HUGO DE LEON AND MAYRA DE LEON, HIS WIFE, AND OCEAN BANK, APPELLANTS,
v.
AEROCHAGO, S.A., A DOMINICAN REPUBLIC CORPORATION, LILLIAN RODRIGUEZ DE COHEN, INDIVIDUALLY, AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF PEDRO S. RODRIGUEZ ECHEVARRIA, APPELLEES

Fla. 3d DCA | 1992-01-28
No. 91-1261
Before SCHWARTZ, C.J., and FERGUSON and GODERICH, JJ.
593 So. 2d 558 Florida District Court of Appeal, Third District (1992) Caution
Cited by 18 cases

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Holding

The court held that the trial court erred in denying the motion to dissolve the temporary injunction because the appellees failed to demonstrate a clear legal right and the likelihood of irreparable harm, as they had an adequate remedy at law.


Headnotes

[1] A temporary injunction requires the moving party to demonstrate a clear legal right or interest in the subject matter of the suit.

[2] Injunctive relief may not be used to enforce money damages or to prevent a party from disposing of assets until an action at law for an alleged debt can be concluded.

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Facts & Procedural History

Appellees filed suit seeking injunctive relief, and the trial court granted a temporary injunction freezing a certificate of deposit. The appellants, …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellants, Hugo de Leon, Mayra de Leon and Ocean Bank, bring this interlocutory appeal from an order denying their motion to dissolve a temporary injunction, which prohibited Hugo de Leon from withdrawing any of the funds deposited in a certificate of deposit at Ocean Bank and ordered Ocean Bank to freeze the certificate of deposit. We reverse and remand.

Aerochago, S.A., is an international air carrier incorporated in the Dominican Republic and doing business in the United States. In order to operate in the United States, Aerochago obtained a customs bond in favor of the United States. Aerochago is owned in principal part by Lillian Rodriguez de Cohen, individually, and as the personal representative of the estate of Pedro S. Rodriguez Echevarria.

On July 10, 1989, Pedro S. Rodriguez Echevarria [hereinafter referred to as Rodriguez] issued a check from his personal account payable to Hugo de Leon in the sum of $50,000.00. He noted that the check was for a customs policy. Hugo de Leon deposited the check in Aerochago’s account held with Ocean Bank. On July 13, 1989, Hugo de Leon opened a $50,-000.00 certificate of deposit in the names of Hugo de Leon or Rodriguez. This certificate of deposit was pledged as collateral for a standby letter of credit issued by Ocean Bank. In turn, this letter of credit stands as security for the customs bond.

Rodriguez died on August 16, 1990. On November 20, 1990, Hugo de Leon converted the original certificate of deposit into his sole and exclusive name. Hugo de Leon pledged the new certificate of deposit as collateral for the letter of credit. However, he instructed the bank not to renew the letter of credit when it expired on July 15, 1991.

Aerochago and Lillian Rodriguez de Cohen, individually, and as the personal representative of the estate of Pedro S. Rodriguez Echevarria [collectively referred to as the appellees] filed a complaint against the de Leons and against Ocean Bank for in-junctive relief, declaratory relief, and for damages. The trial court granted a temporary injunction on May 8, 1991. The appel-lees posted a $25,000.00 bond pursuant to rule 1.610, Florida Rules of Civil Procedure. The trial court denied the de Leons’ ore tenus motion to set aside, vacate or otherwise dissolve the injunction and, thereby, continued the injunction. The de Leons and Ocean Bank appeal.

The appellants contend that the trial court erred in granting the temporary injunction and in refusing to dissolve the injunction where the appellees did not demonstrate the essential elements necessary for a temporary injunction. We agree.

