Beeler v. State ex rel. Lewis

513 So. 2d 710, 12 Fla. L. Weekly 2272, 1987 Fla. App. LEXIS 12180
CourtDistrict Court of Appeal of Florida
DecidedSeptember 17, 1987
DocketNo. 87-389
StatusPublished
Cited by4 cases

This text of 513 So. 2d 710 (Beeler v. State ex rel. Lewis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beeler v. State ex rel. Lewis, 513 So. 2d 710, 12 Fla. L. Weekly 2272, 1987 Fla. App. LEXIS 12180 (Fla. Ct. App. 1987).

Opinion

WIGGINTON, Judge.

Before us is an interlocutory appeal1 from an order denying motions to dissolve a temporary injunction granted without notice. By prior unpublished orders, we dissolved the temporary injunction and receivership insofar as appellants are concerned, without prejudice to the State to seek a temporary restraining order with notice and an opportunity for appellants to be heard. As indicated, we now issue this opinion to explain our reasoning in taking such action. On the two issues raised in this appeal, we affirm in part and reverse in part.

Appellee, State of Florida, by and through Gerald Lewis as Comptroller and [712]*712head of the Department of Banking and Finance, conducted a lengthy investigation of appellants’ activities under chapter 517, Florida Statutes, the “Florida Securities and Investor Protection Act,” and chapter 494, Florida Statutes, the “Mortgage Brokerage Act,” and on February 4,1987, filed a complaint in the circuit court for a temporary and permanent injunction, appointment of a receiver, and an order of restitution. The complaint was verified under oath and was supported by a number of sworn affidavits, and alleged, inter alia, that appellants, and certain other named individuals and corporations not parties to this appeal, were acting as unregistered securities dealers engaging in the offer and sale of unregistered securities by means of misrepresentations and fraudulent practices, and were engaging in fraudulent schemes relating to mortgage transactions. Moreover, in paragraph 49 of the complaint, appellee alleged that affording appellants’ notice and an opportunity to be heard in opposition to their application

... would likely result in the continuation and acceleration of unlawful and fraudulent acts and practices, and acceleration of the loss of substantial amounts of unsecured moneys acquired by the Defendants in violation of Florida law and hasten the destruction, alteration or concealment of the books, records and accounts of the Defendants.

Additionally, paragraphs 50-52 allege the following in support of injunctive relief without notice:

50. Bank records obtained by the Department pursuant to subpoena show insufficient funds in the Defendants’ accounts to accomplish any of the purported investment goals or to effect a full rescission. The affidavit of Rita Poff pertaining to those records is attached hereto and incorporated herein by reference as Exhibit 10.
51. Through bank records and investigative interviews, the Department has discovered that within the past several months, the Defendants have been taking and wasting ever-increasing amounts of investor funds.
52.The objective financial evidence establishes that if the Defendants’ assets are not forthwith frozen and a receiver appointed to administer whatever assets have not yet been wasted, the investors in Defendants’ securities scheme may recover nothing, and the public trust and confidence of the people of the State of Florida will be seriously undermined.

Accordingly, on February 5, 1987, the trial court issued a temporary injunction and appointed a receiver without notice. Appellants subsequently filed motions to dissolve the injunction, which motions were ultimately heard on May 12, 1987. On that date, approximately one and one-half hours before the hearing, appellee’s attorney filed a certificate concerning notice.2 The sole issue before the trial court at the hearing concerned the propriety of the court’s issuing the injunction without notice to appellants. The motions to dissolve were denied.3

Two issues are now raised by appellants in this appeal. We may dispense with the second issue by holding that based on the record and the parties’ representations made during the oral argument of this cause, appellants waived their right to a hearing within five days as provided by rule 1.610(d), Florida Rules of Civil Procedure. Accordingly, we affirm point two.

However, we find appellants’ arguments under point one meritorious and reverse the trial court’s order denying áppellants’ motions to dissolve. Under point one, appellants argue that the trial court erred in granting appellee’s application for a temporary injunction without notice and hearing based on the allegations of its verified complaint and accompanying affidavits. The thrust of their argument is that neither the allegations in the complaint nor the statements in the accompanying affidavits show that immediate and irreparable injury, loss [713]*713or damage would result to appellee before appellants could be heard in opposition, as required by rule 1.610(a)(1)(A) and case law. Incidentally, they argue that the complaint was defective insofar as appellee’s attorney failed to certify contemporaneously with the filing of the complaint any efforts that were made to give notice and the reasons why notice should not be given as required by rule 1.610(a)(1)(B) and (C).

In response, appellee preliminarily argues that appellants may not raise the notice issue in an appeal from the denial of a motion to dissolve a temporary injunction, relying on Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960) and Babuschkin v. Royal Standard Corporation, 305 So.2d 253 (Fla. 3d DCA 1974). In regard to the merits of the appeal, appellee refers this Court to the maxim that the dissolution of a temporary injunction is a matter lying within the discretion of the trial court, citing City Gas Company of Florida v. Ro-Mont South Green Condominium “R”, Inc., 350 So.2d 790 (Fla. 3d DCA 1977). Appellee also maintains that its complaint is “replete” with specific facts showing how and why the giving of notice to appellants would likely have accelerated or precipitated the destruction and concealment of records, and the dissipation of assets. It argues that the instances of illegal, dishonest and fraudulent activity are verified by the affidavits of financial specialists and department area financial managers who personally reviewed appellants’ bank records and interviewed investors, maintaining that those affidavits attest to appellants’ systematic, ongoing course of fraud as referenced in the complaint. Finally, appellee urges us to examine the entire complaint to determine whether it is entirely wanting in equity, referring us to the opinions in Dixie Music Co. v. Pike, 135 Fla. 671, 185 So. 441 (1938), and Godwin v. Phifer, 51 Fla. 441, 41 So. 597 (1906).

In regard to the certification issue, appel-lee maintains that the rule merely requires that counsel certify “any efforts” made to give notice and does not require that counsel actually make such efforts in circumstances where notice would result in harm. Moreover, appellee points to the fact that its attorney nevertheless did file written certificates similar to that required by the rule shortly before the hearing on the motion to dissolve and proposes that the filing of the certificate after the filing of the complaint should not constitute a basis for granting appellants’ motion to dissolve, since both lower and reviewing courts are required to consider a motion to dissolve based not on the record before the lower court at the time it issued the injunction, but on the record as it existed at the time of the hearing on the motion to dissolve. Zuckerman v. Professional Writers of Florida, Inc., 398 So.2d 870 (Fla. 4th DCA), rev. denied, 411 So.2d 385 (Fla.1981).

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530 So. 2d 932 (Supreme Court of Florida, 1988)
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Bluebook (online)
513 So. 2d 710, 12 Fla. L. Weekly 2272, 1987 Fla. App. LEXIS 12180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beeler-v-state-ex-rel-lewis-fladistctapp-1987.