GINGER SOUD, WARREN ALVAREZ, ET AL., APPELLANTS,
v.
KENDALE, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 1st DCA | 2001-04-26
No. 1D00-1835
BENTON and PADOVANO, JJ., concur.
788 So. 2d 1051 Florida District Court of Appeal, First District (2001) Positive Treatment
Cited by 12 cases

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Synopsis

The Florida First District Court of Appeal reversed a temporary injunction granted ex parte against the Jacksonville City Council, holding that the trial court failed to comply with Rule 1.610(a) of the Florida Rules of Civil Procedure, which requires certification of notice efforts and explanation for denying notice.


Holding

The temporary injunction was reversed because Kendale and the trial court failed to comply with Rule 1.610(a) requirements: Kendale's filings contained no certification of efforts to give notice or reasons why notice should not be required, and the trial court's order provided no explanation for why notice was not granted.


Headnotes

[1] A temporary injunction may be granted without notice only if the movant's attorney certifies efforts made to give notice and the reasons why notice should not be required…

[2] Every temporary injunction granted without notice must explain why notice was not granted.

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Key Quotes

“A temporary injunction without notice is an extraordinary remedy that should be granted sparingly.”

Establishes the high bar for ex parte temporary injunctions

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Facts & Procedural History

Kendale, Inc. sought a land use amendment from the City of Jacksonville. After the Department of Community Affairs objected, the City Council schedule…

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Opinion of the Court
POLSTON, J.

POLSTON, J.

We grant the Jacksonville City Council’s Motion for Rehearing, withdraw our opinion dated February 27, 2001 (“Per Curiam Dismissed”), and reverse the trial court’s temporary injunction. The injunction is reversed for failure to comply with the provisions of Rule 1.610 of the Florida Rules of Civil Procedure.

Background

Appellee Kendale, Inc. applied to the City of Jacksonville for a land use amendment. The appellant Jacksonville City Council approved the amendment and transmitted it to the Florida Department of Community Affairs for a required review. The Department of Community Affairs objected to the amendment. The City Council scheduled a final public hearing for May 9, 2000, at 6:00 p.m., during which it would consider the Department’s comments and vote on Kendale’s amendment. Prior to this public hearing, the General Counsel’s Office of the City of Jacksonville requested a closed meeting to discuss the Department’s objections. The City Council scheduled this closed meeting, commonly referred to as a “shade meeting,” for Tuesday, May 9, 2000, at 3:00 p.m.

On May 8, 2000, Kendale filed a complaint for injunctive relief, a motion for a temporary injunction, and an affidavit in support of the motion for temporary injunction. That same day at 3:00 p.m., the trial court granted Kendale’s motion and entered an ex parte injunction.

The trial court’s order granting the temporary injunction made the following findings:

1. Plaintiff will suffer immediate and irreparable harm, loss or damage for which there is no adequate remedy at law, if the temporary injunction is not immediately entered prohibiting the City Council of the City of Jacksonville from holding a “Shade Meeting” of the City Council.

2. This injunction is necessary because the City Council of the City of Jacksonville intends to hold a “Shade Meeting” on May 9, 2000 at 3:00 p.m., pursuant to a letter issued by Ginger Soud, President of the City Council on May 4, 2000. This meeting is in violation of Florida Statutes § 286.011.

3. The entry of the temporary injunction will serve the public interest including the public interest that all actions of the City of Jacksonville be taken in public meetings.

4. There is a substantial likelihood that Plaintiff will prevail on the merits of this action.

The order then states, among other things, that “[t]he members of the Jacksonville City Council and each of them individually are hereby enjoined from participating in the “Shade Meeting” of the City Council scheduled for May 9, 2000 at 3:00 p.m.”

The trial court scheduled a hearing on the matter for 10:30 a.m. on May 9, 2000 to allow consideration of the matters, including any objections to the temporary injunction that might be raised. No appearances were made on behalf of the Council at the May 9, 2000 trial court hearing. The Council elected to appeal the trial court’s injunction, asserting that both the motion seeking the injunction and the trial court’s ruling were deficient under Rule 1.610 of the Florida Rules of Civil Procedure.

Temporary Injunction

A temporary injunction without notice is an extraordinary remedy that should be granted sparingly. State v. Beeler, 530 So. 2d 932, 933 (Fla.1988). Florida Rule of Civil Procedure 1.610, relating to the procedural and content requirements for injunctions, must be followed. United Farm Workers of America, AFL-CIO v. Quincy Corporation, 681 So. 2d 773, 776-777 (Fla. 1st DCA 1996).

