The Florida Bar

Florida Bar Journal

Mandatory Injunctions: The Forgotten Art of Putting the Horse Back in the Proverbial Barn

Featured Article

Illustration of horse and barn The authors are reasonably certain that if, at your next state or local bar function, you were to randomly ask 100 attendees to define and explain the purpose of an injunction, most, if not all, would respond with some variation of the following: An injunction is an extraordinary form of equitable relief that is intended to restrain a person or entity from engaging in a certain type of conduct in order to maintain the status quo while a court more thoroughly examines and, ultimately, decides the propriety of that conduct in an underlying legal action.2 Of course, they would be correct. Indeed, the Southern Reporters are overflowing with cases in which Florida courts have used injunctions to restrain all sorts of behaviors, e.g., trespass,3 public and private nuisances,4 improper acts by public officials,5 the exhibition of allegedly obscene material,6 tortious interference with business relationships,7 breaches of noncompete agreements,8 trademark infringement,9 and the unauthorized practice of law,10 to name a few.

The authors are equally convinced, however, that if you were to ask that same random sampling of colleagues if an injunction can ever be used to force another to act, many, if not most of them would unhesitatingly and confidently respond with an emphatic “no.” They, of course, would be wrong. The truth is, while few practitioners may realize it, for more than a century, Florida courts, including the Florida Supreme Court, have used injunctions — more specifically, mandatory injunctions — to compel a party to act in order to prevent certain injury or damage to another, to property, or to the general public.11 This article traces the history of this extraordinary equitable remedy, discusses its essential elements, and illustrates some of the ways in which it has been and can be used to secure the desired relief — often without the need for and expense of protracted litigation.

Mandatory Injunctions: The Early Years
Florida litigants first began to avail themselves of mandatory injunctive relief in the early 1900s. In fact, by 1907, the case of Taylor v. Florida East Coast Ry. Co., 45 So. 574 (Fla. 1907), which would become a seminal decision on the use of mandatory injunctions as a means of facilitating the resolution of commercial disputes, already had made its way to the Florida Supreme Court for what would be the first of its two visits. The case came out of a dispute between a hotel owner in Rockledge and a local railroad company. In 1892, the hotelier and the railroad entered into a contract, whereby the hotelier agreed to convey certain lands and monies to the railroad so that the railroad could expand its main line. In exchange for and as a precondition to that conveyance, the railroad agreed to build and maintain 1) a spur track from its main line to a point near where the hotelier intended to remodel an existing hotel, and 2) a depot and platforms at the spur track’s point of termination. The railroad also agreed to operate all of its regular passenger trains along the spur track throughout the busy “winter tourist season.”

Upon completion of the spur track and depot, the hotelier and his wife conveyed the agreed upon lands to the railroad. Then, relying on the terms and cognizant of the “great advantages” flowing from their agreement, the business-savvy hotelier changed his plans. Specifically, instead of simply remodeling his existing hotel, the hotelier incurred considerable expense (approximately $65,000) to build a larger and more modern hotel that could accommodate even more tourists than its predecessor. In fact, the hotelier expanded his existing holdings by purchasing an additional parcel just north of the hotel, which he later improved at an additional cost of $18,000. Once the spur track, depot, and hotel were complete in the winter of 1894, the hotelier was able to profitably operate his hotel, based, in large part, on its location near the Indian River and its accessibility to tourists by virtue of the new spur track that terminated within 200 feet of the hotel’s front doorstep.12

However, shortly after the hotelier died in 1905, leaving his wife and children as the beneficiaries of his estate, things changed dramatically. In fact, less than a year later, the railroad, whose owners also held a controlling interest in a corporation that owned and operated hotels situated to the north and south of the Rockledge hotel along its main line, secretly arranged for a large force of workmen to remove the spur track and portions of the depot before abandoning them. The workers then constructed a new depot on the main line at least half a mile from the Rockledge hotel, in an area that the hotelier’s widow characterized as “a most undesirable, unsuitable, and swampy locality, extremely unattractive in appearance and unsuited for the purposes of such depot.” To add insult to injury, the railroad also relocated the telegraph, express offices, and baggage rooms from the Rockledge location to the new depot, all without the knowledge and consent of the hotelier’s widow.13

