JOANNE M. WEISS, APPELLANT,
v.
MITCHELL H. WEISS, ET AL., APPELLEE

Fla. 5th DCA | 2009-03-06
No. 5D08-974
PALMER, C.J. and SAWAYA, J., concur.
5 So. 3d 758 Florida District Court of Appeal, Fifth District (2009) Caution
Cited by 5 cases

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Synopsis

In a dissolution of marriage dispute, the trial court granted an attorney's motion for fees and a charging lien, and also entered an order enjoining the client from making allegedly defamatory statements about the attorney online. The appellate court affirmed the charging lien but reversed the injunction, holding that injunctive relief against alleged defamation requires proper pleadings and that prior restraints on free expression are presumptively unconstitutional.


Holding

The trial court properly imposed the charging lien but lacked jurisdiction to enter the injunction against alleged defamatory statements. Injunctive relief against defamation generally is unavailable without proper pleadings, and prior restraints on free expression are presumptively unconstitutional.


Headnotes

[1] A trial court may not grant injunctive relief in the absence of a pleading stating a cause of action that would allow for such relief.

[2] Injunctive relief cannot be granted sua sponte by a trial court without the required pleadings and notice.

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Key Quotes

“a trial court may not entertain injunctive relief sua sponte in the absence of the required pleadings and notice”

Establishes that the trial court lacked authority to enter an injunction without proper pleadings before it.

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Facts & Procedural History

Joanne M. Weiss and her former attorney, J. Erwin Dunlop, disputed fees in a dissolution of marriage proceeding. Ms. Weiss had published statements on…

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

A fee dispute arose between Joanne M. Weiss and her former attorney, J. Erwin Dunlop, in a dissolution of marriage proceeding. As a consequence, and after withdrawing as her attorney, Mr. Dunlop filed a motion for attorney’s fees and for a charging lien. After providing notice to Ms. Weiss and conducting a hearing, the trial court granted the requested fees and imposed a charging lien. We affirm the order imposing the charging lien without further comment.

At the hearing on the fee motion, Mr. Dunlop advised the trial court that Ms. Weiss had published statements, which he contended were defamatory concerning their fee dispute on various internet websites. The statements related to Ms. Weiss’s allegation that Mr. Dunlop had fraudulently charged $7,500 as a partial fee on one of her credit cards without permission. Mr. Dunlop strongly denied doing so, and the court found the charge to be proper.

But that did not put the matter to rest. In addition to imposing the charging lien, at Mr. Dunlop’s request, the trial court ordered Ms. Weiss to stop making the allegedly defamatory statements about Mr. Dunlop and remove the statements about him from the websites where they had been posted, ruling:

THE COURT: ... So I’m ordering you — and Mr. Dunlop is going to pre*760pare an order — to pay his bill. You are ordered to remove any reference to anything that Mr. Dunlop did from whatever website you put it on. You are ordered to discontinue telling anyone that Mr. Dunlop in any way charged anything on your credit card without your permission, because he didn’t. And if you — he’s going to prepare that order, and it’s going to be sent to you, and you’re going to do what’s on it or Mr. Dunlop will bring you in here on a motion for contempt and I will put you in jail. Do you understand that, Ms. Weiss?
MS. WEISS: For how many days, Your Honor?
THE COURT: Well, I’m not — do you want to know today? Do you want to just go ahead and go to jail?
MS. WEISS: I will go to jail, Your Honor, because I am an honest woman.

The court then entered an order, incorporating these oral rulings.

Ms. Weiss correctly contends that the order entered by the trial court was outside the jurisdiction of the dissolution proceeding that brought her before the court. The order provides injunctive relief, which was improper as there was no pleading before the court stating a cause of action that would allow the entry of an injunction. Waterman Broad. Corp. v. Saro, 555 So.2d 1273 (Fla. 2d DCA 1989). Indeed, a trial court may not entertain injunctive relief sua sponte in the absence of the required pleadings and notice. First Union Nat’l Bank of Fla., N.A. v. Peoples Nat’l Bank of Commerce, Miami, 644 So.2d 538, 539 (Fla. 3d DCA 1994). In the absence of some other independent ground for invoking equitable jurisdiction, equity will not enjoin either an actual or threatened defamation. Demby v. English, 667 So.2d 350 (Fla. 1st DCA 1995); Reiter v. Mason, 563 So.2d 749 (Fla. 3d DCA 1990). In fact, most prior restraints on an individual’s constitutional right of free expression are presumptively unconstitutional. Animal Rights Foundation of Fla., Inc. v. Siegel, 867 So.2d 451, 457 (Fla. 5th DCA 2004). Because injunctive relief is generally unavailable, a complainant is typically left to his or her remedy at law. Moore v. City Dry Cleaners & Laundry, 41 So.2d 865 (Fla.1949); United Sanitation Servs. of Hillsborough, Inc. v. City of Tampa, 302 So.2d 435 (Fla. 2d DCA 1974).

For these reasons, the order imposing a charging lien is affirmed. The order enjoining Ms. Weiss’s alleged defamatory comments is reversed.

AFFIRMED in part; REVERSED in part, and REMANDED.

PALMER, C.J. and SAWAYA, J., concur.


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