Gray v. Gray

958 So. 2d 955, 2007 WL 1213676
CourtDistrict Court of Appeal of Florida
DecidedApril 26, 2007
Docket1D06-4731
StatusPublished
Cited by4 cases

This text of 958 So. 2d 955 (Gray v. Gray) 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
Gray v. Gray, 958 So. 2d 955, 2007 WL 1213676 (Fla. Ct. App. 2007).

Opinion

958 So.2d 955 (2007)

Jimmy GRAY and Frances C. Gray, Appellants,
v.
Margaret M. GRAY, Jay Raymond Falocco, Mountain View Mortgage Company, Jimmy A. Gray, Janet M. Linn, Watson Custom Home Builders, Inc., and Branch Banking and Trust Company, Appellees.

No. 1D06-4731.

District Court of Appeal of Florida, First District.

April 26, 2007.
Rehearing Denied June 21, 2007.

Frederick R. Brock of Gartner, Brock and Simon, Jacksonville, for Appellants.

Ronald J. Davis, II of the Law Offices of Ronald J. Davis, II, P.A., Jacksonville, and Ross T. Clark, Jacksonville, for Appellees.

BENTON, J.

Jimmy and Frances C. Gray appeal a temporary injunction entered without notice to them. Whether or not the temporary injunction without notice was, as appellants contend, technically deficient, subsequent events have overtaken it: Before they appealed it, Jimmy and Frances C. Gray, defendants below, moved to dissolve the temporary injunction without notice, and participated in an evidentiary hearing on their motion to dissolve. As a result, the temporary injunction without notice was modified (and is subject to further modification once the proceedings precipitated by appellant's motion to dissolve have run their course[1]). Accordingly, *956 we dismiss as moot the appeal from the temporary injunction entered without notice.

I.

In her complaint below, appellee Margaret M. Gray alleged that she was a seventy-three-year-old widow who had been admitted to a nursing home; that, while she was confused and exhibiting symptoms of dementia, and lacked decisional capacity, her brother-in-law, Jimmy Gray, induced her to sign a durable power of attorney, even though members of the nursing staff told him she was not mentally competent to sign such a document; and that, after she had signed the power of attorney and a deed for her house, Jimmy Gray "cleaned out" her bank accounts, cashed her certificates of deposit, sold her house, and purchased vehicles and houses in his and other family members' names, liquidating and converting in all some $340,000 worth of Ms. Gray's assets.

Re-alleging these facts and reciting that she had filed an amended complaint against appellants (and others) alleging fraud, fraud in the inducement, breach of fiduciary duty, and conspiracy to commit fraud, Margaret M. Gray filed an Emergency Motion for Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property. No affidavits were attached to this motion. The motion alleged that conversation with the defendants' criminal defense counsel indicated little was left of her assets, which she had been counting on to maintain her for the rest of her life; and that, without intervention from the court to prohibit the defendants from expending any more of her assets, she would be irreparably harmed. The motion requested that the court grant the injunction without notice to other parties, alleging immediate and irreparable harm, if they were given notice, in that they might move, spend or deplete what remained of Ms. Gray's assets.

Granting the motion, the Order on Temporary Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property now under review was entered on August 24, 2006. The trial court found Margaret M. Gray faced immediate and irreparable injury, if the temporary injunction was not entered without notice to the defendants, appellants here, because "the actions of the Defendants as alleged thus far indicate that they have no intention of returning Plaintiff's assets to her and she risks becom[ing] destitute without access to her assets." On this stated rationale, the trial court ordered that bank accounts of the defendants be frozen and ordered the defendants not to sell, encumber, transfer or expend any assets, funds, or property which had been in Margaret M. Gray's name prior to May 26, 2006.

II.

Raising grounds like those urged on appeal, the defendants alleged in a motion to dissolve filed on August 29, 2006, that Florida Rule of Civil Procedure 1.610(a)(2) (2006) required endorsing the temporary injunction with the date and hour of its entry, which was not done; that a temporary injunction could only issue without hearing and notice when the facts were shown by affidavits or verified pleadings, but that the amended complaint was neither *957 verified nor accompanied by supporting affidavits; and that a bond was required, but that none was posted in this case. In addition, the defendants argued that the order did not include findings of fact showing that the plaintiff had an inadequate remedy at law or that success was likely on the merits because, by signing the warranty deed and durable power of attorney, Margaret M. Gray "contradicted" the allegations she made in the amended complaint.

On August 30, 2006, before the evidentiary hearing took place, Ms. Gray, through her attorney, filed a second, this time Verified Emergency Motion for Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property. The motion made substantially the same allegations as the original motion, and included the following: "The foregoing instrument was acknowledged before me on this 30th day of August, 2006 by Ronald J. Davis, III, who is personally known to me and did take an oath." (Mr. Davis was Ms. Gray's attorney, which fact became the basis for a challenge to the verification.) The same day, Ms. Gray also filed four affidavits in support of her renewed, verified motion for temporary injunction.[2]

The trial court entered at least one order after hearing evidence on the motion to dissolve the temporary injunction without notice, which modified the injunction by removing two of the defendants whom the original, temporary injunction had enjoined. The original, temporary injunction without notice, in which the appellants contend deficiencies existed, and which is the subject of their appeal, was thus modified and superseded pro tanto. See generally City Gas Co. of Fla. v. Ro-Mont S. Green Condo. "R", Inc., 350 So.2d 790, 791 (Fla. 3d DCA 1977).

III.

A temporary injunction may be entered without notice to an opposing party when "it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition," and the movant certifies to facts explaining why notice should not be required and recounts any attempts to give notice to the opposing party. Fla. R. Civ. P. 1.610(a)(1)(A)-(B) (2006). See also Fla. High Sch. Activities Ass'n, Inc. v. Marsonek, 805 So.2d 868, 870 (Fla. 2d DCA 2001).

Under Florida Rule of Civil Procedure 1.610(a)(2) (2006), "[n]o evidence other than the affidavit or verified pleading" is to be used to support an application for a temporary injunction, if the adverse party is not noticed for (and does not appear at) an evidentiary hearing. The rule requires that an injunction granted without notice define the threatened injury, contain findings demonstrating why the threatened injury may be irreparable, give reasons why the injunction was granted without notice to the opposing party, and include the date and hour of its entry. See Fla. R. Civ. P. 1.610(a)(2) (2006). The rule also specifies that an injunction should not be granted unless the party applying for the injunction gives a bond conditioned on the payment of any costs and damages the opposing party may sustain, if wrongfully enjoined. See Fla. R. Civ. P. 1.610(b) (2006).

*958

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Bluebook (online)
958 So. 2d 955, 2007 WL 1213676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-gray-fladistctapp-2007.