The widow and her sons responded by filing suit against the railroad, in which they sought specific performance of their agreement with the railroad, with relief to include restoration of the spur track and depot and reinstatement of passenger traffic, as well as temporary injunctive relief and an accounting. In support of their complaint and request for a temporary injunction, plaintiffs filed several affidavits, which highlighted the harm the plaintiffs claimed to have suffered and likely would continue to suffer as a result of the railroad’s abandonment of the spur track and depot and the consequent disruption of tourist traffic to the hotel. The railroad opposed the motion by filing an affidavit of its general manager who claimed that, because the agreement between the parties was silent with respect to its duration, the railroad had more than fulfilled its contractual obligations by maintaining the spur track and depot and operating its passenger trains over that track for 13 years. In addition, the railroad contended that, due to a change in market conditions during those 13 years, it would lose valuable time and do a considerable disservice to its passengers if it were required to continue to make an additional stop at the Rockledge hotel. Based on the latter considerations, the trial court denied the plaintiffs’ motion for a temporary injunction and dismissed their complaint, concluding that they had an adequate remedy at law and, therefore, equitable relief was not available.14

On appeal, the Florida Supreme Court recognized that the railroad, as common carrier, had an undeniable “duty to render a service adequate to meet all the just requirements of the public, including reasonable dispatch, convenience, regularity, and promptness of transportation of passengers, provision and maintenance of adequate depot facilities suited to the business and convenience of the communities along the road[.]” However, the court hastened to add that “[those duties did] not relieve the [railroad] from its contract[ual] obligations to individuals, when an observance of [those] obligations [did] not materially and injuriously affect the rights of the public.” After performing a public interest analysis, the court could not find anything to suggest that the operation of the railroad’s passenger trains over the spur track leading to the plaintiffs’ Rockledge hotel would adversely affect the substantial interests of the public. To the contrary, the court concluded that “the public was better served by the depot on the spur track near the hotel.”15 Accordingly, the court reversed the trial court’s order of dismissal and remanded the action with directions to require the railroad to answer the complaint. In doing so, the court emphasized that, on remand, the trial court should grant “an appropriate mandatory injunction. . . unless the [railroad could] show that the interests of the general public [would] be injuriously affected thereby or that the duration of the contract was not to be indefinite as to time as alleged.”16

The case returned to the Supreme Court less than a year later17 on the railroad’s appeal from the trial court order “restrain[ing] and enjoin[ing] [the railroad] from failing or refusing to build and construct, on or before the [first] day of October 1908, in a proper and safe manner, a spur track from the main [line]. . . to a point where [the railroad]’s station or depot was located” prior to October 1906. The order also required the railroad “to maintain said spur track and depot, and to operate all of defendant’s regular passenger trains upon said spur track to said depot during what is known as the ‘winter tourist season[.]’”18 the court ultimately reversed the trial court’s order. In doing so, however, the court laid the foundation for future Florida litigants’ use of mandatory injunctive relief by 1) acknowledging that mandatory injunctions are an appropriate vehicle for “commanding [a] defendant to do some positive act”; and 2) providing some initial definition as to the circumstances in which its use would be permitted ( i.e., “where the right [to the requested relief] is clear and free from reasonable doubt” and, even in such circumstances, only “upon [a] final hearing [for the purpose of] execut[ing] the judgment or decree of the court”).19

From the court’s perspective, the foregoing principles applied with particular force to the facts before it, in that 1) the trial court’s order “mandatorily required the defendant to do all and everything that the [hotelier’s] bill prays that [the railroad] be required to do”; and 2) while the dispute arose out of a contractual dispute between private parties, it indisputably “involve[d] the paramount rights of the general public in the safe and expeditious operation of [the] railroad.” The court went on to conclude that such rights could not be subjugated to the contractual rights of private parties, unless and until the trial court was “satisfied, from the proofs on a full and final hearing,” that the granting of the relief sought would not operate to the “material detriment” of the public. Accordingly, the court reversed the order appealed from on the grounds that it was “irregularly and prematurely made” and remanded the case so that the trial court could make the necessary factual findings.20

The Remedy Takes Root: Zetrouer and Kellerman
In the mid-1920s and early 1930s, the Florida Supreme Court issued two more decisions that would figure prominently in Florida’s jurisprudence regarding the proper scope of mandatory injunctive relief, Zetrouer v. Zetrouer, 103 So. 625 (1925), and Kellerman v. Chase & Co., 135 So. 127 (Fla. 1931). In Zetrouer, a landowner and farmer, R.G. Zetrouer (R.G.), who, together with his ancestors and predecessors, had used a nonpublic road leading from his home to his farm and cattle range “continuously, uninterruptedly, and adversely to any and all claims and rights of any and all persons” for more than 30 years, filed suit against a defendant landowner, A.B. Zetrouer (A.B.), who had erected fences on the roadway rendering it impassable and unusable.