A temporary injunction must be based on a showing of the following criteria: (1) a likelihood of irreparable harm, (2) no adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) a consideration of the public interest. City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750, 752 (Fla. 1st DCA 1994). Also, clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions. Id. at 754. Conclusory statements will not suffice. Id. at 753. Although the trial court’s ruling appears to be conclusory without sufficient factual findings, we need not reach that determination. We reverse because Ken-dale and the trial court failed to comply with the requirements of Rule 1.610(a) for seeking and granting a temporary injunction without notice.

Rule 1.610(a)(1) states in pertinent part that a “temporary injunction may be granted without written or oral notice to the adverse party only if: ... (B) the movant’s attorney certifies in writing any efforts that have been made to give notice; and (C) the reasons why notice should not be required.” In order to obtain the injunction, Kendale filed a complaint for in-junctive relief, a motion for a temporary injunction, and a sworn affidavit made by Kendale’s Vice President in support of the motion for a temporary injunction. None of those documents mention any effort on Kendale’s part to notify the Council members or why notice was not required.

Furthermore, Rule 1.610(a)(2) mandates that every temporary injunction granted without notice must explain why notice was not granted. The temporary injunction issued by the trial court provides no explanation concerning why notice was not granted.

The lack of notice could have been excused if Kendale’s complaint for injunctive relief and motion for a temporary injunction had demonstrated: (1) how and why providing notice to the city council would accelerate the potential harm, or (2) that the time required to provide notice would have allowed the threatened harm to occur. See City of Boca Raton v. Boca Raton Airport Authority, 768 So. 2d 1191 (Fla. 4th DCA 2000)(reversing an ex parte, temporary injunction because there was no reason the city attorney could not have been notified by telephone of an expedited hearing). However, Kendale’s complaint and motion made no allegations of that nature.

We reverse the trial court’s injunction. See County of Orange v. Webster, 503 So. 2d 988, 989 (Fla. 5th DCA 1987)(revers-ing an order granting a temporary injunction because the appellee completely failed to comply with Florida Rule of Civil Procedure 1.610).

At oral argument, the parties stipulated that the City has acted on the merits of Kendale’s amendment so that the controversy which precipitated this litigation is now moot. Accordingly, we dismissed the action.

However, as the Council points out in its motion for rehearing, an otherwise moot case will not be dismissed if there are collateral legal consequences affecting the rights of the parties. Godwin v. State, 593 So. 2d 211, 212 (Fla.1992). The Council argues that dismissal is precluded because Kendale is now seeking attorney’s fees at the trial court pursuant to section 286.011(4), Florida Statutes (2000)(grant-ing attorney’s fees when a defendant acts in violation of the Sunshine Act). We agree that this collateral legal consequence is an exception to dismissal of the case, and grant the Council’s timely motion for rehearing.1

Reversed and Remanded.

BENTON and PADOVANO, JJ., concur. . We distinguish Lund v. Department of Health, 708 So. 2d 645 (Fla. 1st DCA 1998), which held that the possibility of an award of attorney's fees to a prevailing party was not a collateral legal consequence that would preclude dismissal of a moot appeal. In the case before us, the award of fees against the Council is not as speculative and is more than a lost opportunity to potentially recover fees.


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Cited By

  • Mazer v. Orange Cnty., 811 So. 2d 857 (Fla. 5th DCA 2002)
    …Fla. 5th DCA 1992); see also Swanson v. Allison, 617 So. 2d 1100 (Fla. 5th DCA 1993). The instant case comes within the third exception. The collateral legal consequence here is Mazer’s right, vel non, to attorney’s fees. See Soud v. Kendale, Inc., 788 So. 2d 1051 (Fla. 1st DCA 2001) (holding that a request for attorney’s fees pursuant to the statute allowing attorneys fees when a defendant violates the Sunshine Act is a collateral legal consequence that is an exception to dismissal based on mootness); see al…
  • Rodger Bookall v. Sunbelt Rentals, Inc., 995 So. 2d 1116 (Fla. 4th DCA 2008)
    …his omission renders the order invalid under the plain reading of rule 1.610(a)(2). This deficiency could have been cured if the employer articulated in its complaint or motion reasons why notice should be dispensed with. See Soud v. Kendale, Inc., 788 So. 2d 1051, 1053 (Fla. 1st DCA 2001). Unfortunately for the employer, neither the complaint nor the motion cured the deficiency in this case. See id.; see also Lewis, 949 So. 2d at 1115. The trial court erred when it failed to articulate reasons why the injunc…

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