Opinion
No. 1D22-4
08-10-2022
HOLLAND M. WARE CHARITABLE FOUNDATION, Appellant, v. TAMEZ PINE STRAW LLC, a Florida limited liability company, Appellee.
Ginger Barry Boyd of Nelson Mullins Riley & Scarborough LLP, Tallahassee, for Appellant. Richard P. Petermann, Shiraz A. Hosein, and Kyle S. Bauman of Anchors Smith Grimsley, Fort Walton Beach, for Appellee.
Ginger Barry Boyd of Nelson Mullins Riley & Scarborough LLP, Tallahassee, for Appellant.
Richard P. Petermann, Shiraz A. Hosein, and Kyle S. Bauman of Anchors Smith Grimsley, Fort Walton Beach, for Appellee.
Per Curiam.
Appellant, Holland M. Ware Charitable Foundation (Foundation), seeks review of the trial court's non-final order granting Appellee's, Tamez Pine Straw LLC's (Tamez), emergency verified motion for temporary injunction. For the reasons that follow, we reverse and remand.
BACKGROUND
The Foundation and Tamez entered into a Pine Straw License Agreement, pursuant to which the Foundation granted Tamez an exclusive license to enter its property described as Shoal River Ranch for the purpose of gathering and removing pine straw and preparing the property for pine straw harvesting. The agreement granted the license from June 1, 2020, to May 31, 2023, but provided that "[i]n the event that the use of the Property changes or is sold during the term of this License, then this License may be terminated by Licensor, in its sole discretion upon notice to Licensee of change of use of subject Property or upon closing of sale ...." Upon entering into a purchase and sale contract with Long Creek Industrial LLC for a property that encompassed certain parcels within the Shoal River Ranch, and then closing the sale in October 2021, the Foundation notified Tamez of the sale and that the license was terminated. Tamez rejected the termination, and the parties filed suit against each other.
The Foundation sued Tamez for unlawful detainer, breach of contract, trespass, ejectment, and injunctive relief, and Tamez filed a verified counterclaim for breach of contract, conversion, and injunction. The parties disagreed on the interpretation of the termination clause of their license agreement, but it was undisputed that the Foundation had sold only a portion of the Shoal River Ranch, which is a 1,009.22-acre property. Tamez alleged in part that the Foundation terminated the license agreement without cause, barred its access to the Shoal River Ranch, and allowed another company, Swift Straw, to gather and remove pine straw from its licensed land. Tamez further alleged that it spent approximately $60,000 between June and September of 2021 on preparing its licensed land for pine straw harvesting, it is losing $6,000 per day for equipment expenses on the licensed property because of the Foundation's breach, and the property will produce 390 loads of pine straw per year at $4,410 per load, which amounts to $3,439,800 for the two seasons left on its license.
Tamez then filed an emergency verified motion for temporary injunction, asserting that the license agreement does not allow for termination because only 66.64 acres of the 1009.22-acre property was sold and the Foundation's conduct in preventing Tamez from exercising its rights and allowing another company to remove its pine straw is in direct violation of the agreement. Tamez alleged in part that it is being irreparably injured by the continued conversion of its private property and that it has no adequate remedy at law. Tamez requested an injunction directing the Foundation to allow it to gather and remove pine straw pursuant to its exclusive license and preventing the Foundation from allowing other companies to gather and remove its pine straw.
The trial court scheduled Tamez's motion for an evidentiary hearing for November 30, 2021, the same day it scheduled a hearing on the Foundation's motion for judgment on the pleadings. In first addressing the motion for judgment on the pleadings, the Foundation argued that pursuant to the license agreement, it has the discretion to terminate the entire agreement upon the sale of any portion of the property, even if only a square foot of the property is sold. Tamez, on the other hand, took the position that under the clear language of the license agreement, the "property" has not been sold and the license terminated only as to the 66.64-acre portion of the property the Foundation sold. The trial court pronounced that it was denying the motion for judgment on the pleadings, and without hearing further argument or taking any evidence, the court proceeded to grant the motion for temporary injunction. When the Foundation's attorney indicated that the injunction was a separate issue involving a separate set of facts, the court allowed her to proceed with her argument. Tamez did not call any witnesses or present any documentary evidence at the hearing, and the court stood by its ruling based on its disagreement with the Foundation's interpretation of the license agreement.
