STEPHEN MUSS, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF ALEXANDER MUSS, DECEASED, APPELLANT,
v.
CHARLES H. ROSENBERG, APPELLEE
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A Florida appellate court reversed a trial court's denial of a motion to dissolve a temporary injunction that was issued without bond or notice. The court held that absent evidence and findings that the plaintiff lacked sufficient assets to post a bond, the trial court erred in refusing to dissolve the injunction.
A trial court errs in refusing to dissolve a temporary injunction issued without bond when the original complaint did not seek such relief and there is no evidence submitted or finding made that the plaintiff lacks sufficient assets to post the required bond.
[1] A temporary injunction may not be entered without bond unless the court makes a finding that the plaintiff lacks sufficient assets to post the bond.
[2] A trial court errs in refusing to dissolve a temporary injunction issued without bond when no evidence supports the plaintiff's inability to post the bond.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The original complaint did not seek a temporary injunction without bond. There was no evidence submitted nor finding made by the trial judge that the original plaintiff did not have sufficient assets to post a bond.”
Establishes the core legal requirement that a temporary injunction without bond must be supported by evidence and findings regarding plaintiff's inability to post bond.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRosenberg filed an equity action seeking to enjoin Muss from distributing partnership assets to himself or his assigns. The trial judge entered a temp…
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PER CURIAM.
The appellee filed a matter sounding in equity seeking, among other things, to enjoin the appellant from further distribution of assets of an alleged partnership to himself or his assigns.
A temporary injunction without notice and without bond was entered by the trial judge. Thereafter, the matter came on to be heard on a motion to dissolve, based principally upon the failure of the plaintiff to post an injunction bond. Following a hearing, the trial court denied the motion to dissolve and this interlocutory appeal ensued.
The appellant made an application for constitutional stay writ. Following oral argument thereon, the court announced it would determine the matter on the merits pursuant to Florida Appellate Rule 4.5 g(2).
The original complaint did not seek a temporary injunction without bond. There was no evidence submitted nor finding made by the trial judge that the original plaintiff did not have sufficient assets to post a bond.1 See: Fla.R.Civ.P. 1.610(b). Therefore, under a long line of authorities, the trial judge erred in refusing to dissolve the injunction. Ginsberg v. City of Daytona Beach, 103 Fla. 168, 137 So. 253 (1931); Hart v. Kapnias, 157 Fla. 846, 27 So. 2d 145 (1946); Belk’s Department Store, Miami, Inc. v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960); Metropolitan Dade County v. Polk Pools, Inc., 124 So. 2d 737 (Fla. 3d DCA 1960); Tampa Port Authority v. Deen, 179 So. 2d 416 (Fla. 2d DCA 1965); Hoffman v. White, 235 So. 2d 43 (Fla. 4th DCA 1970); Leopold v. Richard Bertram & Co., 265 So. 2d 710 (Fla. 3d DCA 1972); Byrne v. Rec Centers, Inc., 309 So. 2d 177 (Fla. 4th DCA 1975); La Gran Familia, Inc. v. Cuba Pharmacy, Inc., 349 So. 2d 769 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So. 2d 827 (Fla. 3d DCA 1977).
For the reasons above stated, the order denying the motion to dissolve is reversed, with directions to dissolve the temporary injunction issued without bond.
Reversed with directions.
. In fact, in the order denying the motion to dissolve, the trial judge initialed and crossed out the following:
sfc * * * #
“ * * * the plaintiff does not have the monies available to post bond * * * ”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DELTA Gen. Corp. v. Priess, 389 So. 2d 1083 (Fla. 3d DCA 1980)…hat the trial court erred in granting this temporary injunction without bond in the absence of any evidence that the Priesses were financially unable to give bond. In the present case, this clear error, see Fla.R. Civ.P. 1.610(b); Muss v. Rosenberg, 353 So. 2d 203 (Fla. 3d DCA 1977), serves only to exacerbate the error of entering the mandatory injunction.…
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Goldberger v. Regency Highland Condo. Ass'n, Inc., 383 So. 2d 1173 (Fla. 4th DCA 1980)…d finding, it was reversible error to issue an injunction without bond. Seminole Park and Fairgrounds, Inc. v. Tropic Bank of Seminole, 380 So. 2d 1335 (Fla. 5th DCA 1980); Silverman v. Blaustein, 369 So. 2d 86 (Fla. 3d DCA 1979); Muss v. Rosenberg, 353 So. 2d 203 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So. 2d 827 (Fla. 3d DCA 1977); Quadomain Condominium Ass’n, Inc. v. Pomerantz, 341 So. 2d 1041 (Fla. 4th DCA 1977). In view of our conclusion herein, it is unnecessary to reach any other i…
Authorities Cited (11 total)
- Belk's Dep't Store v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960)
- Ginsberg v. The City of Daytona Beach, 103 Fla. 168 (Fla. 1931)
- Tampa Port Auth. v. Deen, 179 So. 2d 416 (Fla. 2d DCA 1965)
- Metro. Dade Cnty. v. Polk Pools, Inc., 124 So. 2d 737 (Fla. 3d DCA 1960)
- Hoffman v. White, 235 So. 2d 43 (Fla. 4th DCA 1970)
- Hart v. Kapnias, 157 Fla. 846 (Fla. 1946)
- Crow v. James, 349 So. 2d 827 (Fla. 3d DCA 1977)
- Leopold v. Richard Bertram & Co., 265 So. 2d 710 (Fla. 3d DCA 1972)
- McCOY v. Florida-Georgia Tractor Co., Inc., 265 So. 2d 710 (Fla. 3d DCA 1972)
- Byrne v. REC Ctrs., Inc., 309 So. 2d 177 (Fla. 4th DCA 1975)