GEORGE MERRELL AND GEORGE WILSON, APPELLANTS,
v.
BONITA SPRINGS GOLF COURSE, LTD., AN ILLINOIS LIMITED PARTNERSHIP, AND MARVELLA ASSOCIATES, INC., A DISSOLVED CORPORATION, APPELLEES
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Two directors of a dissolved corporation seek review of an injunction preventing them from collecting a judgment in a related case. The appellate court reversed, holding that the trial court lacked authority to issue the injunction without proper pleadings, notice, or an underlying action against the appellants.
The trial court erred in issuing the injunction. Although circuit courts have constitutional power to issue writs necessary and proper to exercise their jurisdiction, the injunction was neither necessary nor proper because there was no motion or complaint seeking injunctive relief and no action pending against appellants at the time the injunction was issued.
[1] A trial court cannot issue an injunction against a party when no action is pending against that party.
[2] A trial court may not enjoin a party from collecting a judgment when there is no existing claim or pending suit against that party.
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“Although article V, section 5(b), of the Florida Constitution gives the circuit courts the power to issue "all writs necessary and proper to the complete exercise of their jurisdiction," the writ of injunction issued in this case was neither necessary nor proper.”
Establishes the standard for issuing injunctions and concludes the trial court exceeded its authority here.
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Join FLexlaw to unlock all legal intelligenceBonita Springs Golf Course obtained a final judgment against Marvella Associates, Inc. (a dissolved corporation) for $670,337.11 in February 1984. The…
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PER CURIAM.
Appellants George Merrell and George Wilson seek review of a nonfinal order enjoining them from collecting a judgment in a related case. We reverse.
By final judgment dated February 10, 1984, Bonita Springs Golf Course, Ltd. (Bonita) recovered judgment against Marvella Associates, Inc. (Marvella) in the sum of $670,337.11. Marvella was a Florida corporation that had been dissolved on March 24, 1980. Bonita had brought suit against Marvella and four of its last board of directors, individually, to recover a debt. Two of the individuals are Merrell and Wilson. While the trial court found appellants had actual notice of the sale which gave rise to the underlying debt and that under section 607.144, Florida Statutes (1983), the directors improperly voted to distribute assets without providing for payment of the debts, it also found that Bonita would have to garnish the directors since the statute did not provide for a direct action against the directors. Although the trial court did not allow Bonita to recover directly against the individual directors, it reserved jurisdiction to allow Bonita to file amended or supplemental pleadings to collect the indebtedness due. No judgment was entered against the individual directors, including appellants. Marvella appealed the judgment, and Bonita cross-appealed the denial of judgment against the individual directors. This court affirmed the judgment without opinion. See Marvella Associates, Inc. v. Bonita Springs Golf Course, Ltd., 462 So. 2d 1113 (Fla.2d DCA 1985).
A receiver appointed for Marvella filed a motion for issuance of writs of garnishment. The motion sought to garnish certain funds that Merrell and Wilson were entitled to receive from Michael M. Miceli, Vincent L. Palmieri, and possibly Lee Coun ty Bank, pursuant to a final judgment entered in the related case, Bonita Springs Golf Course, Ltd. v. Lee County Bank, Case No. 85-528.
Apparently, the trial court issued the writs, because subsequently appellants filed a motion to dissolve writs of garnishment. The motion alleged that the writs were contrary to section 77.01, et seq., Florida Statutes (1985), in that there was no judgment against appellants. The motion further alleged that the writs were not properly entered because the receiver did not properly file verified pleadings, provide notice to appellants or post bond.
At the hearing on the motion, the trial judge agreed with appellants that it was improper to issue the writs of garnishment. The judge, however, stated that being familiar with all of the cases he felt obligated to preserve the status quo so that appellants could not recover any of the money judgment in the related cases. He, therefore, quashed the writs, but issued an in-junctive order preventing appellants from collecting any monies due to them pursuant to the final judgment in Case No. 85-528. This timely appeal followed.
Appellants claim that the trial court erred in enjoining them without an application for an injunction, notice of a hearing for that purpose, or an existing claim against appellants that required entry of an injunction.
Although article V, section 5(b), of the Florida Constitution gives the circuit courts the power to issue “all writs necessary and proper to the complete exercise of their jurisdiction,” the writ of injunction issued in this case was neither necessary nor proper. In Lingelbach’s Bavarian Restaurant v. Del Bello, 467 So. 2d 476 (Fla.2d DCA 1985), this court determined that a motion for a preliminary injunction was a sufficient predicate for granting an injunction without a complaint seeking that relief. Here, there was neither complaint nor motion seeking injunctive relief.
Further, there was no action pending against appellants at the time the injunction was issued. The 1984 final judgment granted judgment in favor of Bonita and against Marvella, and the trial court specifically found that the statute under which Bonita had proceeded, section 607.144, did not provide for a cause of action against appellants. Because there was no suit or judgment pending against appellants at the time the injunction was issued, the trial court had no vehicle through which to enter the injunction. Accordingly, we reverse the order issuing the injunction and remand the case for further proceedings consistent with this opinion.
Reversed and Remanded.
SCHEB, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.
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Waterman Broad. Corp. v. Saro, Inc., 555 So. 2d 1273 (Fla. 2d DCA 1989)…it must first file a complaint or allege a cause of action for defamation in its pleading for a temporary injunction before injunctive relief can be granted. See Hall v. Hanford, 64 So. 2d 303 (Fla.1953); Merrell v. Bonita Springs Golf Course, Ltd., 512 So. 2d 974 (Fla. 2d DCA 1987) (where no action is pending against appellants, no injunction may issue). On the other hand, Saro is required under section 770.01, Florida Statutes (1987), to furnish WBBH with written notice five days prior to filing any claim a…
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Ogelean Riddick & Suncoast Beauty Sch. of Fla., Inc. v. Suncoast Beauty Coll., Inc., 570 So. 2d 1064 (Fla. 2d DCA 1990)…hem. Without personal jurisdiction over these individuals, the court has no power to enjoin them from any act by naming them in the instant injunction. Alger v. Peters, 88 So. 2d 903 (Fla.1956); Mer- [*1066] rell v. Bonita Springs Golf Course, Ltd., 512 So. 2d 974 (Fla. 2d DCA 1987); Conner v. Conner, 313 So. 2d 456 (Fla. 3d DCA 1975); G & N Construction Co. v. Kirpatovsky, 181 So. 2d 664 (Fla. 3d DCA 1966). This is not to say, however, that should these individuals aid Ogelean Riddick and Suncoast Beauty Sch…
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Cadillac Plastic Grp., Inc. v. Barnett Bank OF Martin Cnty., N.A., 590 So. 2d 1063 (Fla. 4th DCA 1991)…on in a pleading for a temporary injunction before injunctive relief can be granted. Waterman Broadcasting v. Saro, Inc., 555 So. 2d 1273 (Fla. 2d DCA 1989). See Hall v. Hanford, 64 So. 2d 303 (Fla.1953); Merrell v. Bonita Springs Golf Course, Ltd., 512 So. 2d 974 (Fla. 2d DCA 1987). The verified motion is not a sufficient vehicle to fulfill this requirement. Accordingly, we vacate the temporary injunction and remand for such further proceedings as may be appropriate. DOWNEY, HERSEY and GARRETT, JJ., concur…
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- Lingelbach's Bavarian Rests., Inc. v. del Bello, 467 So. 2d 476 (Fla. 2d DCA 1985)