by Thomas Ward
The late author Stephen R. Covey1 observed that “highly effective” people have the habit of beginning tasks with their desired result in mind.2 Since the Florida Rules of Appellate Procedure permit an immediate appeal of any order granting injunctive relief, a successful claim often involves convincing not only the trial court to enter the injunction, but also the appellate court to affirm it.3 With that in mind, an effective litigator takes steps in the trial court to insulate a hard-earned injunction from the inevitable appellate attack. This article discusses some of those steps.
Request Both Preliminary and Final Injunctive Relief
An injunction is a court order commanding or preventing an action, which is often sought under exigent circumstances at the inception of a lawsuit.4 A temporary (i.e., preliminary) injunction is available to prevent irreparable harm by maintaining the status quo until a trial can be held.5 A permanent (i.e., final) injunction can only be obtained after a trial.6
While the “permanent” label infers that injunctive relief is being indefinitely ordered, not all permanent injunctions are perpetual.7 Permanent, in this context, only means that the injunction was entered after a trial.8 For the sake of clarity, an effective litigator refers to temporary injunctions as preliminary and permanent injunctions as final.9
Since the purpose of a preliminary injunction is merely to preserve the status quo until trial, a preliminary injunction is reversible if the movant has not also requested a final injunction.10 Moreover, at least one court has held that procuring a preliminary injunction does not entitle the movant to prevailing party attorneys’ fees unless a final injunction also issues.11 Accordingly, an effective litigator’s pleading demands both preliminary and final injunctive relief.
Do Not Seek to Enjoin Behavior That Is Not the Proper Subject of an Injunction
While the terms “preliminary” and “final” apply to an injunction’s procedural status, the terms “mandatory” and “prohibitory” apply to its effect. Specifically, orders commanding a person or entity to take a particular action are mandatory injunctions (e.g., requiring the operators of a cemetery to disinter the plaintiff’s father; enforcing a restrictive agreement on real property; effectuating specific performance of a contract).12 Orders preventing action are prohibitory (e.g., prohibiting a condominium association from violating its declaration; prohibiting a developer from building; prohibiting spouses from harassing each other).13
This distinction is important because while prohibitory injunctions may be perpetual in duration,14 mandatory injunctions may not15 because courts are loathe to take on the duty of indefinitely overseeing specific performance.16 Additionally, mandatory injunctions are rarely entered before the final trial is held.17 Aware of these distinctions, an effective litigator never requests perpetual mandatory injunctive relief and avoids requesting temporary mandatory injunctive relief when possible.
Florida courts have also refused to enjoin parties to comply with an employment or personal service contract,18 comply with a lease term,19 pay damages before a judgment is entered,20 from making defamatory or libelous statements,21 and dissipating assets.22 Accordingly, an effective litigator does not request injunctive relief concerning these issues.
Strictly Follow All Procedural Requirements
In light of the Supreme Court’s admonition that injunctive relief is an “extraordinary remedy to be used sparingly,” an order granting such relief will not be affirmed on appeal unless the movant strictly followed all procedural requirements.23 Therefore, an effective litigator ensures that the record on appeal reflects compliance with those procedures.
Preliminary injunctions sought ex parte are subject to heightened “due process requirements which must be followed” by the movant, its counsel, and the trial court.24 The failure to strictly abide by those requirements, which are articulated in Fla. R. Civ. P. 1.610(a)(1), constitutes reversible error.25 Specifically, the movant must include “specific facts” in its verified pleading or affidavit supporting its allegation that it will sustain immediate and irreparable injury, loss, or damage if the hearing is delayed until the adverse party can be heard in opposition.26 Movant’s counsel must articulate and certify in writing that 1) all efforts that have been made to give notice to the opposing party, and 2) all reasons why notice should not be required.27 And the court must include the following in the ex parte injunction order: 1) an endorsement with the date and hour of entry; 2) a definition of the injury; 3) factual findings why the injury may be irreparable; and 4) the reasons why the order was granted without notice.28
Since no meaningful evidentiary hearing can be held ex parte, the movant’s verified pleading or affidavit is the only source the trial court can consider when making its findings.29 Therefore, an effective litigator drafts a proposed preliminary injunction in tandem with the verified pleading or affidavit. By doing so, the litigator ensures that every one of the findings the court needs to make will be not only pled, but also supported by verified testimony.
Different procedural requirements apply if a preliminary injunction is not sought ex parte. The movant must provide notice that includes a “meaningful opportunity to prepare and defend” and “to offer evidence and to secure a record of the proceedings.”30 Seven days’ notice has been deemed sufficient.31 The notice must also state that evidence will be taken at the hearing.32 And where “the rights of innocent third parties may have a bearing on the availability of injunctive relief,” then they should at least be served with the notice of hearing33 if not also named as a party to the lawsuit.34 Therefore, an effective litigator serves a formal notice of an evidentiary hearing on the opponent and all relevant third parties seven days before the hearing, or as soon as possible given the circumstances.35 A court reporter should be present at the hearing.