On December 3, 2021, following a bond hearing, the trial court entered an order granting Tamez's emergency verified motion for temporary injunction. The trial court found in part that the plain language of the license agreement does not allow the Foundation to terminate the agreement as to the unsold acres of the property, that the Foundation violated the agreement by barring Tamez from exercising its rights under the agreement, and that the Foundation's actions of allowing pine straw to be harvested by another company constituted improper misappropriation of Tamez's pine straw, which caused irreparable harm to Tamez and left it without an adequate remedy at law. The court added that the Foundation's misconduct poses harm to Tamez's contract and property rights that is not susceptible to complete compensation by pecuniary means. Accordingly, the court enjoined the Foundation from barring Tamez access to the unsold portion of the property and from interfering with its activities undertaken pursuant to the license agreement. The court further enjoined the Foundation from permitting any third party to remove pine straw from the unsold acreage, and it directed the Foundation to prevent any third party from harvesting or removing pine straw from the unsold portion of the property. This appeal followed.
ANALYSIS
Our review of an order granting a temporary injunction is hybrid: the trial court's legal conclusions are reviewed de novo , while its factual findings are reviewed for an abuse of discretion. DeSantis v. Fla. Educ. Ass'n , 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) ; see also State, Dep't of Health v. Bayfront HMA Med. Ctr., LLC , 236 So. 3d 466, 471 (Fla. 1st DCA 2018). Further, whether the evidence is legally sufficient to justify entry of an injunction is a question of law that we review de novo . See Hobbs v. Hobbs , 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020).
"A temporary injunction is an extraordinary remedy that should be granted sparingly." Bayfront HMA Med. Ctr., LLC , 236 So. 3d at 472. The purpose of a temporary injunction is to preserve the status quo while the movant seeks permanent injunctive relief. Id. Four essential elements must be proven to obtain this extraordinary relief: "(1) a substantial likelihood of success on the merits, (2) a lack of an adequate remedy at law, (3) the likelihood of irreparable harm absent the entry of an injunction, and (4) that injunctive relief will serve the public interest." Id. Each of these elements must be proven by the movant with competent, substantial evidence. Id. Failure to prove any one of the four elements mandates denial of the motion for temporary injunction. Id.
Irreparable injury cannot be found where the asserted injury is doubtful, eventual, or contingent, and money damages and loss of business to a competitor generally do not suffice to demonstrate irreparable injury. Bayfront HMA Med. Ctr., LLC , 236 So. 3d at 475. Irreparable injury is defined as injury that cannot be cured by money damages, and the test for unavailability of adequate remedy at law is whether a judgment can be obtained, not whether it will be collectible once obtained. Sammie Invs., LLC v. Strategica Capital Assocs., Inc. , 247 So. 3d 596, 600 (Fla. 3d DCA 2018) ; see also Bautista REO U.S., LLC v. ARR Invs., Inc. , 229 So. 3d 362, 365 (Fla. 4th DCA 2017).
Although Tamez's motion for temporary injunction was set for an evidentiary hearing, the trial court did not hear any testimony or receive any documentary evidence before granting it. When Tamez's contested verified motion was noticed for an evidentiary hearing, its verified allegations and counsel's arguments were inadequate to establish the necessary proof for entitlement to injunctive relief. See Olson v. Olson , 260 So. 3d 367, 369 (Fla. 4th DCA 2018) (explaining that "[a] verified motion, by itself, is inadequate to establish the necessary proof when there is a noticed and contested evidentiary hearing" and "the statements of an attorney are not evidence"). Therefore, there was no competent, substantial evidence presented for a temporary injunction.
