CURTIS POOLS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
GEORGE L. FULTON, APPELLEE
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Curtis Pools, Inc. sought a temporary and permanent injunction against former general manager George L. Fulton to enforce a non-compete agreement. The trial court dissolved the temporary injunction after hearing evidence, and the appellate court affirmed, finding no abuse of discretion.
The trial court did not abuse its discretion in dissolving the temporary injunction. The appellate court affirmed, finding that Curtis Pools failed to overcome the strong presumption favoring the lower court's ruling, particularly where the injunction was granted without notice and the trial judge heard testimony personally.
“It is incumbent upon the appellant to make it correctly appear on appeal that there has been an abuse of judicial discretion, every presumption being in the favor of the correctness of the court below.”
Establishes the high burden of proof required when appealing a discretionary trial court ruling on injunctive relief
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Join FLexlaw to unlock all legal intelligenceCurtis Pools, a Florida corporation, employed Fulton as general manager and vice-president. Fulton was asked to resign at a board meeting and, upon re…
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The appellant was the plaintiff and the appellee was the defendant in the lower court.
A complaint was filed against the defendant seeking a temporary and permanent injunction against him for an alleged violation of a contract not to compete entered into between the parties. A temporary injunction was issued without notice restraining the defendant from competing, discussing any matters pertaining to plaintiff’s business, or doing any act harmful or derogatory to plaintiff.
A motion was filed by the defendant to dissolve the temporary injunction. After two days of personally hearing the evidence, the lower court entered an order dissolving the temporary injunction.
The plaintiff is a Florida corporation engaged in the construction of gunite-type swimming pools. The defendant below, George L. Fulton, was employed as general manager and was elected vice-president and a director.
The defendant, at a meeting of the board of directors of the plaintiff corporation, was asked to resign from his positions and, upon his refusal to do so, his employment was terminated.
Included in the contract between the parties is the following:
“7. For and in consideration of the above and foregoing, Second Parties covenant and agree with First Party that in the event any of them terminate their services with First Party, they will not compete in any manner with First Party in any of its *444activities in Lee, Collier, Hendry or Charlotte Counties, Florida, for a period of five years from the date of such termination, nor will they discuss or disclose any matters pertaining to First Party and will not do any act or thing that will he harmful or derogatory to First Party.”
The granting or denying of a temporary injunction is within the sound discretion of the trial judge. It is incumbent upon the appellant to make it correctly appear on appeal that there has been abuse of judicial discretion, every presumption being in the favor of the correctness of the court below. This is peculiarly so where an injunction has been granted without notice to the defendant and upon testimony taken personally before the lower court, the appellant has the burden of overcoming a strong presumption of the correctness of the lower court’s ruling. See Ogden v. Baile, 69 Fla. 458, 68 So. 671; Dade Enterprises, Inc. v. Wometco Theatres, Inc., 119 Fla. 70, 160 So. 209; and Stirling Music Co. v. Feilbach, Fla.App. 1958, 100 So.2d 75.
It appears from the briefs and the contract in question that one of the issues that may be involved in this case on final hearing is the meaning of whether the word “terminate” above quoted in paragraph 7 of the contract, applies to the defendant since the termination was not a voluntary action but was caused by the action of the plaintiff. The lower court did not pass on this question and it was unnecessary for him to do so in view of the fact that he thought, under the evidence adduced on the motion to dissolve the injunction, that it should be granted.
The appellant in this case had the burden of showing from the evidence taken below that the injunction should not have been dissolved. It also had the duty to comply with Rule 4.2(d), Florida Appellate Rules, 31 F.S.A. relating to interlocutory appeals. This rule provides:
“No record on appeal shall be required or permitted other than certified copies of the appeal papers and1 the judgment or order appealed from. The appendices shall contain full copies of all pleadings and other parts of the record needed to determine the appeal.”
The appendix of appellant’s brief did' not contain any of the testimony taken before the lower court, although there was filed a transcript of testimony containing 168 pages. This rule makes it the duty of the appellant to point out and place in the appendix the testimony that is necessary for the court to read rather than file a complete transcript of the testimony.
The order appealed from is affirmed.
SHANNON, J., and SMITH, CULVER,. Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Broward Williams v. Ferrentino, 199 So. 2d 504 (Fla. 2d DCA 1967)…ty of a formal transcript and custodial certification. The few cases construing Rule 4.2, as to requirements of the record, indicate support for our views. See Gross v. Gross, Fla.App.1961, 131 So. 2d 487; Curtis Pools, Inc. v. Fulton, Fla.App.1959, 115 So. 2d 442; Tower Credit Corp. v. State, Fla.App.1966, 183 So. 2d 255; and Bailey v. Snyder, Fla.App.1965, 175 So. 2d 574. Overlooking the loose pleadings and proceedings below, and indulging a record here more by assumption than by authentication, we proceed…
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Hines v. Hester Dozer, 134 So. 2d 548 (Fla. 3d DCA 1961)…terlocutory appeal is from that order. We recognize, as pointed out by ap-pellees, that the granting or withholding of a temporary injunction is peculiarly within the sound discretion of the chancellor. Curtis Pools, Inc. v. Fulton, Fla.App. 1959, 115 So. 2d 442 and cases cited therein. We therefore approach this appeal with caution and with awareness that the appellants have the burden to make error clearly appear. The record reveals that the grounds for recall set forth in the affidavit are: “1. On or a…
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Durable Unif. & Linen Supply Co. v. Sanitary Linen Serv. Co., 183 So. 2d 226 (Fla. 3d DCA 1966)…ermining the propriety of a temporary injunction is the necessity for the appellant to show an abuse of discretion in its entry. See: North Dade Water Co. v. Adken Land Co., Fla.App.1959, 114 So. 2d 347; Curtis Pools, Inc., v. Fulton, Fla.App. 1959, 115 So. 2d 442; Cunningham v. Dozer, Fla.App.1963, 159 So. 2d 105. As to the temporary injunction, we find no abuse of discretion. See: Miami Laundry Company v. Sanitary Linen Service Co., supra; Superior Uniforms, Inc. v. Neway Uniform and Towel Supply of Florida…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade Enters., Inc. v. Wometco Theatres, Inc., 119 Fla. 70 (Fla. 1935)
- Davis v. Goodwin, 100 So. 2d 75 (Fla. 3d DCA 1958)
- Stirling Music Co., Inc. v. Feilbach, 100 So. 2d 75 (Fla. 3d DCA 1958)
- Ogden v. Baile, 69 Fla. 458 (Fla. 1915)