Final injunctions are subject to yet another procedure. They will be reversed if entered before the case is at issue and before Fla. R. Civ. P. 1.440’s requirements of setting the matter for trial are followed.36 Therefore, an effective litigator makes sure all motions directed to the pleadings are disposed of before requesting a trial date. Though there is no case law directly on point, a trial may be unnecessary if the injunction claim is contained in the movant’s verified pleading and the nonmoving party has been defaulted because, in that instance, the nonmovant has admitted all of the well-plead allegations and nonliquidated damages are not at issue.37
Include Required Findings and Introduce Evidence to Justify Those Findings
Entitlement to a preliminary injunction is predicated on the movant establishing the following elements: 1) a substantial likelihood of success on the merits; 2) lack of an adequate remedy at law; 3) irreparable harm absent the entry of an injunction; and 4) injunctive relief will serve the public interest.”38 “Clear, definite, and unequivocally sufficient factual findings must support each of these four criteria before the court may enter the injunction.”39 An effective litigator includes each of the four elements as headings within the injunction order and includes the relevant factual findings under each heading. This makes it easier for the appellate court to review and, ultimately, affirm.
The same concept applies for a final injunction, which involves three elements: 1) a clear legal right; 2) an inadequate remedy at law; and 3) irreparable harm will arise absent injunctive relief.40 But the findings of fact and conclusions of law stemming from the preliminary hearing are not binding on the court at the final injunction trial.41 Therefore, the denial of a preliminary injunction does not preclude the entry of a final injunction at the conclusion of a trial.42 And the entry of a preliminary injunction does not automatically entitle the movant to a final injunction.43
If a statute provides the right to injunctive relief, then the injunction — and sometimes the pleading — must also include findings specific to that statute. For example, the pleading and injunction enforcing a noncompete agreement must articulate the applicable “legitimate business interests” defined in F.S. §542.335.44 A §726.108 pleading and injunction preventing further disposition of an asset should articulate the facts supporting the legal conclusion that the transfer was fraudulent.45 And a §784.046(2) injunction for “repeat violence” is reversible if it does not include a finding that the respondent committed at least two incidents of violence or stalking.46 An effective litigator is aware of all relevant case-specific elements and includes them under their own headings within the injunction order and, if relevant, the pleading.
Notice an Evidentiary Hearing Concerning the Injunction Bond and Include the Court’s Findings in the Injunction Order
While bonds are not required for final injunctions,47 with few exceptions,48 preliminary injunctions are defective if they do not require the movant to post a bond.49 The purpose of the bond is to satisfy any damages sustained by the enjoined party should it later be determined that the injunction was wrongfully issued.50 Since the amount of damages recoverable is limited to the amount of the bond, the amount of the bond must constitute the trial court’s determination of foreseeable damages based on the good faith representations that are before it.51 Accordingly, an injunction order may be reversed if an evidentiary hearing is not held to determine the amount of those damages.52
If the trial court does not conduct an evidentiary hearing on the bond amount, the enjoined party does not expeditiously request one, and the injunction is reversed, then the damages for the wrongful injunction are not capped by the erroneously set bond.53 Accordingly, an effective litigator avoids this scenario by not only reserving enough time at the evidentiary hearing to argue entitlement to an injunction and the amount of the bond, but also serving a notice alerting the opponent that both issues will be addressed at the hearing.
Be Prepared to Enforce the Injunction Throughout the Appeal
An automatic stay by virtue of posting a supersedeas bond is only available when the injunction is mandatory.54 The amount of the bond must be determined by the trial court, presumably at an evidentiary hearing.55 Until and unless an appropriate bond is posted, an effective litigator is prepared to immediately obtain a show cause order should the enjoined party violate the injunction during the appeal.
Pressure from the client to obtain injunctive relief immediately can make it very tempting to quickly scratch something together to file with the court. Effective litigators resist this temptation by considering how a hastily filed injunction request will be viewed by an appellate panel that is not subject to the same time pressures. Developing this habit will not only go a long way toward creating a reputation as a “highly effective” lawyer, but will also circumvent the need to explain to the client why their precious injunction has been reversed on a technicality.
1 Stephen R. Covey died July 16, 2012. Recognized as one of Time magazine’s 25 most influential Americans, Covey sold more than 20 million books.
