SHERRY SPAULDING, ETC., ET AL., APPELLANT,
v.
ESTATE OF SETH N. FREY, ETC., ET AL., APPELLEE
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The court held that arguments raised on a motion to dissolve a temporary injunction are limited to issues not previously litigated or appealable from the original injunction order.
[1] A party seeking to dissolve a temporary injunction must present evidence of a change in conditions justifying dissolution, rather than merely rearguing the merits of the…
[2] Arguments challenging the initial grounds for a temporary injunction, or alleging procedural defects in its entry, must be raised in a timely appeal from the order granti…
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Join FLexlaw to unlock all legal intelligenceA nurse received a large check from a patient shortly before his death. The patient's estate representative obtained a temporary injunction to prevent…
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THOMPSON, Judge.
Sherry Spaulding appeals a nonfinal order modifying a temporary injunction.1 The original injunction was entered upon the petition for temporary injunction filed by Virginia Hutchinson, personal representative of the estate of Seth N. Frey. In her petition, Hutchinson alleged that the injunction was necessary to prevent the dissipation of estate assets obtained by Spaulding prior to Frey’s death.
The trial court entered the temporary injunction after holding a contested hearing which was attended by Spaulding.2 Instead of appealing, Spaulding moved to dissolve the temporary injunction.
The trial court subsequently entered its order modifying the injunction, and this appeal followed. Because Spaulding’s only arguments presented at the hearing on the motion to dissolve went to the issue of whether the temporary injunction was improvidently entered in the first place, we are constrained to affirm the trial court’s order. Sherry Spaulding was the visiting nurse’s aid for Seth N. Frey for one week. Several months after Spaulding provided nursing services to Frey, and one day before his death, Frey signed a check made payable to Spaulding for $63,597.26. The check was signed by Frey, but the remainder of the check was completed by someone else. Spaulding cashed the check, which closed Frey’s bank account.
Hutchinson petitioned the court and obtained a temporary injunction preventing the disbursement of assets from several bank accounts owned individually or jointly by the following parties: Spaulding; Christine Marie Spaulding; George and Judith Tulner, Spaulding’s parents; and Jean Hurley, Spaulding’s grandmother. The parties’ financial institutions were also enjoined from disbursing assets. The trial court, however, made no findings of fact, did not specify the reasons for the entry of the temporary injunction, and did not set a bond.
Spaulding petitioned the trial court to dissolve the temporary injunction, arguing that the injunction was improperly entered because the court failed to comply with Florida Rule of Civil Procedure 1.610. After holding a new hearing, the trial court modified the injunction to identify one account held by Judith Tulner. The modified injunction prevented Spaulding, Christine Marie Spaulding, Judith Tulner, and their agents from removing funds from the account. The temporary injunction was dissolved as to all other parties, all other accounts, and all other financial institutions, except Barnett Bank of Volusia County, the bank holding the one account. The order modifying the injunction also waived the posting of a bond by Hutchinson. In lieu of a bond, the court “enjoined [Hutchinson] from disbursing $15,000 in assets of the Estate of Seth N. Frey.” Spauld-ing has not challenged the trial court’s decision to freeze funds in the estate in lieu of a bond.
At the hearing on the motion to dissolve the temporary injunction, Spaulding never presented evidence of a change in conditions which would justify dissolving the injunction, even though she had the burden of proof. Coastal Unilube, Inc. v. Smith, 598 So. 2d 200, 201 (Fla. 4th DCA1992).
Instead, Spaulding argued that Hutchinson never made a showing of the elements required for injunctive relief, and that the temporary injunction did not set forth the grounds for such relief, as required by Florida Rule of Civil Procedure 1.610(c).
It is now too late to raise arguments that should have been raised at the contested hearing on Hutchinson’s motion for temporary injunction or in a direct appeal from the order granting the motion for temporary injunction. See Miller v. Jacobs & Goodman, P.A., 639 So. 2d 1088, 1089 (Fla. 5th DCA 1994).
Under similar circumstances, this court has held that a motion to dissolve a temporary injunction, and an appeal from a trial court’s order denying a motion to dissolve, constitute “an improper attempt ... to evade a court order and gain retrial of the issues without a timely motion for new trial or appeal.” Shadow Lakes Woods, Inc. v. Schneider, 414 So. 2d 3, 4 (Fla. 5th DCA 1982).
Accordingly, we affirm the trial court’s order modifying the temporary injunction.
AFFIRMED.
PETERSON, C.J., concurs.
GRIFFIN, J., dissents, without opinion.
. This court has jurisdiction. Fla.R.App.P. 9.130(a)(3)(B).
. Spaulding attended the hearing, but she was not represented by an attorney at the hearing. Spaulding's attorney had counseled with her before the hearing, but he did not attend because she had not yet retained him. The attorney did appear at the hearing on the motion to dissolve the temporary injunction.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615 (Fla. 2d DCA 1997)…ry injunction. Therefore, when Hunter moved to dissolve the temporary injunction it was incumbent upon him to prove some change of circumstance that would have justified the dissolution or modification of the injunction. Spaulding v. Estate of Frey, 666 So. 2d 935 (Fla. 5th DCA 1995); McCahill v. Braishfield Associates, Inc., 661 So. 2d 399 (Fla. 5th DCA 1995); Miller v. Jacobs and Goodman, P.A., 639 So. 2d 1088 (Fla. 5th DCA 1994). Because the trial judge was not presented with any such proof, we cannot say…
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Pecora v. Pecora, 697 So. 2d 1267 (Fla. 5th DCA 1997)…he initial temporary injunction hearing cannot be the basis of a motion to dissolve. A motion to dissolve must be based on evidence of a change in conditions occurring after entry of the temporary injunction with notice. Spaulding v. Estate of Frey, 666 So. 2d 935, 936 (Fla. 5th DCA 1995), McCahill v. Braishfield Assocs., Inc., 661 So. 2d 399 (Fla. 5th DCA 1995); Miller v. Jacobs and Goodman, P.A., 639 So. 2d 1088 (Fla. 5th DCA 1994). This being the law of this district, a temporary injunction hearing after n…
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City OF Ormond Beach v. City OF Daytona Beach, 794 So. 2d 660 (Fla. 5th DCA 2001)…or without notice (ex parte) to the other party.2 The basis for the injunction may not be challenged where notice and opportunity to be heard have been given, for to do so would constitute an attempt to retry the issues. Spaulding v. Estate of Frey, 666 So. 2d 935 (Fla. 5th DCA 1995). Instead, an injunction with notice should only be dissolved where the facts have changed to the point that equity dictates the injunction is no longer needed. Pecora v. Pecora, 697 So. 2d 1267 (Fla. 5th DCA 1997); Brock v. Brock…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coastal Unilube, Inc. v. Smith, 598 So. 2d 200 (Fla. 4th DCA 1992)
- Shadow Lakes Woods, Inc. v. Schneider, 414 So. 2d 3 (Fla. 5th DCA 1982)
- Brent C. Miller, Charles M. Rand, & Miller & Rand, P.A. v. Jacobs & Goodman, P.A., 639 So. 2d 1088 (Fla. 5th DCA 1994)