Pizza Hut of America, Inc. v. Kesler ( 1985 )

254 Ga. 360 (1985) 329 S.E.2d 133

PIZZA HUT OF AMERICA, INC. et al.
v.
KESLER et al.

41990.

Supreme Court of Georgia.

Decided May 10, 1985.

Smith, Smith & Frost, J. Randall Frost, Charles S. Wynne, for appellants.

Birch, Hartness & Link, Mary B. Forrest, Frederick E. Link, for appellees.

PER CURIAM.

In this suit for injunctive relief, after an interlocutory hearing on November 20, 1984, the trial court ordered the defendants, Pizza Hut and one of its employees, temporarily enjoined from continuing to concentrate and divert surface water onto the plaintiffs' lots. In addition, in the same order, prepared by plaintiffs' counsel, the court found the defendants to be in willful contempt of court, and "[a]s punishment for said contempt, the court hereby imposes a fine on defendant, Pizza Hut of America, in the sum of $20.00 per day ($10.00 per day per plaintiff), commencing February 18, 1985, and a like amount for each day thereafter so long as the conditions continue to exist on defendants' property which cause the accumulated flow of water from defendants' property onto the property of the plaintiffs." It is the contempt portion of the temporary injunction which Pizza Hut enumerates as error.

1. The grant of a temporary injunction is appealable. OCGA § 5-6-34 (a) (4). Appellees' motion to dismiss appeal, on the ground that the trial court's order is not final, is overruled.

2. A court is without power to issue a temporary injunction and in that same order (there having been no temporary restraining order preceding it) find the party thereby enjoined to be in willful contempt of such temporary injunction. Due process must be preserved at the expense of judicial economy. So much of the temporary injunction as finds the defendants to be in willful contempt of that injunction and imposes a fine thereon is reversed.

Judgment affirmed in part, reversed in part. All the Justices concur.