TOWER CREDIT CORPORATION, CONSUMER CREDIT CORPORATION, INDIAN RIVER LOAN COMPANY, FINANCIAL CORPORATION OF FLORIDA, CENTRAL FACTORS, INC., R. C. FERNON, DOROTHY FERNON AND FRED KOEPP, APPELLANTS
v.
STATE OF FLORIDA, BY FRED O. DICKINSON, JR., COMPTROLLER, EARL FAIRCLOTH, ATTORNEY GENERAL, AND BROWARD WILLIAMS, STATE TREASURER, AS AND CONSTITUTING THE FLORIDA SECURITIES COMMISSION, APPELLEE
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Defendants appeal from an interlocutory order extending a temporary restraining order and appointing a receiver under Florida's Blue Sky Law for alleged securities violations. The appellate court affirms the order, holding that defendants failed to demonstrate an abuse of discretion by the trial court in issuing the restraining order without notice.
The court affirmed the extended restraining order, finding that defendants failed to demonstrate an abuse of judicial discretion. The court held that allegations in the sworn complaint and supporting affidavits are presumed true in the absence of a motion to dissolve, and that the trial court properly considered the entire record when determining that notice would accelerate irreparable harm.
“In the absence of a motion to dissolve, review of a temporary restraining order has been denied.”
Establishes the procedural requirement that defendants should have filed a motion to dissolve before appealing, and that absent such motion, allegations in sworn complaints are presumed true.
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Join FLexlaw to unlock all legal intelligenceThe Florida Securities Commission filed a complaint alleging that the defendants engaged in acts and practices violating Florida's Blue Sky Law. The t…
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The defendants appeal from an interlocutory order in chancery extending the scope of a prior temporary restraining order issued upon the complaint of the Florida Securities Commission. The complaint alleged acts and practices in violation of the’ Florida “Blue Sky Law”, F.S.A. ch. 517, sworn to by an assistant attorney general and supported by an affidavit of a field investigator for the commission. The court granted the commission’s motion for temporary restraining order and the appointment of a receiver without notice, and two days later the order was amended by changing the receiver. Three days later on a motion of the commission, the court permitted certain supplements to the complaint, including the addition of parties-defendants and an appointment of a receiver for an additional corporate defendant. Certain of the defendants filed a notice of appearance by their attorneys, and then the commission filed its motion for an extension of the temporary restraining order previously entered. The motion was sworn to and supported by affidavits of the receiver reciting certain' facts occurring subsequent to the initial restraining order. The court granted the motion and entered an order extending the scope of the prior restraining order to include enjoining and restraining the defendants from calling or holding a corporate directors’ meeting and from filing any new suits in any other state or federal court, except appeals, without obtaining specific permission from the court. It is from this order modifying and extending the scope of the prior restraining order that the defendants appeal.
Defendants did not move to dissolve the injunction but short-circuited the trial court procedure by this appeal. In the absence of a motion to dissolve, review of a temporary restraining order has been denied. Greater Miami Development Corporation v. Pender, 1940, 142 Fla. 390, 194 So. 867. We strongly recommend filing a motion to dissolve and a hearing where the facts may be fully developed and an order entered. In the absence of such a procedure the allegations in the sworn complaint and the statements in the supporting affidavits are presumed to be true.
Defendants contend that the order extending the scope of the femporary restraining order should be reviewed by considering only the motion seeking said order and the supporting affidavits attached. On the other hand the commission directs our attention to the entire record made in the trial court. We concur in the commission’s position. Every court will take judicial notice of its own records appearing in the case before it for consideration. McNish v. State, 1904, 47 Fla. 69, 36 So. 176. The trial court properly considered all prior proceedings of record in this case when it entered the order here appealed. The prior proceedings have been incorporated in the appendices as a part of the record of the trial court pursuant to F.A.R. 4.2(d), 31 F.S.A. Thus, the source of the trial court’s knowledge has been brought into the appellate record and we will consider all of the record in our review of the order appealed. Ramsey v. City of Kissimmee, 1933, 111 Fla. 387, 149 So. 553. This does not expand our review to the prior order. Our review is confined to the order specified in the notice of appeal, notwithstanding the fact that consideration is made of the entire record.
We find that the defendants have not demonstrated an abuse of judicial discretion in the trial court’s determination that the allegations of the sworn complaint, subsequent sworn motions and accompanying affidavits state facts which made it manifest that the giving of notice would accelerate *257the alleged injury resulting in irreparable harm and damage. See Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441; Kilgore Groves, Inc. v. Mayo, 1939, 136 Fla. 615, 187 So. 256; and Lane v. Clein, Fla.App.1962, 137 So.2d 15.
Affirmed.
SMITH, C. J., and ANDREWS and WALDEN, JJ., concur.
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Broward Williams v. Ferrentino, 199 So. 2d 504 (Fla. 2d DCA 1967)…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 to consideration of the merits. B—The Circuit Court Proce…
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In re Est. of Philip E. Lindsay, 207 So. 2d 736 (Fla. 4th DCA 1968)…the amount of the claim of the lessors for rent as an administrative expense for the storage of the estate’s assets from which order no appeal has been taken of which this court takes judicial notice. Tower Credit Corporation v. State, Fla.App.1966, 183 So. 2d 255; McNish v. State, 1904, 47 Fla. 69, 36 So. 176. It follows that whatever disposition would be taken by this court in disposing of the orders appealed would in no way offset or disturb the order of September 17th. Thus, the judgment creditors having…
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Hotel-Motel v. Black Angus OF Lauderhill, Inc., 290 So. 2d 479 (Fla. 1974)…a temporary injunction is not subject to appellate review. Just as the plaintiff in the case sub judice, Seminole Asphalt cited Greater Miami Development Corporation v. Pender, 142 Fla. 390, 194 So. 867 (1940) and Tower Credit Corporation v. State, 183 So. 2d 255 (Fla.App. 4th, 1966) in support of its position. The District Court of Appeal adequately distinguished these cases and said: “The above cited authorities do not resolve the instant judicial problem, which is: Does this Court have jurisdiction to re…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McNish v. State, 47 Fla. 69 (Fla. 1904)
- Dixie Music Co., Inc. v. Pike, 135 Fla. 671 (Fla. 1938)
- Greater Miami Dev. Corp. v. Pender, 142 Fla. 390 (Fla. 1940)
- Ramsey v. City of Kissimmee, 111 Fla. 387 (Fla. 1933)
- Lane v. Reubin J. Clein, 137 So. 2d 15 (Fla. 3d DCA 1962)
- Kilgore Groves, Inc. v. Mayo, 136 Fla. 615 (Fla. 1939)