We also agree with the Foundation that Tamez did not establish that it would be irreparably harmed if the injunction was not granted, nor that it had no adequate remedy at law. The trial court did not explain why the harm to Tamez is not susceptible to monetary compensation, and the record does not contain competent, substantial evidence in support of the court's findings that Tamez is suffering irreparable harm and lacks an adequate remedy at law. To the contrary, Tamez's verified counterclaim reflects that its damages are monetary and calculable for it alleged its damages to be $60,000 for preparing the licensed land between June and September 2021, $6,000 per day for equipment expenses, and 390 loads of pine straw per year at $4,410 per load. Tamez's allegations demonstrate that it is not suffering irreparable harm and has an adequate remedy at law—money damages—should it prevail on the merits of its claim.
CONCLUSION
Based on the foregoing, we reverse the trial court's order granting Tamez's emergency verified motion for temporary injunction and remand for the court to dissolve the injunction.
REVERSED and REMANDED .
Lewis and Osterhaus, JJ., concur; Rowe, C.J., concurs with opinion.
Rowe, C.J., concurring.
I concur in the majority opinion reversing and remanding for the trial court to vacate the temporary injunction. But along with reversing based on Tamez's failure to meet its evidentiary burden to show entitlement to the injunction, I would also reverse because the trial court erred by accepting the allegations in Tamez's verified motion as true and not taking evidence before it granted the injunction.
The issuance of a temporary injunction is "an extraordinary and drastic remedy which should be granted sparingly and with caution only after the [party seeking the injunction] has proven sufficient facts entitling it to relief." Bemas Corp. v. City of Jacksonville , 298 So. 2d 467, 469 (Fla. 1st DCA 1974) ; see also Fla. Dep't of Health v. Florigrown, LLC , 317 So. 3d 1101, 1110 (Fla. 2021). In determining whether the party seeking an injunction has met its burden of proof, the trial court must make "[c]lear, definite, and unequivocally sufficient factual findings [to] support each of the four conclusions necessary to justify entry of a preliminary injunction." City of Jacksonville v. Naegele Outdoor Advert. Co. , 634 So. 2d 750, 754 (Fla. 1st DCA 1994) approved sub nom. , Naegele Outdoor Advert. Co. v. City of Jacksonville , 659 So. 2d 1046 (Fla. 1995), as modified on reh'g (Aug. 24, 1995). To be legally sufficient, the trial court's factual findings must be supported by competent, substantial evidence. See Bd. of Cnty. Commissioners, Santa Rosa Cnty. v. Home Builders Ass'n of W. Florida, Inc. , 325 So. 3d 981, 984 (Fla. 1st DCA 2021) (quoting Planned Parenthood of Greater Orlando, Inc. v. MMB Props. , 211 So. 3d 918, 926 (Fla. 2017) ). As to the injunction order here, the trial court's findings lack evidentiary support.
At the temporary injunction hearing, Tamez offered no evidence or testimony in support of its verified motion. In determining that Tamez met its burden of proof, the trial court relied on the allegations in the verified motion. But the trial court erred when it relied on the untested allegations in the verified motion. In a contested hearing on a motion for temporary injunction, a trial court must take evidence. See Charlotte County v. Grant Med. Transp., Inc. , 68 So. 3d 920, 922 (Fla. 2d DCA 2011) ("A verified complaint or motion, by itself, is inadequate to establish the necessary proof when there is a noticed and contested evidentiary hearing."); Orkin Extermination Co. v. Tfank , 766 So. 2d 318, 319 (Fla. 4th DCA 2000) (explaining that "submission of the verified complaint alone was insufficient to justify granting a temporary injunction"). Because Tamez presented no evidence or testimony at the temporary injunction hearing, no competent, substantial evidence supports the trial court's findings and thus those findings are insufficient. For this reason, and the reasons expressed in the majority opinion, the trial court reversibly erred when it granted the motion for temporary injunction.