Plaintiff’s bill included a claim for mandatory injunctive relief to compel the defendant to remove the fences. In support of that petition, R.G. submitted affidavits and other proofs to support his contention that the road closure “cause[d] [him] special or peculiar injury” ( i.e., injury that was “different in kind and not merely in degree from that suffered by the public at large”). Specifically, plaintiff maintained that the road not only was the most direct route between his home and his farm, but the only road that was passable year around. Moreover, the alternative route was via a nonpublic roadway that could be closed at any time, and its use, in any event, subjected plaintiff to extra expense and undue hardship.21

After examining plaintiff’s proofs, the trial court granted a temporary mandatory injunction directing the defendant to remove the fences. Ever the good neighbor (and relative), A.B. appealed. Citing its earlier decision in Taylor, the court again recognized the fundamental distinction between what it characterized as preventive or prohibitory injunctions and mandatory injunctions, noting that the former “operates to restrain the commission or continuance of an act and to prevent a threatened injury, while a mandatory injunction. . . goes beyond a mere restraint and commands acts to be done or undone.” Moreover, precisely because they are used as a tool for compelling a party to perform an affirmative act, the court emphasized that “mandatory injunctions are rarely granted before [a] final hearing, or before the parties have full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be.” However, the court made it clear that, in evaluating the propriety and timing of the issuance of mandatory injunctive relief, “each case must rest on its own facts and circumstances.”

On the facts before it, the Zetrouer court concluded that the trial court acted within its discretion in issuing the temporary mandatory injunction based on its having satisfied itself, after notice and a hearing, “that irreparable injury would be done [to R.G. if] the obstructions set out in said amended bill of complaint [were] allowed to remain.” Accordingly, the court affirmed the entry of the order “without prejudice to enter such decree on final hearing as the facts in the case may warrant.”22

Six years later, the court reached a similar result in Kellerman, in a factual scenario that would lay the foundation for the subsequent evolution of the remedy as a means of resolving private contractual disputes in the years to come. In Kellerman, the plaintiff entered into a contract with the defendant grower, whereby, in exchange for a loan of $100, the defendant agreed to deliver to the plaintiff, in field crates, its entire crop of tomatoes for the 1929-30 growing season. The agreement further provided that, in the event that the defendant failed to discharge its contractual obligations, the defendant would pay the plaintiff liquidated damages of $0.25 for each crate not marketed through plaintiff, without prejudice to the plaintiff’s other remedies, including its right to seek injunctive relief. When plaintiff learned that the defendant did not intend to deliver its crop of tomatoes and, instead, was delivering and intended to continue to deliver and market them through another packing company in which defendant had a financial interest, plaintiff filed suit, seeking, among other things, the entry of a mandatory injunction. The trial court granted the injunction, and the grower appealed. The Florida Supreme Court affirmed.23

In doing so, the court acknowledged the general principle governing the issuance of mandatory injunctions already firmly established by its precedents, namely that, because it is tantamount to “awarding execution before trial and judgment,” a mandatory injunction should “rarely [be] granted before [a] final hearing or before the parties have [a] full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be.” However, the court went on to hold that where, as in the case before it, it appears from the proofs offered that a “plaintiff has a clear right free from reasonable doubt to invoke the remedy,” a trial court has the discretion to do so. According to the court, the exercise of that discretion is particularly appropriate when “delay[ing] the remedy would necessarily involve a denial of [a contractual right for which the plaintiff offered valuable consideration].” That certainly was the case in Kellerman, given plaintiff’s proof that “the tomato season cover[ed] a period of only some five or six weeks, and [what was then] common knowledge that the tomato crop is of the most perishable character.” Thus, the court concluded that the case presented “a proper one for the issuance of [a] mandatory injunction.”24

The Evolution of the Remedy: Essential Elements and the Standard of Proof
Over time, Florida appellate courts, including the Florida Supreme Court, began to better define the factual circumstances in which the issuance of a mandatory injunction was appropriate, as well as the elements and burden of proof required to establish a litigant’s entitlement to such relief. Not surprisingly, several of the elements closely mimic those that have long been required to secure a more traditional, prohibitory injunction. However, because, in most instances, a mandatory injunction seeks to affirmatively alter, rather than simply maintain or preserve the status quo, there are fundamental differences in the burdens assigned to the movants who seek such “extraordinary and drastic” forms of equitable relief.25

In the case of preventive injunctions, it is enough that a movant for preliminary injunctive relief make a “clear showing” that 1) there is a “substantial likelihood” that it ultimately will prevail on the merits; 2) there is a “substantial threat” that it will suffer “irreparable injury” unless the injunction issues; 3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 4) the injunction, if issued, would not be adverse to the public interest.26 Moreover, the movant’s burden is one of persuasion, recognizing, of course, that the failure to satisfy that burden with respect to any one of the four essential elements will be fatal to its motion for injunctive relief.27

