WISCONSIN REAL ESTATE INVESTMENT TRUST, ET AL., APPELLANT,
v.
JOSEPH J. ROUSE, APPELLEE
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The trial court erred in issuing a preliminary injunction because the party seeking it failed to demonstrate irreparable injury and the circuit court exceeded its jurisdiction by enjoining an eviction action.
A tenant claimed an oral lease extension, but the landlord initiated eviction proceedings. The tenant then sued, and the trial court granted a prelimi…
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DAUKSCH, Judge.
The motion for rehearing is granted. The decision filed in this case on October 9, 1984 is withdrawn, and the following opinion is substituted.
This is an appeal, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), from a non-final order granting a preliminary injunction. Jurisdiction is based on Article V, section 4(b)(1), Florida Constitution.
Appellant, Wisconsin Real Estate Investment Trust (WREIT), the fee simple owner of certain real property, entered into a lease on August 29, 1980 with appellee Rouse providing for a one-year term with two options to extend for one year. Rouse claims that there was an oral modification of this agreement in October, 1981 providing for a five-year extension of the lease commencing May 1, 1982. Nevertheless, Rouse exercised his second one-year option in July, 1982. Instead of vacating the property when the second option year ended, Rouse brought the instant action alleging the validity of either the five-year oral modification or of an oral agreement allegedly reached in July, 1983 extending Rouse’s lease an additional year.1 Two days later, WREIT instituted eviction proceedings against Rouse in county court.
The preliminary injunction prohibits WREIT from interfering with Rouse’s possession of the property and from interfering with Rouse’s utilization on the property of an alcoholic beverages license owned by a non-party to this action. The trial court erred in issuing the preliminary injunction because no evidence was adduced at the hearing below that Rouse would suffer irreparable injury if the injunction did not issue. Because Rouse filed a notice of lis pendens, if his claim of a valid oral lease is correct, there would be no interference with his possession even had WREIT sold the property as it desired. Certainly Rouse will suffer no irreparable injury in defending an eviction proceeding in county court. The facts Rouse alleges in support of the preliminary injunction are available as defenses in the eviction action, and since county courts have exclusive jurisdiction in landlord and tenant actions, the circuit court exceeded its jurisdiction in enjoining WREIT’s eviction action. See Palm Corporation v. 183rd Street Theatre Corporation, 344 So. 2d 252 (Fla. 3d DCA 1977), cert. den., 355 So. 2d 516 (Fla.1978) (trial court erred in enjoining prosecution of eviction action in county court where facts supporting the injunction could be pleaded as defenses in the eviction proceeding). Additionally, the court failed to require a bond in accordance with Florida Rule of Civil Procedure 1.610(c).
For these reasons, we reverse the amended order for preliminary injunction and remand the cause for further proceedings in the lower tribunal.
EEVERSED and REMANDED.
COBB, C.J., and COWART, J., concur. . The circuit court based the preliminary injunction exclusively on the alleged five-year oral modification.
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Hutchinson v. Kimzay OF Fla., Inc., 637 So. 2d 942 (Fla. 5th DCA 1994)…l suffer no irreparable injury in defending an eviction proceeding in county court. The facts [the lessee] alleges in support of the preliminary injunction are available as defenses in the eviction action.” Wisconsin Real Estate Inv. Trust v. Rouse, 466 So. 2d 289, 290-91 (Fla. 5th DCA 1985). There was no basis for the injunction to issue since Kimzay had adequate legal remedies and would not suffer irreparable harm. Further, by failing to pay the increased bond of $97,500 ordered by the court on 4 December 1…1 / 2
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Torok v. Blue Skies Mobile Home Owners Ass'n, Inc., 467 So. 2d 474 (Fla. 5th DCA 1985)…67 So. 2d 476 (Fla. 2d DCA 1985). At that hearing, the applicant for injunctive relief must go forward with proofs sufficient to establish a prima facie showing of its right to such relief. Del Bello; Wisconsin Real Estate Investment Trust v. Rouse, 466 So. 2d 289 (Fla. 5th DCA 1984); cf. Ladner v. Plaza Del Prado Condominium Association, Inc., 423 So. 2d 927 (Fla. 3rd DCA 1982), rev. denied, 434 So. 2d 887 (Fla.1983); Russell v. Florida Ranch Lands, Inc., 414 So. 2d 1178 (Fla. 5th DCA 1982). Failure to do so…
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Supal v. Pelot, 469 So. 2d 949 (Fla. 5th DCA 1985)…prima facie case. Torok v. Blue Skies Mobile Home Owners Association, Inc., 467 So. 2d 474 (Fla. 5th DCA 1985); Lingelback’s Bavarian Restaurants, Inc. v. Del Bello, 467 So. 2d 476 (Fla. 2d DCA 1985); Wisconsin Real Estate Investment Trust v. Rouse, 466 So. 2d 289 (Fla. 5th DCA 1985). If a party cannot establish that he has a clear legal right to injunctive relief, it is error to grant it. Russell v. Florida Ranch Lands, Inc., 414 So. 2d 1178 (Fla. 5th DCA 1982). This is even more egregious in this case, sinc…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Corp. v. 183RD St. Theatre Corp., 344 So. 2d 252 (Fla. 3d DCA 1977)