TAYLOR INVESTMENT PARTNERS II, LLC et al.
MOE'S FRANCHISOR LLC.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Investment Partners II, LLC, TIP II- Ansley, LLC, and TIP
II-Suburban, LLC (collectively "Taylor") appeal
from a trial court's order purporting to grant a
temporary restraining order in favor of Moe's Franchisor,
LLC. On appeal, Taylor contends, inter alia, that while the
trial court's order was denominated as a TRO, it, in
effect, granted a declaratory judgment in favor of Moe's
and in doing so, violated OCGA § 9-4-5. For the following
reasons, we reverse.
operated two Moe's franchises pursuant to franchise
agreements between the parties. Alleging that Taylor violated
the express terms of the franchise agreements by filing for
bankruptcy, Moe's filed suit seeking an interlocutory
injunction and TRO, and asserting claims for Lanham Act
infringement and common law trademark infringement. On the
same day that she accepted service of the complaint,
Taylor's counsel sent an e-mail to the trial court's
staff and opposing counsel requesting an emergency hearing on
a TRO that she intended to file the following day. In her
e-mail, Taylor's counsel stated that her TRO motion was
going to "simply seek to preserve the status quo until
the termination dispute is resolved on the merits."
Taylor subsequently filed its TRO motion, and a hearing was
held on the parties competing motions.
conclusion of the hearing, the trial court granted
Taylor's TRO motion and asked both parties to brief the
issue of whether the filing of the bankruptcy petition
terminated the franchise agreements. Each party filed briefs
on the issue as requested. Taylor also filed its answer and
asserted seven counterclaims, including a declaratory
judgment claim seeking a declaration that the bankruptcy
termination clause in the franchise agreements was
the trial court issued an order drafted by counsel for
Moe's purporting to grant a TRO in favor of Moe's.
The order found that "Moe's termination of the
[f]ranchise [a]greements was proper and the
termination-upon-bankruptcy clause is enforceable under
applicable law." Additionally, the trial court ordered,
inter alia, that Taylor immediately shut down operations at
the franchises and "de-identify" the restaurants
from the Moe's trademarks and trade names.
contends, inter alia, that while the trial court's order
was denominated as a TRO, it in effect granted a declaratory
judgment in favor of Moe's and in doing so, violated OCGA
§ 9-4-5. We agree.
the injunction in this case is denominated as a TRO, there is
no magic in nomenclature. A document is to be construed by
its substance or function, rather than by its name."
Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 S.E.2d
252) (1998). In this case, the TRO "did not merely
preserve the status quo pending further proceedings; it
directed action which gave [Moe's] all of the relief they
sought." Id. Additionally, the trial court
resolved the ultimate issue regarding the enforceability of
the bankruptcy clause provision in the franchise agreements.
Thus, in substance, the TRO operated as a grant of a
declaratory judgment in favor of Moe's.
to OCGA § 9-4-5, "a declaratory judgment action may
not be tried earlier than 20 days after service is perfected
unless the parties consent in writing to an earlier trial
date." Skalar/Seamark, Inc. v. Skalar United
States, 198 Ga.App. 401 (401 S.E.2d 595) (1991). In this
case, the hearing on the TRO motions was held only a day
after service was perfected and was ostensibly for the
purpose of determining the parties' entitlement to
reject Moe's argument that Taylor's counsel's
e-mail requesting an emergency hearing after being served
with the complaint was a consent in writing to an earlier
trial date. It is clear from the e-mail that the reason the
emergency hearing was being requested was solely "to
preserve the status quo until the termination dispute is
resolved on the merits." Additionally, Taylor had not
yet filed its counterclaim for a declaratory judgment at the
time it requested the emergency hearing.
the trial court erred in treating the hearing on the TRO
motions as a trial on the substance of the declaratory
judgment action earlier than 20 days after service was
perfected, we reverse the trial court's order for failure
to comply with OCGA § 9-4-5. See Robert W Woodruff
Arts Center v Insardi, 266 Ga. 248 (1) (466 S.E.2d 214)
(1996); see also Skalar/Seamark, 198 Ga.App. at 401
Judgment reversed Ellington, P J, and Andrews, J, concur.