Injunctions are an extraordinary remedy which must be granted sparingly, Hiles v. Auto Bahn Fed’n, Inc., 498 So. 2d 997 (Fla. 4th DCA 1986); Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So. 2d 734 (Fla. 4th DCA 1980), and only after the moving party demonstrates each of the following essential elements: (1) a clear legal right or interest in the subject matter of the suit; (2) the likelihood of immediate and irreparable harm because of the unavailability of an adequate remedy at law; and (3) a substantial likelihood of success on the merits. Lopez-Ortiz v. Centrust Sav. Bank, 546 So. 2d 1126, 1127 (Fla. 3d DCA 1989); Oxford Int’l Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So. 2d 54, 56 (Fla. 3d DCA 1979), cert. dismissed, 383 So. 2d 1199 (Fla.1980).

In the instant case, the appellees failed to show the existence of several of the essential elements necessary for the issuance of injunctive relief.

First, appellees have asserted a contingent, unproven and disputed claim for money damages. This is not a sufficient right or interest. See Oxford, 374 So. 2d at 56. “.Injunctive relief may not be used to enforce money damages, or to prevent any party from disposing of assets until an action at law for an alleged debt can be concluded.” Hiles, 498 So. 2d at 998 (citing Action Elec. & Repair, Inc. v. Batelli, 416 So. 2d 888 (Fla. 4th DCA 1982)).

Second, there is no likelihood of immediate and irreparable harm because the appellees have an adequate remedy at law. The appellees have repeatedly insisted that there is nothing in evidence that the money can be replaced, unless the funds were impounded. Since only money is at stake, it can be easily replaced. The appellants have an adequate remedy at law. See Lopez-Ortiz, 546 So. 2d at 1126; Oxford, 374 So. 2d at 56.

Based upon the appellees’ failure to satisfy these two essential requirements for injunctive relief, it is unnecessary for us to comment on the remaining requirement. For these reasons, the trial court erred in not granting the appellants’ motion to dis solve the temporary injunction; therefore, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Finally, the appellants claim they are entitled to recover the costs and attorney’s fees they have incurred in trying to dissolve the improper injunction. However, the law is clear that appellants are “required to institute a separate action at law on the injunction bond before damages may be assessed for the wrongful issuance of the temporary injunction.” Calder Race Course, Inc. v. Gaitan, 430 So. 2d 975, 976 (Fla. 3d DCA 1983) (citations omitted). Since the issue of attorney’s fees has not been presented to the trial court, it is not properly preserved for appellate review.

Reversed and remanded for further proceedings consistent with this opinion.


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  • Heslop v. Earnest Moore, Jr., 716 So. 2d 276 (Fla. 3d DCA 1998)
    …d DCA 1975), we conclude that they have no applicability to the factual scenario presented in this case. We note initially that a temporary injunction is an extraordinary remedy which should be granted only sparingly. See De Leon v. Aerochago, S.A., 593 So. 2d 558, 559 (Fla. 3d DCA 1992); Hiles v. Auto Bahn Fed’n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986); Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So. 2d 734, 735 (Fla. 4th DCA 1980). Thus, the moving party must demonstrate: (1) a substantial l…
  • Sylvio Tabet v. Tabet, 644 So. 2d 557 (Fla. 3d DCA 1994)
    …s where a party seeks to enjoin the transfer of assets prior to obtaining a judgment. See, e.g., Lawhon v. Mason, 611 So. 2d 1367 (Fla. 2d DCA 1993); Diamond v. Interstate Trading Corp., 606 So. 2d 631 (Fla. 3d DCA 1992); De Leon v. Aerochago, S.A., 593 So. 2d 558 (Fla. 3d DCA 1992). Here, the husband had a final money judgment, and had alleged that the wife had already made transfers of assets in an attempt to avoid execution. In view of our remand for an evidentiary hearing, we therefore order that the temp…
  • …ablished by mere monetary loss.1 Barclays Am. Mtg. Corp. v. Holmes, 595 So. 2d 104, 105 (Fla. 5th DCA 1992) (“However, irreparable harm does not exist where the potential loss is compensable by money damages.”); De Leon v. Aerocha- [*1307] go, S.A., 593 So. 2d 558, 559 (Fla. 3d DCA 1992) (“Injunctive relief may not be used to enforce money damages....”); Hiles v. Auto Bohn Fed’n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986) (no irreparable harm because the loss can be compensated by money damages). I interp…

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