (4) permits
Morgan’s direct appeal from the July 13 order.
The order on appeal dissolved a previously-granted temporary restraining
order. It followed a hearing at which the trial court heard evidence on whether to
extend the injunctive relief sought by Morgan. See generally OCGA § 9-11-65 (b)
(setting forth procedure by which court conducts hearing to determine whether either
to dissolve previously-entered ex parte temporary restraining order or to grant
interlocutory injunction). As such, the order’s function and substance was to deny
Morgan interlocutory injunctive relief pending the litigation of the various claims
raised in his complaint and amended complaint. See Hughey v. Gwinnett County, 278
Ga. 740, 741 (1) (609 SE2d 324) (2004) (when determining whether order is directly
appealable, we consider its function and substance rather than its nomenclature).
Accordingly, the order fell under OCGA § 5-6-34 (a) (4), which permits a party to
directly appeal from “[a]ll judgments or orders granting or refusing applications . . .
for interlocutory or final injunctions.” See Georgia Power Co. v. Hunt, 266 Ga. 331
(1) (466 SE2d 846) (1996) (where trial court’s decision effectively denied party’s
4 request for interlocutory injunctive relief, it was the equivalent to a refusal to grant
an interlocutory injunction application and was therefore directly appealable under
OCGA § 5-6-34 (a) (4)); Spell v. Blalock, 243 Ga. 459, 460-461 (1) (254 SE2d 842)
(1979) (trial court’s ruling on whether to continue a restraining order was directly
appealable under predecessor to OCGA § 5-6-34 as an exception to the doctrine of
finality of judgment); Nat. Hills Exchange v. Thompson, 319 Ga. App. 777-778 (736
SE2d 480) (2013) (trial court’s order extending temporary restraining order in effect
granted directly appealable preliminary injunction); see also Dolinger v. Driver, 269
Ga. 141, 142 (1) (498 SE2d 252) (1998) (order granting temporary restraining order
is directly appealable where it is entered after a lengthy adversary hearing and
effectively grants the plaintiff all of the relief sought). But see West 80 Investors v.
Chequers Investment Assoc., 214 Ga. App. 673, 674 n. 1 (448 SE2d 735) (1994)
(noting in dicta that order dissolving temporary injunction generally did not fall
within provisions of OCGA § 5-6-34 (a) (4), but nevertheless finding appellate
jurisdiction over such order because “the trial court reached the core issue in th[e]
case,” rendering the order a final, appealable judgment).
3. Dissolution of the temporary restraining order.
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FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
June 20, 2013
In the Court of Appeals of Georgia A13A0279. MORGAN v. U. S. BANK NATIONAL ASSOCIATION.
MCFADDEN, Judge.
Francis J. Morgan appeals pro se from the trial court’s order dissolving a
temporary restraining order and allowing U. S. Bank National Association (in its
capacity as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates Series
2006-CB5) to foreclose on Morgan’s house. Because the trial court did not abuse its
discretion in declining to consider at the hearing on injunctive relief other claims
raised by Morgan in an amended complaint, and did not abuse its discretion in
requiring, as a condition for extending injunctive relief, that Morgan place into
escrow an amount of money reflecting past-due payments on his mortgage, we affirm.
1. Facts and procedural posture. The evidence is undisputed that Morgan obtained a mortgage on his house and
subsequently stopped making payments on that mortgage. He did so because he
concluded that the note had become “void or voidable” due to a “failure of
conveyance,” apparently referring to an assignment that he alleged was improper.
After being notified that U. S. Bank intended to foreclose on the house, Morgan filed
a pro se action against U. S. Bank styled “Complaint for Fraud and Request for
Temporary Restraining Order.” Therein, he asserted that U. S. Bank had no standing
to foreclose because it was not the holder of either the note or deed securing the debt
on the property, sought further discovery into “U. S. Bank’s actions,” and sought to
enjoin the foreclosure. The same day that Morgan filed the complaint, the trial court
granted him a temporary restraining order and directed the parties to appear for a
hearing on the complaint the following month. Shortly before the scheduled hearing,
Morgan filed an amended complaint in which he alleged additional causes of action
and sought damages, declaratory relief, and further injunctive relief.
The trial court conducted a hearing on July 2, 2012, to determine “whether the
TRO is going to be made permanent or not.” The trial court expressly did not
consider other issues raised in the amended complaint, noting that U. S. Bank had not
yet received a copy of that pleading. At the hearing, Morgan presented testimony and
2 argued that, although he stopped making payments on his mortgage, questions existed
about whether U. S. Bank was the entity to which he owed those payments and
whether he was presently indebted to any entity at all. The trial court indicated his
willingness to grant Morgan injunctive relief from the foreclosure if he placed into
the court registry an amount of money covering the past-due payments on the
mortgage. Morgan declined to do so. The trial court then ruled from the bench that
he was “going to dissolve the temporary restraining order and let U. S. Bank
proceed,” noting that the law “d[id] not favor” Morgan’s contention that U. S. Bank
lacked standing to pursue payments under the note.
On July 13, the trial court entered a written order dissolving the temporary
restraining order and allowing U. S. Bank to proceed with the foreclosure. (U. S.
