Salas v. Alexander

159 So. 3d 387, 2015 Fla. App. LEXIS 3848, 2015 WL 1213851

• Court: District Court of Appeal of Florida
• Decided: March 18, 2015
• Docket: 3D14-2925
• Status: Published

Opinion

PER CURIAM.

Upon further consideration, this appeal is dismissed without prejudice. Because appellee has never posted the bond set by the trial court, there is no injunction in effect and no case or controversy for us to decide. Williamson v. Geneva, Inc., 550 So.2d 8, 11 (Fla. 2d DCA 1989).

Although we dismiss this appeal, we note separately that the order granting the temporary injunction and setting bond contained no timeframe within which ap-pellee was required to post the bond. Absent such a provision, appellee was given unilateral authority to determine whether and when the temporary injunction would take effect. This omission presented appellants with a Hobson’s choice:

1. File a notice of appeal within thirty days (which they did), even though appel-lee had not posted a bond, thereby risking a dismissal of the appeal as unripe (which we have done);

2. Do not file a notice of appeal until appellee posts a bond (which, given the absence of a timeframe, could be posted more than 30 days after rendition of the order), thereby risking a dismissal of the appeal for failing to file a notice of appeal within 30 days of rendition.

This example serves to underscore the infirmity of a temporary injunction order which sets a bond but does not provide a timeframe 1 within which the bond must be posted, and cannot be reconciled with case law holding that the failure to post a bond requires the dissolution of a temporary injunction order. See e.g., Hutchinson v. Kimzay of Florida, Inc., 637 So.2d 942 (Fla. 5th DCA 1994); Petriccione v. Ocean Landings Condo. Ass’n, 615 So.2d 215 (Fla. 5th D.CA 1993). By giving the mov-ant the unfettered right to determine when the injunction will take effect, the order effectively precludes the non-movant from seeking dissolution of the order for failure to post the bond. After all, how can the non-movant seek to dissolve a temporary injunction order for failure, to post a bond when the order contains no date by which the bond must be posted?

In light of this, we recommend that the Civil Procedure Rules Committee of the Florida Bar consider proposing an amendment to Florida Rule of Civil Procedure 1.610 to require a trial court to include, in its order granting a temporary injunction, a timeframe within which the bond must be posted.

Appeal dismissed.

1 . Historically, the Florida Supreme Court required the contemporaneous posting of a bond, and "repeatedly disapproved" the practice of granting temporary injunctions conditioned on the posting of a bond at a future date. See e.g., Ginsberg v. City of Daytona Beach, 103 Fla. 168, 170, 137 So. 253 (1931) and cases cited therein.