IDS LONG DISTANCE, INC., A FLORIDA CORPORATION, AND IDS TELCOM LLC, A FLORIDA LIMITED LIABILITY COMPANY, APPELLANTS,
v.
PHYLLIS HEIFFER, APPELLEE
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The court held that while the initial ex parte request for an injunction was improper, the subsequent motion to dissolve rendered the notice issue moot. However, the injunction was correctly dissolved because it was overbroad.
[1] Once a party has received notice and an opportunity to be heard on a motion to dissolve an injunction, the issue of lack of notice is rendered moot.
[2] An injunction is overbroad and may be dissolved without an evidentiary hearing if it restrains a party from far more activities than are permissible under a non-competiti…
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Join FLexlaw to unlock all legal intelligenceAppellants sought a temporary injunction enforcing a non-competition agreement. The trial court dissolved the injunction, initially citing improper ex…
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WARNER, J.
Appellants seek reversal of the trial court’s order dissolving an ex parte temporary injunction enforcing a non-competition agreement. While the trial court appeared to grant the motion based upon appellants’ improper ex parte request (we agree that it was improper), appellee elected to move to dissolve the injunction rather than appeal it. Once a “party has received the benefit of notice and an opportunity to be heard on the motion to dissolve,” the issue of lack of notice is rendered moot. State v. Beeler, 530 So. 2d 932, 934 (Fla.1988). Consequently, lack of notice is not a reason to affirm.
We nevertheless affirm the order dissolving the injunction because, on its face, the injunction was overbroad and restrained appellee from far more activities than were permissible under the provisions of the non-competition clause in the agreement. While the other allegations concerning the injunction’s impropriety may require an evidentiary hearing, the over-breadth claim does not. Therefore, the trial court did not err in dissolving the injunction without affording an evidentiary hearing.
While our ruling would be without prejudice to appellants renewing their application for a temporary injunction (with notice), appellee herself had filed a complaint for injunction before appellants filed their own complaint. In that suit, appellee sought an order enjoining appellants from attempting to enforce this very non-competition agreement on the ground that it was not enforceable for a variety of reasons, including that appellants no longer had a legitimate business interest to protect, nor was appellant IDS Telecom a party to the agreement. Appellants’ claim for injunctive relief was clearly a compulsory counterclaim to appellee’s suit, and the trial court rightfully criticized the fact that appellants’ counsel misled the court into granting the temporary injunction by failing to advise the court of the other pending lawsuit. The two suits should be consolidated before any further entitlement to an injunction is considered.
STEVENSON and HAZOURI, JJ., concur.