Bank’s counsel prepared this order and in its appellate brief characterizes the order
as “grant[ing] U. S. Bank’s motion to dismiss” Morgan’s complaint. The record
reflects, however, that U. S. Bank did not move to dismiss the complaint until July
27, 2012, after the trial court issued its order. And although the order is styled “Order
of Dismissal with Prejudice,” by its terms it neither rules on a motion to dismiss nor
dismisses Morgan’s action sua sponte. ) Morgan appeals.
2. Appellate jurisdiction.
3 As an initial matter, we must address our duty to inquire into our jurisdiction
to entertain each appeal. See Forest City Gun Club v. Chatham County, 280 Ga. App.
219, 220 (633 SE2d 623) (2006). As detailed below, OCGA § 5-6-34 (a) (4) permits
Morgan’s direct appeal from the July 13 order.
The order on appeal dissolved a previously-granted temporary restraining
order. It followed a hearing at which the trial court heard evidence on whether to
extend the injunctive relief sought by Morgan. See generally OCGA § 9-11-65 (b)
(setting forth procedure by which court conducts hearing to determine whether either
to dissolve previously-entered ex parte temporary restraining order or to grant
interlocutory injunction). As such, the order’s function and substance was to deny
Morgan interlocutory injunctive relief pending the litigation of the various claims
raised in his complaint and amended complaint. See Hughey v. Gwinnett County, 278
Ga. 740, 741 (1) (609 SE2d 324) (2004) (when determining whether order is directly
appealable, we consider its function and substance rather than its nomenclature).
Accordingly, the order fell under OCGA § 5-6-34 (a) (4), which permits a party to
directly appeal from “[a]ll judgments or orders granting or refusing applications . . .
for interlocutory or final injunctions.” See Georgia Power Co. v. Hunt, 266 Ga. 331
(1) (466 SE2d 846) (1996) (where trial court’s decision effectively denied party’s
4 request for interlocutory injunctive relief, it was the equivalent to a refusal to grant
an interlocutory injunction application and was therefore directly appealable under
OCGA § 5-6-34 (a) (4)); Spell v. Blalock, 243 Ga. 459, 460-461 (1) (254 SE2d 842)
(1979) (trial court’s ruling on whether to continue a restraining order was directly
appealable under predecessor to OCGA § 5-6-34 as an exception to the doctrine of
finality of judgment); Nat. Hills Exchange v. Thompson, 319 Ga. App. 777-778 (736
SE2d 480) (2013) (trial court’s order extending temporary restraining order in effect
granted directly appealable preliminary injunction); see also Dolinger v. Driver, 269
Ga. 141, 142 (1) (498 SE2d 252) (1998) (order granting temporary restraining order
is directly appealable where it is entered after a lengthy adversary hearing and
effectively grants the plaintiff all of the relief sought). But see West 80 Investors v.
Chequers Investment Assoc., 214 Ga. App. 673, 674 n. 1 (448 SE2d 735) (1994)
(noting in dicta that order dissolving temporary injunction generally did not fall
within provisions of OCGA § 5-6-34 (a) (4), but nevertheless finding appellate
jurisdiction over such order because “the trial court reached the core issue in th[e]
case,” rendering the order a final, appealable judgment).
3. Dissolution of the temporary restraining order.
5 As discussed above, the trial court’s dissolution of the temporary restraining
order effectively denied Morgan’s application for further injunctive relief. “The
granting and continuing of injunctions shall always rest in the sound discretion of the
judge[.]” OCGA § 9-5-8; see Byelick v. Michel Herbelin USA, 275 Ga. 505, 506 (1)
(570 SE2d 307) (2002). Morgan’s only enumerations of error are that the trial court
failed to consider the allegations of his amended complaint in deciding whether to
extend injunctive relief, and that the court required him to pay into the court registry
the amount of his past-due mortgage payments as a condition of a continued
injunction. We find no merit in either claim.
(a) Amended complaint. Although Morgan argues that the trial court should
have considered the allegations of his amended complaint at the hearing, as the trial
court noted, the issue before it at that point was limited to whether to continue the
injunctive relief provided in the temporary restraining order. And it is clear from the
record both that Morgan had the opportunity at the hearing to present evidence and
argument pertaining to his request for continuing injunctive relief, and that the trial
court has not yet addressed the other issues that Morgan raised in the amended
complaint. Indeed, the record contains pleadings, filed after the trial court’s ruling
denying further injunctive relief, that address the other issues raised in the amended
6 complaint. We find no abuse of discretion in the trial court’s decision not to consider
the amended complaint in ruling on whether to continue injunctive relief.
(b) Payment to court registry. At the hearing, Morgan admitted that he had
borrowed money against his house and then stopped making payments on the
mortgage. Although Morgan disputed his obligation to make the past-due payments,
the trial court did not abuse its discretion in requiring him to place money to satisfy
those payments into the court registry as a condition for granting injunctive relief
pending resolution of the claims raised in his complaint and amended complaint. See
generally Green v. Fuller, 223 Ga. 204, 205 (1) (154 SE2d 220) (1967) (finding no
abuse of discretion in trial court’s dissolution of temporary restraining order, which
had enjoined the execution of a power of sale in a deed to secure debt, where the
party seeking continued injunctive relief failed to post a bond for the disputed amount
into the court registry and conflicting evidence was presented on the material issues
in the case).
Judgment affirmed. Doyle, P. J., and Boggs, J., concur.