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McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC

Supreme Court of Georgia

May 11, 2015

McHUGH FULLER LAW GROUP, PLLC
v.
PRUITTHEALTH-TOCCOA, LLC (two cases)

Equity. Stephens Superior Court. Before Judge Caudell.

Carlock, Copeland & Stair, Shannon M. Sprinkle, Tyler J. Wetzel, for appellant.

Arnall Golden Gregory, John R. Hood, Jason E. Bring, Glenn P. Hendrix, for appellee.

OPINION

Page 661

Hunstein, Justice.

In these appeals, Appellant McHugh Fuller Law Group, PLLC (" McHugh Fuller" ) challenges both the award of a permanent injunction to Appellee PruittHealth-Toccoa, LLC (" PruittHealth" ) and a subsequent trial court order excluding certain filings from the appellate record in the original appeal. We conclude that the trial court did err, both in granting a permanent injunction following only an interlocutory hearing and in its exclusion of filings from the appellate record. Accordingly, we vacate the award of the permanent injunction, reverse the order designating the appellate record, and remand for further proceedings.

On April 17, 2014, McHugh Fuller, a Mississippi-based law firm, ran a full-page advertisement in a Northeast Georgia local newspaper, The Toccoa Record, noting that Heritage Healthcare of Toccoa, a Stephens County nursing home owned by PruittHealth, had been cited by the government

Page 662

for deficiencies in the care of its residents and inviting those suspecting abuse or neglect of a loved one at the facility to call the law firm. On the following day, PruittHealth filed a verified complaint for temporary and permanent injunctive relief under the Georgia Uniform Deceptive Trade Practices Act (UDTPA), OCGA § 10-1-373 (a),[1] and petitioned ex parte for a temporary restraining order. That same day, the Stephens County Superior Court entered a temporary restraining order enjoining McHugh Fuller from publishing, in any newspaper or other media, advertisements regarding PruittHealth utilizing the language of the April 17 ad. The order [297 Ga. 95] also scheduled a hearing a few weeks thereafter to " determine whether injunctive relief should continue."

At the hearing, held on May 13, 2014, PruittHealth presented testimony that the government citation referenced in the ad arose from a 2012 survey report; that the cited deficiencies had been resolved immediately; and that a more recent survey report had found no such deficiencies. The facility's administrator also testified that the ad had caused severe damage to the facility's reputation, noting that the number of new admissions to the nursing home had been cut approximately in half since the ad ran. For its part, McHugh Fuller presented testimony to substantiate and justify the specific language used in the ad. The firm also presented expert testimony from an Emory University School of Law ethics professor, who opined that the ad was not false or deceptive.

At the conclusion of the hearing, the trial court stated that it found the ad to be deceptive and thus in violation of the UDTPA. The court stated: " I will grant the relief and I do find that the factors requiring injunctive relief have been met and satisfied." The court further held that " anywhere this ad is placed, whether it'd be on the Internet or in the ... local paper, is in violation of the [UDTPA]." After directing PruittHealth's counsel to draft an order effectuating its ruling, the court asked whether the parties had any other matters to discuss, and counsel for both parties responded in the negative, after which the hearing was adjourned. Thereafter, the trial court signed an order enjoining McHugh Fuller " from publishing or causing the offending advertisement to be published in the future" and requiring that McHugh Fuller within 20 days " remove or cause to be removed at its expense all electronic postings of the advertisement."

McHugh Fuller thereafter filed a verified answer and a motion to amend and/or for reconsideration of the court's order. In its motion, McHugh Fuller contended, inter alia, that the order was erroneous to the extent it purported to constitute a final order granting permanent injunctive relief, because McHugh Fuller was not on notice at the time that the court was considering anything other than interlocutory relief. The trial court, however, never ruled on these motions, and McHugh Fuller thus subsequently filed a notice of appeal.

In its notice of appeal, McHugh Fuller requested that the clerk " omit nothing from the record." PruittHealth then submitted its own designation of the record, in which it requested the court include only those items submitted to the court through and including June 2, 2014, the date the injunction was entered, thereby excluding the verified answer, motions, and supporting exhibits McHugh Fuller had filed with the trial court after that date. Following a hearing [297 Ga. 96] pursuant to OCGA § 5-6-41 (f),[2] the trial court held that the appellate record would not include materials submitted after June 2 because such items were not " before ...


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