A party seeking mandatory injunctive relief also must establish that irreparable harm will result if the injunction is not issued and that he or she does not have an adequate remedy at law.28 Moreover, when applicable, a private party also has to demonstrate that the relief it seeks is either consistent with or will not significantly contravene what the court deems to be a compelling public interest.29 However, unlike a prohibitory injunction, it is not enough for a movant for mandatory injunctive relief to “merely” demonstrate that there is a substantial likelihood that he will prevail on the merits of the underlying dispute. Instead, a mandatory injunction will issue only if the movant establishes that it has “a clear legal right [to the relief it is seeking], free from reasonable doubt.”30

The Florida Supreme Court’s 1975 decision in Wilson v. Sandstrom, 317 So. 2d 732 (Fla. 1975), provides a clear illustration of the application of the foregoing distinctions. In Wilson, the owner and operator of the Flagler Dog Track filed suit seeking to compel 18 kennel owners to comply with what the plaintiff claimed was the owners’ contractual obligation to furnish the racing greyhounds needed to operate the track. The trial court, in turn, granted the plaintiff’s motion for a temporary mandatory injunction, based, in part, on its findings, after an evidentiary hearing, that the track was suffering and would continue to suffer irreparable harm as a result of the kennel owners’ failure to supply dogs and that the State of Florida, which was permitted to intervene in the action, was suffering a loss of $64,000 in tax revenues per day. Among other things, the order required the kennel owners to produce their greyhounds for racing by a date certain or risk having a third-party receiver take custody of the dogs for that purpose. The kennel owners refused to comply with the order and filed an interlocutory appeal. In the interim, the 18 owners were adjudicated guilty of contempt and incarcerated.31

The Florida Supreme Court affirmed. The court began its analysis by tracing the history of mandatory injunctive relief in Florida, quoting liberally from its earlier decisions in Kellerman, Zetrouer, and Taylor. It noted that such relief is a proper means of effectuating what it characterized as “specific performance of a contract” where, as in the case before it, a party is able to demonstrate that it has a “clear legal right” to the relief that it seeks, does not have an adequate remedy at law, and will suffer irreparable harm.32 Moreover, the court emphasized that mandatory injunctive relief is particularly appropriate when the conduct at issue infringes on the public interest. The court found the latter consideration especially compelling in the case of the kennel owners’ breach of their contractual obligation to provide the track with dogs, given uncontroverted evidence from the state of Florida that the loss of greyhound pari-mutuel revenue would have a “tremendous impact” on the state and county fiscal budgets and an equally profound effect on the public’s already waning confidence in the state’s “ability to properly regulate the gambling activities in pari-mutuel wagering.” Based on these and other considerations, the court concluded that the trial court properly exercised its discretion in entering the order granting a mandatory injunction.33

Modern Day Applications of the Remedy: A Case Study
The Florida Supreme Court has gone out of its way to emphasize that mandatory injunctions are an “extraordinary,” “harsh,” and “drastic” remedy that are “looked upon with disfavor” and, therefore, are to be used “sparingly and cautiously.” However, that language has not discouraged Florida state and federal courts in the post- Wilson era from sanctioning the use of mandatory injunctions as a means of compelling individuals, corporations, associations, partnerships, and, on occasion, governmental agencies to perform a wide variety of affirmative acts, including orders mandating 1) the co-owner of a Panama City nightclub to re-open and operate the club during the “local season” and to pay himself and his co-owner stipulated percentages from profits;34 2 ) a property owner in a platted subdivision to remove a dock he had constructed from a common park to the intracoastal waterway that interfered with the riparian rights of other property owners;35 3 ) a cemetery to disinter the body of plaintiffs’ deceased father so that his remains could be conclusively identified;36 4 ) private owners to remove all dangerous substances, contaminants, and pollutants from their landfill and borrow pit, so as to mitigate the real and substantial danger they presented to the Eldridge-Wilde wellfield, a community water source;37 5 ) a used car parts dealer to remove more than 50 wrecked cars that were obstructing Gulf Power’s access to an easement it needed to maintain and service transmission lines;38 and 6) a homeowners’ association to remove “speed bumps” from a private roadway that the association shared with nonassociation homeowners.39