2 Stephen R. Covey, The 7 Habits of Highly Effective People (1989).
3 Fla. R. App. P. 9.130(a)(3)(B).
4 Black’s Law Dictionary (9th ed. 2009).
5 Michele Pommier Models, Inc. v. Diel, 886 So. 2d 993, 995-96 (Fla. 3d DCA 2004).
6 LaRose v. A.K., 32 So. 3d 77, 78 (Fla. 2d DCA 2009) (holding that preliminary injunction is improperly entered when it bypasses the procedures for a final injunction); Skyway Trap & Skeet Club, Inc. v. Sw. Fla. Water Mgmt. Dist., 854 So. 2d 676 (Fla. 3d DCA 2003).
7 Samanka v. Brookhouser, 899 So. 2d 1190 (Fla. 2d DCA 2005) (reinstating final domestic violence injunction that “was to remain in effect for two years”); Xerographics, Inc. v. Thomas, 537 So. 2d 140, 143 (Fla. 2d DCA 1988) (instructing trial court to enter final injunction enforcing noncompete agreement “for a period of one year from the issuance of the trial court’s order”).
8 Skyway Trap, 854 So. 2d at 679.
9 Diaz v. John Adcock Ins. Agency, Inc., 729 So. 2d 465, 466 (Fla. 4th DCA 1999).
10 But see Int’l Village Ass’n., Inc. v. Schaaffee, 786 So. 2d 656, 658 (Fla. 4th DCA 2001) (citing for this proposition while recognizing an exception for domestic violence injunctions).
11 Baratta v. Valley Oak Homeowner’s Ass’n at the Vineyards, Inc., 891 So. 2d 1063, n.2 (Fla. 2d DCA 2004).
12 Wilson v. Sandstrom, 317 So. 2d 732, 736 (Fla. 1975); Fox v. Madsen, 12 So. 3d 1261, 1263 (Fla. 4th DCA 2009); Trueba v. Pawley, 407 So. 2d 945, 946 (Fla. 3d DCA 1981).
13 Gulf Bay Land Inv., Inc. v. Trecker, 955 So. 2d 1157, 1158 (Fla. 2d DCA 2007); Miguez v. Miguez, 824 So. 2d 258 (Fla. 3d DCA 2002); Ares v. Cypress Park Garden Homes I Condo. Ass’n, Inc., 696 So. 2d 885, 887 (Fla. 4th DCA 1997).
14 Munao, Munao, Munao & Munao v. Homeowners Ass’n of La Buona Vita Mobile Home Park, Inc., 752 So. 2d 1272 (Fla. 4th DCA 2000).
15 Abbey Park Homeowners Ass’n v. Bowen, 508 So. 2d 554, 555 (Fla. 4th DCA 1987); Florida Jai Alai, Inc. v. S. Catering Servs., Inc., 388 So. 2d 1076, 1078 (Fla. 5th DCA 1980).
16 Florida Jai Alai, 388 So. 2d at 1078; Collins v. Pic-Town Water Works, Inc., 166 So. 2d 760, 762 (Fla. 2d DCA 1964).
17 Trust Co. of Florida v. Crider, 136 So. 434, 436 (Fla. 1931); Grant v. GHG014, LLC, 65 So. 3d 1066 (Fla. 4th DCA 2010).
18 Montaner v. Big Show Prods., S.A., 620 So. 2d 246, 248 (Fla. 3d DCA 1993); SeaEscape, Ltd., Inc. v. Maximum Mktg. Exposure, Inc., 568 So. 2d 952, 954 (Fla. 3d DCA 1990).
19 Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 481 (Fla. 4th DCA 2006); Cardinal Inv. Grp., Inc. v. Giles, 813 So. 2d 262, 263 (Fla. 4th DCA 2002).
20 Hiles v. Auto Bahn Fed’n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986).
21 Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013); but see Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371, 1376 (Fla. 4th DCA 1987) (recognizing a limited exception when the defamatory words were made in the furtherance of the commission of another tort).
22 Briceño v. Bryden Investments, Ltd., 973 So. 2d 614, 617 (Fla. 3d DCA 2008); Lawhon v. Mason, 611 So. 2d 1367, 1368 (Fla. 2d DCA 1993) (may be permissible under Ch. 726 if a fraudulent transfer claim is alleged and proven).
23 State v. Beeler, 530 So. 2d 932, 933 (Fla. 1988); Highway 46 Holdings, LLC v. Myers, 2012 WL 5456404 *3 (Fla. 5th DCA 2012).
24 United Farm Workers of Am., AFL-CIO v. Quincy Corp., 681 So. 2d 773, 776 (Fla. 1st DCA 1996).
25 Id. at 777.
26 Fla. R. Civ. P. 1.610(a)(1)(A).
27 Fla. R. Civ. P. 1.610(a)(1)(B).
28 United Farm Workers, 681 So. 2d 776 at 777 (interpreting Fla. R. Civ. P. 1.610(a)(2)).
29 Fla. R. Civ. P. 1.610(a)(2).
30 Nelson Tree Service, Inc. v. Gray, 978 So. 2d 198, 200 (Fla. 1st DCA 2008).
31 Harrison v. Palm Harbor MRI, Inc., 703 So. 2d 1117, 1119 (Fla. 2d DCA 1997).
32 Herranz v. Siam, 2 So. 3d 1105, 1106-1107 (Fla. 3d DCA 2009).
33 USI Ins. Servs. of Florida Inc. v. Pettineo, 987 So. 2d 763, 767 (Fla. 4th DCA 2008); Autozone Stores, Inc. v. Northeast Plaza Venture, LLC, 934 So. 2d 670 (Fla. 2d DCA 2006).
