AL BABUSCHKIN ET AL., APPELLANTS,
v.
ROYAL STANDARD CORPORATION, APPELLEE
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Royal Standard Corporation obtained a temporary injunction without notice restraining sellers from using performance bonds related to a land sale contract dispute. The Third District Court of Appeal affirmed the denial of the sellers' motion to dissolve the injunction but remanded to require plaintiff to post an injunction bond as mandated by Florida Rules of Civil Procedure.
The court affirmed the denial of the motion to dissolve the temporary injunction but remanded to require Royal Standard to post an injunction bond as mandated by Rule 1.610(b) F.R.C.P. The issue of whether proper notice was given could not be reached on appeal from the order denying dissolution rather than from the injunction order itself.
[1] A temporary injunction issued without notice requires a showing of necessity to dispense with notice, as mandated by Rule 1.610(b) F.R.C.P.
[2] An order denying a motion to dissolve a temporary injunction does not permit an appellate court to review the propriety of issuing the injunction without notice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 1.610(b) F.R.C.P. is plain as to what is necessary to be shown for issuance of a temporary injunction without notice, and as to the requirements for injunction bond.”
Establishes that the procedural requirements for temporary injunctions without notice and bond requirements are clearly defined by rule.
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Join FLexlaw to unlock all legal intelligenceRoyal Standard Corporation contracted to purchase land from the Babuschkins, subject to county approval of a subdivision plat. Royal Standard obtained…
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CHARLES CARROLL, Associate Judge.
The appellee Royal Standard Corporation, the plaintiff below, entered into a contract with the appellants to purchase certain lands from the latter, subject to approval by the county of a proposed subdivision plat and its recordation. The contract provided that the purchaser should obtain the bonds which the sellers needed to furnish to the county incident thereto.
After the bonds were obtained and submitted, and other matters preliminary to approval of the plat were performed, but prior to a hearing for the approval of the plat, the purchaser filed an action against the sellers and Dade County, alleging the sellers had breached the contract by failing to timely close the sale, and that the sellers were continuing to use the bonds, upon which the purchaser was obligated, in seeking approval of the plat. The plaintiff sought return of a certain portion of the purchase price which had been placed in escrow, and sought an injunction to restrain the use of the bonds pending outcome of the action.
The complaint did not contain any allegations or showing of necessity to dispense with notice of application for temporary injunction, as required by Rule 1.610(b) F.R.C.P. If affidavits containing such showing were submitted by the plaintiff, the appendix provided on this appeal does not reveal them. No basis for dispensing with notice was recited in the injunction order. A temporary injunction was entered without notice, restraining the defendants and Dade County from using the said bonds. Contrary to the requirement of the rule cited above, no provision was made requiring the plaintiff to file an injunction bond.
The defendant sellers moved to dissolve the temporary injunction. The motion to dissolve was denied, and said defendants filed this interlocutory appeal.
The appellants do not challenge the propriety of the injunction, but argue the court erred in not dissolving the injunction when it appeared, they contend, it was issued without notice in the absence of a showing of necessity to proceed without notice, and because an injunction bond was not required, with no showing of financial inability of the plaintiff to file such bond.
Rule 1.610(b) F.R.C.P. is plain as to what is necessary to be shown for issuance of a temporary injunction without notice, and as to the requirements for injunction bond.
The question of absence of basis to dispense with notice on the application for the temporary injunction cannot be reached on an appeal which is not from the injunction order but is from an order denying a motion to dissolve it, for the reason stated in Belk’s Department Store, Miami, Inc. v. Scherman, Fla.App.1960, 117 So. 2d 845, 847, and DeCarlucci v. Granulite, Inc., Fla.App. 1965, 171 So. 2d 587, 588.
The appellants’ contention as to the omission of direction for the plaintiff to file an injunction bond has merit. The order denying the motion to dissolve the temporary injunction is affirmed, and the cause is remanded to the circuit court for further proceedings, with direction to enter an order that the continuance of the temporary injunction shall be dependent on the filing by the plaintiff of an injunction bond in such amount as the court shall determine and within the time that the court shall fix therefor. It is so ordered.
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State v. Beeler, 530 So. 2d 932 (Fla. 1988)…McDonald, justice. The decision of the district court in this case, Beeler v. State, 513 So. 2d 710 (Fla. 1st DCA 1987), directly and expressly conflicts with Babuschkin v. Royal Standard Cory., 305 So. 2d 253 (Fla. 3d DCA 1974). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash Beeler. The state comptroller investigated Beeler under chapter 517, Florida Statutes (1987), the Florida Securities and Investor Protection Ac…1 / 2
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TJ Mgmt. Grp., L.L.C. v. Ehud Zidon, 990 So. 2d 623 (Fla. 3d DCA 2008)…hould have conducted a hearing to set a proper injunctive bond. Therefore, we affirm the denial of the Motion to Dissolve and remand with instructions to set a proper injunctive bond. Fla. R. Civ. P. 1.610(b); see Babuschkin v. Royal Standard Corp., 305 So. 2d 253 (Fla. 3d DCA 1974).2 Affirmed and remanded with directions. . We find no merit in the Appellee's argument that personal jurisdiction was a condition precedent to the issuance of the injunctive relief in the proceeding below. Harris & Co. Adver. In…
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Beeler v. State, 513 So. 2d 710 (Fla. 1st DCA 1987)…may not raise the notice issue in an appeal from the denial of a motion to dissolve a temporary injunction, relying on Belk’s Department Store, Miami, Inc. v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960) and Babuschkin v. Royal Standard Corporation, 305 So. 2d 253 (Fla. 3d DCA 1974). In regard to the merits of the appeal, appellee refers this Court to the maxim that the dissolution of a temporary injunction is a matter lying within the discretion of the trial court, citing City Gas Company of Florida v. Ro-Mo…
Authorities Cited
- Belk's Dep't Store v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960)
- Alonso v. Court Paper Co., Inc., 171 So. 2d 587 (Fla. 3d DCA 1965)
- de Carlucci v. Granulite, 171 So. 2d 587 (Fla. 2d DCA 1965)