In fact, in just the past 10 years, Florida litigants and courts have utilized mandatory injunctions to compel 1) the removal of a portion of a driveway constructed in violation of the declaration of restrictions in a subdivision;40 2 ) the Department of State, Division of Elections to declare that a candidate’s withdrawal created a vacancy and to allow the party to designate a nominee to replace the vacancy;41 3 ) an electrical power company to pay the city its franchise fee from an expired franchise agreement during a holdover period following the expiration of the original agreement in order to prevent the power company from being in a position to extort favorable terms from the city;42 4 ) the State of Florida to provide Medicaid to a five-year-old boy, who had been diagnosed with autism spectrum disorder, to cover his applied behavioral analysis therapy;43 5 ) the removal of telecommunications towers constructed in a park that violated deed restrictions while simultaneously affording the telecommunications company 24 months to find an alternate location for the towers;44 6 ) a commercial landlord to comply with the terms of a settlement agreement obligating the landlord to repair or replace an air conditioning system in the tenant’s restaurant;45 and 7) the removal of video depositions that had been posted by a law firm on a public video sharing website.46

However, one of the more notable examples of the flexibility and power of a mandatory injunction never found its way into the Southern or Federal Reporter system. In Imperial Air, S.A. v. JBQ Aviation Corp., Case No. 1:93-cv-02215-DTKH (S.D. Fla.), a Florida-based aircraft lessor (JBQ) leased a Convair 580 aircraft to a Peruvian airline (Imperial), that, in turn, provisionally registered the aircraft for use in Peru. As part of the parties’ lease agreement, Imperial was required, but failed, to simultaneously execute a power-of-attorney in favor of JBQ, which, among other things, would authorize JBQ to deregister and, thereby, ground the aircraft in the event of a default. Consequently, JBQ never de-registered the aircraft in the United States. Thereafter, the parties entered into an agreement for the lease of a second Convair 580 aircraft on terms similar to the first lease. However, during its pre-delivery inspection of the second aircraft, JBQ discovered that the second aircraft required significant structural repairs, including the replacement of a number of corroded components, in order to place it in airworthy condition, the completion of which would make it impossible for JBQ to deliver the aircraft within the time contemplated by the lease agreement. Accordingly, JBQ offered to rescind the lease agreement, but Imperial refused and directed JBQ to continue to work on the aircraft.

When JBQ was unable to deliver the second aircraft on time, Imperial, which already had been slow in making payments due under the first lease agreement, stopped making payments entirely. Under the terms of the first and second lease agreements, Imperial’s nonpayment of rent allowed JBQ to terminate, and JBQ did, in fact, terminate both lease agreements. However, Imperial refused to return the first aircraft to JBQ. Instead, it continued to operate the aircraft and filed suit against JBQ for breach of contract and declaratory and injunctive relief. Specifically, Imperial sought the entry of an order declaring that JBQ was not entitled to repossess the aircraft and enjoining JBQ from taking action to deregister the aircraft in Peru.

JBQ, in turn, filed an answer and counterclaim, while simultaneously pursuing what it deemed to be its contractual right to deregister the aircraft in Peru. Despite the fact that JBQ ultimately succeeded in deregistering and grounding the aircraft, Imperial continued to refuse to return it to JBQ. Instead, Imperial sought and initially convinced the magistrate judge to recommend issuance of a preliminary mandatory injunction that, inter alia, required JBQ to deregister the aircraft in the United States and re-register it in Peru, while simultaneously compelling Imperial to bring its financial obligations under the first lease agreement current and making provision for JBQ to inspect and inventory the aircraft.

JBQ, in turn, successfully challenged the magistrate’s report and recommendation and filed its own motion for mandatory injunctive relief, based on evidence it had received that 1) the aircraft was being used in a manner contrary to its operations and design limitations (e.g., although it was only configured to transport a total of 51 passengers, Imperial routinely used the aircraft to carry as many as 71 passengers); 2) Imperial was not maintaining the aircraft in accordance with the terms of the lease agreement; 3) Imperial was scavenging parts from the aircraft and using them on other aircraft; and 4) Imperial was failing to make rent and other payments due under the lease and failing to replenish letters of credit that were to serve as security under the lease.

Even more disturbingly, JBQ presented the sworn testimony of Imperial’s chief pilot, who testified that Imperial’s maintenance and upkeep of the aircraft was so poor that he was concerned for the safety of his passengers and himself. Based on this factual record, the district court granted JBQ’s motion and entered a preliminary mandatory injunction requiring Imperial to return the aircraft to JBQ in the United States, while simultaneously requiring JBQ to post a bond,47 prohibiting JBQ from releasing or doing anything to the aircraft other than maintaining it during the pendency of the action. Imperial later appealed that order, as well as other orders granting summary judgment in favor of JBQ on various claims in its counterclaim, and the 11th Circuit affirmed those orders in a per curiam decision.48

