All Elements for an Injunction Must be Shown to be Granted and the Court Must Make the Requisite Findings

Posted on April 30, 2018

In Dubner v. Ferraro, 2018 Fla. App. LEXIS 4917 (Fla. 4th DCA April 2018), the Court addressed whether the order directing a non-party broker to remove its unilateral freeze of certain accounts was defective on its face for failing to include required findings and the posting of a bond, and whether the mandatory injunction was supported by the evidence. For temporary injunctive relief, a movant must demonstrate: (1) irreparable harm would result if the relief is not granted; (2) an adequate remedy at law is unavailable; (3) a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest. Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc., 51 So. 3d 1191, 1195 (Fla. 4th DCA 2011) (citing Foreclosure FreeSearch, Inc. v. Sullivan, 12 So. 3d 771, 775 (Fla. 4th DCA 2009)). The movant must also show a clear legal right to the injunction. McKeegan v. Ernst, 84 So. 3d 1229, 1230 (Fla. 4th DCA 2012). The Fourth District Court of Appeals has often recognized that “a trial court reversibly errs when an order fails to make specific findings for each of the elements.” Wade v. Brown, 928 So. 2d 1260, 1262 (Fla. 4th DCA 2006). “Strict compliance with Fla. R. Civ. P. 1.610(c) . . . is required.” Eldon v. Perrin, 78 So. 3d 737, 738 (Fla. 4th DCA 2012). And, a bond is ordinarily required for a temporary mandatory injunction absent evidence of financial inability to maintain a bond agreement of both sides or any other recognized ground. See Tri-Plaza Corp. v. N.R. Field, 382 So. 2d 330, 331 (Fla. 4th DCA 1980); Fla. R. Civ. P. 1.610(b).

Here, the Appellant and beneficiary, Ronald Dubner, filed three lawsuits in the Palm Beach Circuit Court and one action in the Broward County Circuit Court. The Appellant based the claims on the undue influence exercised by his half-siblings on their mother to alter her estate plan and to give them millions of dollars in inter vivos gifts. After these suits were filed, the broker unilaterally and without a court order put a freeze on the brokerage accounts that were the subject of the Broward County case. The personal representative of the step-brother’s estate filed an emergency verified motion for injunctive relief in the probate case in Palm Beach arguing the broker’s freeze was “tantamount to a prejudgment writ of attachment and [was] causing irreparable harm to all of the [d]efendants. The freezing of the accounts by [the broker] was done without notice, without due process, and without any legal support.” The broker filed a submission stating the Appellant emailed him a demand to freeze the accounts.

At the hearing of the motion in the Palm Beach County, the court granted the verified motion for injunctive relief and this appeal followed.  The Appellant/beneficiary argued the injunction was defective for failing to comply with the procedural and substantive requirements for temporary injunctions. Next, the Appellant/beneficiary claimed the injunction was defective for failure to include a bond in accord with the express requirements of Fla. R. Civ. P. 1.610(b). Lastly, the beneficiary argued his procedural due process rights were violated for failing to provide adequate notice of the hearing for temporary injunction after the request for emergency hearing was denied.  The trial judge at the hearing on the verified motion orally announced: “I’m ruling that the brokerage house have no freeze on it . . . ; that there’s not to be any freeze.” There was no other oral explanation or findings. During the pendency of the appeal, the Broward Circuit case was transferred to Palm Beach County.  The Fourth District Court of Appeals found the court failed to comply with Fla. R. Civ. P. 1.610(c) by failing to make the requisite findings and reversed the injunction.  It also held the defendants failed to demonstrate a substantial likelihood of success or irreparable harm.  While the defendants argued the Appellant/beneficiary waived the bond challenge, but the Court found no basis for avoiding the bond requirement. 

Editors’ Note:  The only confusion which can be associated with this appellate opinion is the identity of the parties, as the opinion itself doesn’t clearly distinguish between all the parties.  However, the opinion, itself, appears self-evident in light of the procedural requirements of Rule 1.610(b) and (c), Fla. R. Civ. P.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate, and/or Trust Disputes, or questions pertaining to such proceedings, please contact the Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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