JOSEPHINE SILVERMAN, APPELLANT,
v.
WALLY BLAUSTEIN, APPELLEE
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Josephine Silverman appeals a temporary restraining order preventing her from secreting or dissipating estate assets. The court affirmed the restraining order but reversed the chancellor's failure to require the plaintiff to post a bond as mandated by Florida Civil Procedure Rules.
The court affirmed the temporary restraining order on the merits, finding no abuse of discretion, but reversed the order as to the procedural defect of failing to require a bond or determine the plaintiff's inability to post bond as required by Florida Rule of Civil Procedure 1.610(b).
[1] A temporary restraining order may be issued to prevent the dissipation of estate assets when there are allegations of wrongful conversion.
[2] A court errs in issuing a temporary restraining order without requiring the posting of a bond, unless the party seeking the order is determined to be unable to give bond.
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“After a review of the record we find no abuse of discretion on the part of the chancellor in the entry of the temporary restraining order.”
The court upheld the merits of the restraining order, finding the chancellor acted within proper discretion.
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Join FLexlaw to unlock all legal intelligenceWally Blaustein, as personal representative of her deceased husband Max Blaustein's estate, sued Josephine Silverman for wrongful conversion of estate…
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[*87] PER CURIAM.
Defendant-appellant, Josephine Silver-man, appeals the entry of a temporary restraining order enjoining her from secreting or dissipating any estate assets in her possession or control.
Plaintiff-appellee, Wally Blaustein, as personal representative of the estate of her husband, Max Blaustein, deceased, filed the instant suit for damages and equitable relief against Josephine Silverman. In her complaint Blaustein alleged that her late husband had given Silverman a general power of attorney to allow her to withdraw sufficient funds for his care during his lifetime. Blaustein further alleged that Silver-man wrongfully converted and secreted her husband’s funds in her own personal bank account. In addition to damages and other equitable relief, Blaustein also sought the issuance of a temporary restraining order enjoining Silverman from dissipating the funds. After hearing the chancellor issued a temporary restraining order enjoining Sil-verman from secreting or dissipating any assets in her possession or under her control which belong to the estate of Max Blau-stein, deceased.
After a review of the record we find no abuse of discretion on the part of the chancellor in the entry of the temporary restraining order. See United States Fire Insurance Company v. Brown, 185 So. 2d 11 (Fla. 3d DCA 1966). Nevertheless, we agree with Silverman that the chancellor erred in issuing a temporary restraining order without requiring that Blaustein post a bond or in the alternative determining she is unable to give bond as required by Fla.R. Civ.P. 1.610(b). This error must be corrected. We affirm the restraining order but remand the cause to the chancellor with directions to determine whether Blaustein is financially able to post bond and, if so, to set the amount of such bond. See e. g. Lewis v. Lewis, 66 So. 2d 260 (Fla.1953); McGovern v. Amira, 328 So. 2d 862 (Fla. 4th DCA 1976).
It is so ordered.
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Goldberger v. Regency Highland Condo. Ass'n, Inc., 383 So. 2d 1173 (Fla. 4th DCA 1980)…unable to give a bond. Absent such request, proof and finding, it was reversible error to issue an injunction without bond. Seminole Park and Fairgrounds, Inc. v. Tropic Bank of Seminole, 380 So. 2d 1335 (Fla. 5th DCA 1980); Silverman v. Blaustein, 369 So. 2d 86 (Fla. 3d DCA 1979); Muss v. Rosenberg, 353 So. 2d 203 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So. 2d 827 (Fla. 3d DCA 1977); Quadomain Condominium Ass’n, Inc. v. Pomerantz, 341 So. 2d 1041 (Fla. 4th DCA 1977). In view of our con…
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Authorities Cited
- Lewis v. Lewis, 66 So. 2d 260 (Fla. 1953)
- McGOVERN v. Amira, 328 So. 2d 862 (Fla. 4th DCA 1976)
- United States Fire Ins. Co. v. Brown, 185 So. 2d 11 (Fla. 3d DCA 1966)