ORKIN EXTERMINATION COMPANY, INC., APPELLANT,
v.
WILLIAM TFANK, APPELLEE
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Orkin Extermination Company appealed the trial court's denial of its motion for a preliminary injunction against a former employee, William Tfank, who allegedly violated a noncompetition agreement. The court affirmed the denial, holding that a verified complaint alone is insufficient to support a preliminary injunction at a noticed and contested hearing.
The trial court did not abuse its discretion in denying the preliminary injunction. A verified complaint alone is insufficient proof at a noticed and contested evidentiary hearing, even though Florida Rule of Civil Procedure 1.610 permits verified complaints to serve as proof in ex parte temporary injunction proceedings.
[1] A verified complaint alone is insufficient to establish the necessary elements for a temporary injunction at a noticed and contested evidentiary hearing.
[2] A trial court's ruling on a motion for a temporary injunction is presumed correct and is reversible only for an abuse of discretion.
Previewing 2 of 5 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“A temporary injunction is an extraordinary remedy which "should be granted sparingly and only after the moving party has alleged and proven facts entitling it to relief."”
Establishes the stringent standard for obtaining preliminary injunctions, requiring both allegations and proof of entitlement to relief.
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Join FLexlaw to unlock all legal intelligenceOrkin employee William Tfank entered into a noncompetition agreement restricting solicitation and competition within Palm Beach and Broward Counties f…
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PER CURIAM.
Orkin Exterminating Co. appeals from a nonfinal order denying its motion for preliminary injunction. We affirm.
Appellant, Orkin Exterminating Company, Inc. (Orkin), sought to enjoin former employee William Tfank from soliciting Orkin’s customers and engaging in pest control within Palm Beach and Broward Counties until the two-year period specified in his noncompetition agreement lapsed. The trial court denied the motion, finding that Orkin failed to present evidence to support its request for a preliminary injunction.
Orkin filed a complaint, verified by its assistant branch manager, alleging that: Tfank entered into a noncompetition agreement; Tfank’s employment with Or-kin terminated on November 23, 1998; Tfank thereafter began working with Southeast; Orkin experienced an unprecedented rate of cancellation after Tfank’s termination on the route he formerly serviced; Orkin contacted many of the customers who canceled, who said that they canceled Orkin’s services to retain the services of Tfank and Southeast, who had solicited them; after leaving Orkin, Tfank called upon Orkin’s customers to solicit pest control business within Palm Beach and/or Broward counties and engaged in pest control within Palm Beach and/or Broward counties for himself or Southeast within the two-year period following termination of his employment with Orkin; and Tfank disclosed to Southeast information concerning Orkin’s business and the names of its customers, thereby breaching his employment agreement with Orkin.
In response to the complaint, Tfank filed an answer and affirmative defenses. Or-kin did not file a reply to the affirmative defenses. At the hearing on its motion for a preliminary injunction, Orkin did not present any evidence or testimony,, but relied solely on its verified complaint. Tfank objected to use of the complaint as the sole means of providing proof, arguing that the complaint was not sufficiently verified inasmuch as it was replete with hearsay and did not show that the affiant had direct knowledge of the facts contained therein. Further, Tfank argued, even if sufficiently verified, the complaint did not set forth allegations and facts sufficient to establish all the necessary elements for a preliminary injunction and to rebut Orkin’s affirmative defenses.
A trial court’s ruling on a motion for a temporary injunction is clothed with a presumption of correctness, subject to reversal only for an abuse of discretion. See Gold Coast Chem. Corp. v. Goldberg, 668 So. 2d 326 (Fla. 4th DCA 1996); 3299 N. Fed. Highway, Inc. v. Board of County Comm’rs of Broward County, 646 So. 2d 215, 220 (Fla. 4th DCA 1994), rev. dismissed, 699 So. 2d 690 (Fla.1997). A temporary injunction is an extraordinary remedy which “should be granted sparingly and only after the moving party has alleged and proven facts entitling it to relief.” Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So. 2d 734, 735 (Fla. 4th DCA 1980) (emphasis supplied).
We find no abuse of discretion in the trial court’s finding that submission of the verified complaint alone was insufficient to justify granting a temporary injunction. Orkin’s reliance on Florida Rule of Civil Procedure 1.610 is misplaced. This rule allows an affidavit or verified complaint to serve as a method of proof for an ex parte temporary injunction. An ex parte temporary injunction is issued with out notice and for a limited duration subject to a subsequent adversarial hearing with notice. Where, as here, there is a noticed and contested evidentiary hearing, the use of a verified complaint, standing alone, does not constitute proof sufficient for establishing the necessary elements of a temporary injunction.
Accordingly, we affirm the order denying the motion for preliminary injunction.
AFFIRMED.
WARNER, C.J., TAYLOR and HAZOURI, JJ., concur.
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Baltazar Salazar and Walter Salazar Pest Control v. Hometeam Pest Def., Inc., 230 So. 3d 619 (Fla. 2d DCA 2017)…opted ■■Hometeam’s proposed order. Analysis “A trial court’s ruling on a motion for a temporary injunction is clothed [*621] with a presumption of correctness, subject to reversal only for an abuse of discretion.” Orkin Extermination Co. v. Tfank, 766 So. 2d 318, 319 (Fla. 4th DCA 2000). However, a temporary injunction ^‘should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to . relief.” Morgan v. Herff Jones, Inc., 883 So. 2d 309, 313 (Fla. 2d DCA 2004).…1 / 2
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Golden Shores Props., LLC. v. Santopietro, 792 So. 2d 644 (Fla. 3d DCA 2001)…n Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744, 746 n. 1 (Fla. 4th DCA 1999). Even if Golden Shores’ complaint had been verified, it would have [*646] been insufficient to establish a prima facie case. See Orkin Extermination Co., Inc. v. Tfank, 766 So. 2d 318, 320 (Fla. 4th DCA 2000) (“Where, as here, there is a noticed and contested evidentiary hearing, the use of a verified complaint, standing alone, does not constitute proof sufficient for establishing the necessary elements of a temporary injunction”…
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Olson v. Olson, 260 So. 3d 367 (Fla. 4th DCA 2018)…of her attorney, her verified motion for injunction, and its attachments. A verified motion, by itself, is inadequate to establish the necessary proof when there is a noticed and contested evidentiary hearing. See Orkin Extermination Co. v. Tfank, 766 So. 2d 318, 319-20 (Fla. 4th DCA 2000). As we have said many times, the statements of an attorney are not evidence. We explained: [T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So. 2d 734 (Fla. 4th DCA 1980)
- 3299 N. Fed. Hwy., Inc. v. Bd. OF Cnty. Comm'rs OF Broward Cnty., 646 So. 2d 215 (Fla. 4th DCA 1994)
- Gold Coast Chem. Corp. v. Goldberg, 668 So. 2d 326 (Fla. 4th DCA 1996)