For nearly 100 years, Florida courts have used, and continue to use, mandatory injunctive relief as a means of forcing another to act in a wide variety of factual contexts, so as to prevent certain injury or damage to another, to property or, in some instances, to the general public. In fact, within the confines of this article alone, there are no fewer than 18 examples of distinct factual circumstances in which Florida litigants and courts have turned to mandatory injunctions as a means of facilitating an immediate resolution of at least a portion of a commercial dispute that might otherwise take years and considerable resources to resolve in the absence of that remedy. In doing so, courts, like the one in Imperial Air, S.A. v. JBQ Aviation Corp., have, among other things, effectively eliminated a tactic often used by parties to an otherwise enforceable contract to gain the upper hand, when they find themselves confronted with a change in economic circumstances or the prospect of a more advantageous business opportunity or both. Their strategy is a simple one: Breach the agreement with impunity — knowing full well that their actions will likely result in the filing of a lawsuit — in the hope that the threat of protracted and costly litigation and, when possible, their admittedly wrongful retention of the object or benefits of the contract will provide them with the leverage they need to extract concessions from the nonbreaching party in the form of a mediated settlement agreement that they could never hope to secure from their adversary outside the litigation context.

Fortunately for the nonbreachers of the world, used properly, motions for preliminary mandatory injunctive relief can serve as an efficient and cost-effective tool to help level the playing field and, in some instances, shift the leverage in their favor, by forcing the breaching party to disgorge the object that it otherwise would be able to hold for ransom. Admittedly, as the Florida Supreme Court repeatedly has made clear, the remedy is not for everyone. But, when the facts and the law permit, it is “a must have” in the arsenal of the commercial litigation practitioner.

1 the title of the article is intended as a play on the idiom “closing the stable door after the horse has bolted,” which implies that one is “trying to stop something bad happening when it has already happened and the situation cannot be changed.” The Free Dictionary, Idioms,

2 See, e.g., Kailin Hu v. Haitian-Hu, 942 So. 2d 992 (Fla. 5th D.C.A. 2006); Grant v. Robert Half Int’l, Inc., 597 So. 2d 801 (Fla. 3d D.C.A. 1992).

3 Anderson v. Town of Groveland, 113 So. 2d 569 (Fla. 2d D.C.A. 1959).

4 Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla. 1972).

5 State ex. rel. Boyles v. Eastmoore, 287 So. 2d 333 (Fla. 1st D.C.A.), cert. dismissed, 293 So. 2d 713 (Fla. 1974).

6 Fairvilla Twin Cinema II v. State ex rel. Eagon, 353 So. 2d 908 (Fla. 4th D.C.A. 1977).

7 DeRitis v. AHZ Corp., 444 So. 2d 93 (Fla. 4th D.C.A. 1984).

8 Shields v. Paving Stone Co., Inc., 796 So. 2d 1267 (Fla. 4th D.C.A. 2001).

9 M&E Distribuotrs, Inc. v. Worley, 840 So. 2d 457 (Fla. 4th D.C.A. 2003).

10 The Florida Bar v. Raiser, 397 So. 2d 1132 (Fla. 1981).

11 See Mayor’s Jewelers, Inc. v. State of Cal. Public Employees’ Retirement System, 685 So. 2d 904 (Fla. 4th D.C.A. 1996), rev. denied, 691 So. 2d 1081 (Fla. 1997) (recognizing that there are basically two kinds of injunctions: “(1) prohibitory injunctions, which act to restrain specific conduct; and (2) mandatory injunctions, which act to command specific conduct”)(italics in original); Zetrouer v. Zetrouer, 255 103 So. 625 (1925)(emphasizing that “a prohibitory, sometimes called preventive, injunction is one that operates to restrain the commission or continuation of an act. . . while a mandatory injunction is one which goes beyond a mere constraint and commands acts to be done or undone”), rev’d on other grounds in Downing v. Bird, 100 So. 2d 57 (1958).

12 Taylor v. Florida East Coast Ry. Co. , 45 So. 574, 575 (Fla. 1907).

13 Id. at 575-76.

14 Id. at 576.

15 Id. at 576-77.

16 Id. at 580.

17 Florida East Coast Ry. Co. v. Taylor, 47 So. 345 (1908).

18 Id. at 345.

19 Id. at 346.

20 Id.

21 Zetrouer, 103 So. at 626.

22 Id. at 626-27.

23 Kellerman, 135 So. at 127-28.

24 Id. at 128.

25 See, e.g., Haddad v. Arnold, 784 F. Supp. 2d 1284, 1295 (M.D. Fla. 2010) (“[w]hen a preliminary injunction is sought to force another party to act, rather than simply to maintain the status quo, it becomes a ‘mandatory or affirmative injunction’ and the burden on the moving party increases”); Grant v. GHG014, LLC, 65 So. 3d 1066 (Fla. 4th D.C.A. 2010) (“[m]andatory injunctions, which compel an affirmative action by the party enjoined, are looked upon with disfavor, and the courts are even more reluctant to issue them than prohibitory ones”); Polk County v. Mitchell, 931 So. 2d 922 (Fla. 2d D.C.A. 2006); City of Indian Rocks Beach v. Tomalo, 834 So. 2d 341 (Fla. 2d D.C.A. 2003). See also Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1221 (11th Cir. 2002) (recognizing that “[a] mandatory injunction, in contrast [to a prohibitory injunction], is said to alter the status quo by commanding some positive act”) (quoting Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995)).

