JULES PASCUL, APPELLANT,
v.
GEORGE DAVIS & CO., AND MIAMI BEACH HOLIDAYS, INC., APPELLEES
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In this employment non-compete case, the Florida District Court of Appeal affirmed the trial court's denial of a motion to dismiss for lack of personal jurisdiction but reversed the trial court's refusal to dissolve a temporary injunction issued without service of process on the defendant.
While a chancellor has the power to issue a temporary injunction prior to service of process, the plaintiff must cause service to be made on the defendant within a reasonable time after institution of suit for the temporary injunction to stand. The motion to dismiss for lack of jurisdiction should be overruled, but the temporary injunction must be dissolved due to the failure to secure service of process.
“Undoubtedly, the chancellor has the power to issue a temporary injunction prior to service of process upon a defendant.”
Establishes the general principle that temporary injunctions may be issued before service of process
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Join FLexlaw to unlock all legal intelligenceThe appellee filed a complaint seeking to enjoin the appellant from violating a non-competitive agreement in an employment contract. A temporary injun…
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By this appeal, the appellant seeks review of an adverse order of the trial court refusing to dissolve a temporary injunction and dismissing a complaint in chancery.
The appellee, plaintiff in the trial court, filed a complaint seeking to enjoin the defendant [an alleged resident of Dade County] from violating a non-competitive agreement in a contract of employment. A temporary injunction was issued upon a sworn complaint. A special appearance was filed, together with the motion to dismiss the complaint and injunction for lack of jurisdiction over the person of the defendant. It was conceded that no service of process was had upon the defendant in any form, actual or constructive. Upon hearing the motion upon special appearance, the chancellor overruled same and this appeal ensued.
We affirm so much of the chancellor’s order as overruled the motion to dismiss the complaint. But, we reverse the failure to dissolve the temporary injunction because of lack of process upon the defendant. Undoubtedly, the chancellor has the power to issue a temporary injunction prior to service of process upon a defendant. See: Thebaut v. Canova, 11 Fla. 143; Smith v. Housing Authority of Daytona Beach, 148 Fla. 195, 3 So.2d 880; 28 Am.Jur., Injunctions, § 246. However, it is incumbent upon the plaintiff to cause service to be made upon the defendant within a reasonable time after the institution of the suit if the temporary injunction is to stand. See: 43 C.J.S. Injunctions § 242. Of course, the mere fact that the temporary injunction is dissolved [because of the failure to secure service of process upon the defendant] will not remove the defendant from the effect thereof in the event a permanent injunction should be entered after service of process and subsequent to final hearing. See: Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541; Peters v. Southern Bell Tel. & Tel. Co., Fla.1954, 70 So.2d 547; Pearce v. Pearce, Fla.App.1957, 97 So.2d 329; 17 Fla.Jur., Injunctions, § 6.
*468It is also to be pointed out that this opinion is not to be construed as, in any way, limiting the principle that a party enjoined by an injunction is bound by its terms until it is dissolved if he has knowledge of it, notwithstanding the fact that he may not have been actually served with a copy thereof. See: Thebaut v. Canova, supra; Seaboard Air Line R. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529; Savage v. Winfield, 152 Fla. 165, 11 So.2d 302.
Therefore, the order here under review is affirmed in part and reversed in part, in accordance with the views expressed above.
Affirmed in part; reversed in part.
(concurring specially).
I concur in the decision and the holdings which affirm the order denying the motion to dismiss the complaint and reverse the order denying the motion to dissolve. I cannot agree that the defendant will be bound by the terms of the temporary injunction in the event a permanent injunction is subsequently entered.
TILLMAN PEARSON, Judge
(concurring specially).
I concur in the decision and the holdings which affirm the order denying the motion to dismiss the complaint and reverse the order denying the motion to dissolve. I cannot agree that the defendant will be bound by the terms of the temporary injunction in the event a permanent injunction is subsequently entered.
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Bd. of Pub. Instruction of Palm Beach Cnty. v. First Fla. Utils., Inc., 28 Fla. Supp. 175 (Palm Beach Cty. Cir. Ct. 1967)…to the law for the violation of its mandate as if the writ has been regularly served upon him by the proper officer of the court.” This rule has been uniformly upheld in our state. See Savage v. Winfield, 11 So. 2d 302; Pascul v. George Davis & Co., 170 So. 2d 466. Respondents vigorously contend that the provision of paragraph 6 of the injunction order, that it “shall become effective by service of a copy hereof upon any officer of the defendant corporation or upon an agent or employee of the defendant in ch…
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The Marine Bank OF Monroe Cnty. v. Richard C. Milstein Ad Litem in the Guardianship of Madeline Laughead, 533 So. 2d 891 (Fla. 3d DCA 1988)…975), cert, denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642 (1976); Savage v. Winfield, 152 Fla. 165, 11 So. 2d 302 (Fla.1943); Thebault v. Canova, 11 Fla. 143 (1867); 60 C.J.S. Motions & Orders § 65 (1969); Compare Pascal v. George Davis & Co., 170 So. 2d 466 (Fla. 3d DCA 1965). Of course, after the funds are returned, the bank would continue to have its right, as any other creditor, to pursue the assets of the wards for collection of its due obligations upon proper notice and petition, to the guardian…
Authorities Cited
- Seaboard Air Line Ry. Co. v. Tampa S. R.R. Co., 101 Fla. 468 (Fla. 1931)
- Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634 (Fla. 1931)
- Smith v. Hous. Auth. of the City of Daytona Beach, 148 Fla. 195 (Fla. 1941)
- Bartolo Thebaut and Franklin Glazier v. Canova, 11 Fla. 143 (Fla. 1867)
- Pearce v. Pearce, 97 So. 2d 329 (Fla. 2d DCA 1957)
- Savage v. Winfield, 152 Fla. 165 (Fla. 1943)
- Peters v. S. Bell Tel. & Tel. Co., 70 So. 2d 547 (Fla. 1954)