34 Leighton v. First Universal Lending, LLC, 925 So. 2d 462, 465 (Fla. 4th DCA 2006).
35 Notices of hearing are not automatically included in the record on appeal. See Fla. R. App. P. 9.200(a)(1). Directions to clerk must be timely filed if the movant intends to rely on it during the appeal. See Fla. R. App. P. 9.200(a)(3).
36 Skyway Trap, 854 So. 2d at 679-680; Watkins v. Colonial Life & Acc. Ins. Co., 719 So. 2d 934, 935 (Fla. 5th DCA 1998); Scarbrough v. Meeks, 582 So. 2d 95, 96 (Fla. 1st DCA 1991); Int’l Jai-Alai, 563 So. 2d at 1117.
37 Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012).
38 Liberty Counsel v. Florida Bar Bd. of Governors, 12 So. 3d 183, n.7 (Fla. 2009).
39 Edwards v. Harris, 964 So. 2d 196, 197 (Fla. 1st DCA 2007); Wade v. Brown, 928 So. 2d 1260, 1261 (Fla. 4th DCA 2006).
40 Liberty Counsel, 12 So. 3d 183 at n.7.
41 Charlotte County v. Vetter, 863 So. 2d 465, 468 (Fla. 2d DCA 2004).
42 Ladner v. Plaza Del Prado Condo. Ass’n, Inc., 423 So. 2d 927, 929 (Fla. 3d DCA 1982).
43 Metropolitan Dade County v. Parkway Towers Condo. Assn., 281 So. 2d 68, 69 (Fla. 3d DCA 1973).
44 Edwards, 964 So. 2d at 197 (requiring factual findings that applied the factors in §542.335(1)).
45 Fla. Stat. §§726.105 and 726.106.
46 Gasilovsky v. Ben-Shimol, 979 So. 2d 1179, 1180 (Fla. 3d DCA 2008).
47 Int’l Longshoremen’s Ass’n, Local 1416, AFL-CIO v. E. S.S. Lines, Inc., 206 So. 2d 473, 474 (Fla. 3d DCA 1968). Also note that Fla. R. Civ. P. 1.610(b) only discusses bonds in conjunction with temporary (i.e., preliminary) injunctions.
48 No bond shall be required for the issuance of a temporary injunction issued either “on the pleading of a municipality or the state or any officer, agency, or political subdivision” or “solely to prevent physical injury or abuse of a natural person.” Fla. R. Civ. P. 1.610(b).
49 Cadicamo v. Alite, 4 So. 3d 699, 700 (Fla. 2d DCA 2009); Florida High Sch. Activities Ass’n v. Mander ex rel. Mander, 932 So. 2d 314, 315-16 (Fla. 2d DCA 2006).
50 Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So. 2d 1018, 1021-22 (Fla. 1989) (standard for determining whether an injunction was wrongfully issued is simply whether the petitioning party was unentitled to injunctive relief); Aviation Investments, Inc. v. Johanson, 177 So. 2d 369, 370 (Fla. 3d DCA 1985).
51 Parker Tampa Two, 544 So. 2d at 1021-22.
52 Flickenger v. R.J. Fitzgerald & Co., Inc., 732 So. 2d 33, 35 (Fla. 2d DCA 1999); but see Offshore Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So. 2d 510, 511 (Fla. 4th DCA 2001) (affirming injunction order but remanding for evidentiary hearing on bond amount).
53 Lotenfoe v. Pahk, 747 So. 2d 422, 425 (Fla. 2d DCA 1999); SeaEscape, 568 So. 2d 952 at 956.
54 Powell v. Fla. Land & Improvement Co., 26 So. 700, 701 (Fla. 1899); City of Miami v. Cuban Vill-Age Co., 143 So. 2d 69, 70 (Fla. 3d DCA 1962).
55 Holgate v. Jones, 111 So. 626, 628 (Fla. 1927) (“Where the judgment is, in whole or in part, other than a money judgment, the amount and condition of a supersedeas bond must be determined by the court below….”).
Thomas Ward is an appellate practitioner and commercial litigator with Rennert Vogel Mandler & Rodriguez, P.A., in Miami. He graduated, cum laude, from the University of Miami’s School of Law.
This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.