26 See, e.g., St. Johns Inv. Management Co. v. Albaneze, 22 So. 3d 728 (Fla. 1st D.C.A. 2009), rev. denied, 36 So. 3d 665 (Fla. 2010); Sasso v. Milhollan, 735 F. Supp. 1045, 1047 (S.D. Fla. 1990).

27 Sasso, 735 F. Supp. at 1048; see also Jefferson County, 720 F.2d at 1519 (stating that, since the movants could not establish “irreparable harm,” it was unnecessary to address the other prerequisites to [injunctive] relief”).

28 It is axiomatic that “the single most important prerequisite for the issuance of a preliminary injunction [whether it be preventive or mandatory] is a demonstration that, if it is not granted, the applicant is likely to suffer irreparable harm before [the court can render] a decision on the merits.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985). See also Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997, 998-99 (Fla. 4th D.C.A. 1986) (holding that, absent a showing of irreparable injury, entry of an injunction constitutes an abuse of discretion). Moreover, it is equally well-established that “an injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983). Thus, Florida courts repeatedly have refused to grant mandatory injunctive relief when the alleged injury is readily compensable by money damages and/or there is an adequate remedy at law. See, e.g., Chicago Title Ins. Agency of Lee County, Inc. v. Chicago Title Ins. Co., 560 So. 2d 296 (Fla. 2d D.C.A. 1990); Waters v. School Board of Broward County, 401 So. 2d 837 (Fla. 4th D.C.A. 1981).

29 & #x201c;Public interest” has been a consideration in a number, but by no means all, of the reported mandatory injunction cases. See, e.g., Department of Health & Rehabilitative Services v. Artis, 345 So. 2d 1109, 1111 (Fla. 4th D.C.A. 1977) (noting that the “essential criteria for a temporary mandatory injunction are: (1) irreparable harm, (2) a clear legal right, (3) [an] inadequate remedy at law, and ‘ in some circumstances, ’ (4) consideration of the public interest” (emphasis added)); Martin v. Pinellas County, 444 So. 2d 439 (Fla. 2d D.C.A. 1983); Dania Jai Alai Int’l Inc. v. Mura, 375 So. 2d 57 (Fla. 4th D.C.A. 1979). See also Chicago Title Ins. Agency of Lee County, Inc. v. Chicago Title Ins. Co., 560 So. 2d 296, 298 (Fla. 2d D.C.A. 1990) (recognizing that public interest is a factor to consider when entering a mandatory injunction only “ in certain cases ” (emphasis added)). However, the presence or absence of a public interest is ordinarily not a consideration, let alone outcome determinative, in actions that solely affect the rights of private parties to the action. See, e.g., Kellman, 135 So. 127 (affirming issuance of mandatory injunction to enforce contract for purchase and delivery of tomato crop pursuant to private agreement between parties); Fox v. Madsen, 12 So. 3d 1261 (Fla. 4th D.C.A. 2009) (public interest not a consideration in court’s decision to affirm order imposing permanent mandatory injunction to compel removal of portion of driveway in an action between private parties).

30 See, e.g., Dania Jai Alai, 375 So. 2d at 58. See also Delta General Corp. v. Priess, 389 So. 2d 1083 (Fla. 3d D.C.A. 1980) (cases cited therein).

31 Wilson, 713 So. 2d at 735-37.

32 While Sandstrom and a few other courts have loosely and imprecisely described mandatory injunctions as an appropriate mechanism for securing “specific performance of a contract,” the remedy is distinct from and should not be confused with specific performance. The remedy of specific performance originated and was principally applied as an equitable means of ensuring that the intended beneficiary of an agreement for the transfer of a specified parcel of realty or a unique piece of personalty received the benefit of their bargain. See George Vining & Sons, Inc. v. Jones, 498 So. 2d 695, 697 (Fla. 5th D.C.A. 1986) (“[S]pecific performance of a contract is limited to those involving a unique subject matter such as an agreement to convey land.”); DiabloSport, LLC v. Granatelli Motor Sports, Inc., 605-CV-312-ORL-31-DAB, 2005 WL 2465019 (M.D. Fla. 2005) (noting that “where there is no adequate remedy at law, and where the personal property is of a unique character and value, Florida courts will grant specific performance of a contract involving personal property”). See also Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1263 (11th Cir. 2011) (noting that plaintiff could not obtain specific performance to force the sale of a jet where the jet was “not a unique good” and price increase alone was no reason to order specific performance under Florida law); In re Star Broad., Inc., 336 B.R. 825, 833 (Bankr. N.D. Fla. 2006) (finding plaintiff should be allowed to seek specific performance where his interest as a buyer of an FCC license could not otherwise be adequately protected due to the unique character of the license). In contrast, as evidenced by virtually all of the cases referenced in this article, mandatory injunctions are frequently employed as a means of requiring a party to take affirmative steps to undo an act that already has been performed, usually, but not always, in breach of a contractual obligation.

33 Wilson, 713 So. 2d at 736-37.

34 Bailey v. Christo, 453 So. 2d 1134 (Fla. 5th D.C.A. 1984), rev. denied, 461 So. 2d 113 (Fla. 1985).

35 Johnson v. Tlush, 468 So. 2d 1023 (Fla. 4th D.C.A. 1985).

36 Trueba v. Pawley, 407 So. 2d 945 (Fla. 3d D.C.A.), dismissed by, 415 So. 2d 1360 (Fla. 1982).

37 Martin v. Pinellas County, 444 So. 2d 439 (Fla. 2d D.C.A. 1983), rev. denied, 451 So. 2d 849 (Fla. 1984).

38 Gulf Power Co. v. Glass, 355 So. 2d 147 (Fla. 1st D.C.A. 1978).

39 Monell v. Golfview Road Association, 359 So. 2d 2 (Fla. 4th D.C.A. 1978).

40 Fox, 12 So. 3d at 1261 (noting “a mandatory injunction is proper means of enforcing a restrictive covenant affecting real estate”).

41 Dept. of State, Div. of Elections v. Martin, 885 So. 2d 453 (Fla. 1st D.C.A. 2004) , affirmed by, 916 So. 2d 763 (Fla. 2005).

42 Florida Power Corp. v. City of Winter Park, 827 So. 2d 322, 325 (Fla. 5th D.C.A. 2002), approved, 887 So. 2d 1237 (Fla. 2004).

43 K.G. ex rel. Garrido v. Dudek, 11-20684-CIV, 2011 WL 6938381 (S.D. Fla. 2011) (recognizing that plaintiff was at “immense risk” of becoming permanently disabled if he did not receive the necessary ABA therapy in the immediate future).

44 AT&T Wireless Services of Florida, Inc. v. WCI Communities, Inc., 932 So. 2d 251 (Fla. 4th D.C.A. 2005).

45 Legakis v. Lovampos, 40 So. 3d 901 (Fla. 2d D.C.A. 2010) (wherein the court implicitly recognized the appropriateness of the mandatory injunction remedy subject to the trial court taking steps to ensure that the funds awarded for the repairs were applied for that purpose).

46 Forrest v. Citi Residential Lending, Inc., 73 So. 3d 269 (Fla. 2d D.C.A. 2011).

47 Courts often require parties seeking a temporary injunction to post an adequate bond “in an amount the court deems proper” payable to the adverse party in the event that they are wrongfully enjoined. While the amount of the bond can often be determined based on the pleadings and good faith representations of counsel, an evidentiary hearing will be required where the appropriate amount of the bond is in dispute. See TJ Management Group, L.L.C. v. Zidon, 990 So. 2d 623 (Fla. 3d D.C.A. 2008); Broward County v. Meiklejohn, 936 So. 2d 742 (Fla. 4th D.C.A. 2006).

48 Imperial Air, S.A. v. JBQ Aviation, 181 F.3d 109 (11th Cir. 1999).

Donald A. Blackwell i sa partner at Seipp & Flick, LLP, in Miami. He is a magna cum laude graduate of Spring Hill College (1980) and received his law degree from the University of Virginia School of Law (1983). He is a former adjunct professor of law at Southern Methodist University and St. Thomas University. His areas of practice include all aspects of commercial and personal injury litigation, with an emphasis on automotive product liability cases.

Stephanie Martinez is an associate with Seipp & Flick, LLP, in Miami. She is a 2001 graduate of the University of Miami, where she also earned her J.D. degree in 2005. Martinez is admitted to practice before the state and federal courts of Florida, where she has handled numerous civil appeals. Her areas of practice include appellate law (with an emphasis on insurance disputes), as well as products and premises liability defense.