SeaEscape, Ltd. v. Maximum Mktg. Exposure, Inc.

568 So. 2d 952, 1990 WL 138403
CourtDistrict Court of Appeal of Florida
DecidedSeptember 21, 1990
Docket90-1527
StatusPublished
Cited by16 cases

This text of 568 So. 2d 952 (SeaEscape, Ltd. v. Maximum Mktg. Exposure, Inc.) 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
SeaEscape, Ltd. v. Maximum Mktg. Exposure, Inc., 568 So. 2d 952, 1990 WL 138403 (Fla. Ct. App. 1990).

Opinion

568 So.2d 952 (1990)

SEAESCAPE, LTD., INC., Appellant,
v.
MAXIMUM MARKETING EXPOSURE, INC., and Joseph M. Panebianco, Appellees.

No. 90-1527.

District Court of Appeal of Florida, Third District.

September 21, 1990.
Rehearing Denied November 7, 1990.

*953 Akerman, Senterfitt & Eidson and Stanley H. Wakshlag and Oscar A. Sanchez, Miami, for appellant.

Shea & Gould and Alberto A. Macia, Miami, for appellees.

Before HUBBART, FERGUSON and COPE, JJ.

COPE, Judge.

Appellant SeaEscape, Ltd., Inc., defendant below, appeals non-final orders which entered an ex parte temporary injunction, denied SeaEscape's motion to dissolve it, and denied SeaEscape's motion to increase the injunction bond. We reverse.

SeaEscape, operator of cruise ships sailing from Miami, entered into two employment agreements, one with appellee Maximum Marketing Exposure, Inc., and the other with appellee Joseph M. Panebianco, both of whom were plaintiffs below. Under the employment agreements, Panebianco served as SeaEscape's Vice President of Sales and Marketing, for which he received a salary and other compensation. Maximum Marketing was employed to operate the Tour Reservations Department of SeaEscape, which involved booking certain tour passenger business. For this service Maximum was to be compensated at a specified rate per traveler. Both contracts were terminable for good cause. Disputes involving the contracts were to be resolved by arbitration.

On May 10, 1990 SeaEscape notified Panebianco that his contract was terminated effective immediately, and notified Maximum Marketing that its contract would terminate effective June 15, 1990. On June 7, 1990 plaintiffs filed a demand for arbitration with the American Arbitration Association. The same day, plaintiffs filed a complaint seeking a temporary injunction to enforce both contracts pending resolution of the parties' dispute by arbitration. On June 8 plaintiffs obtained an ex parte temporary injunction which required SeaEscape to perform both contracts pending further order of the court. The injunction required SeaEscape to reinstate Panebianco and to maintain the Maximum Marketing contract in full force and effect. The plaintiffs' ex parte motion requested an injunction bond of $500, and during the ex parte hearing the trial court set the injunction bond at $1,500, which plaintiffs posted.

SeaEscape promptly moved to dissolve the injunction, which relief was denied. SeaEscape also moved to increase the amount of the injunction bond, and submitted an affidavit requesting a one million dollar bond. SeaEscape brought witnesses to the hearing prepared to testify in support of a higher bond. The trial judge found that an evidentiary hearing would be needed on the motion to increase the bond, but stated that he had no time available to conduct the hearing. The judge stated, therefore, that the bond would not be changed at that time, and that another judge would have to conduct the evidentiary hearing. Plaintiffs specifically agreed that an evidentiary hearing would be necessary.

Although the trial judge had made it very clear that an evidentiary hearing would be required on the motion to increase the amount of bond, inexplicably the court's written order provided that "the Defendant's Motion in the Alternative to Increase the Amount of the Bond is denied and Plaintiffs' bond shall remain at $1,500."[1] SeaEscape filed an emergency motion for rehearing on that issue,[2] and *954 requested that the administrative judge assign a judge for an evidentiary hearing on the amount of bond. Although they had previously conceded before the initial judge that an evidentiary hearing would be necessary, plaintiffs wrote to the administrative judge opposing SeaEscape's request for a hearing. Plaintiffs' letter indicated that the trial judge had already conducted two hearings on the issuance of the temporary injunction, accused SeaEscape of "blatant forum shopping," requested "that Defendant's counsel be admonished for his conduct," and asked "that his request for still another hearing on this matter be summarily denied." The requests for evidentiary hearing were denied, the motion for rehearing was denied without a hearing, and the bond remained at $1,500. SeaEscape appealed.

It is plain that the injunction should not have been entered in the first instance, and the motion to dissolve should have been granted. The contracts at issue here are ordinary contracts for employment or personal services. Such contracts are not enforceable by injunction or specific performance. E.g., Shearson Lehman Hutton, Inc. v. Meyer, 561 So.2d 1331 (Fla. 5th DCA 1990); Mosely v. De Moya, 497 So.2d 696, 697 (Fla. 3d DCA 1986); Mike Smith Pontiac GMC, Inc. v. Smith, 486 So.2d 89, 90 (Fla. 5th DCA 1986); see Restatement (Second) of Contracts § 367(1)(1981); 11 S. Williston, A Treatise on the Law of Contracts § 1423 (3d ed. 1968); 5A A. Corbin, Corbin on Contracts §§ 1204-09 (1964). The appropriate remedy in such cases is an action for damages for breach of contract. Mosely v. De Moya, 497 So.2d at 698.

Plaintiffs contend, however, that they may avoid the general rule just stated by reliance on Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (1931). Bowling is of no assistance to plaintiffs. First, Bowling reiterates the general rule that "personal contracts for service will not ... be enforced by courts of equity." Id. at 638, 135 So. at 544. Under Bowling, an agreement to exchange services for compensation or commissions — the situation now before us — is not subject to equitable enforcement. Id. While Bowling recognized a narrow exception to the general rule, plaintiffs do not qualify for it.[3] Second, assuming arguendo the contracts did qualify for the Bowling exception, plaintiffs nonetheless would be unable to satisfy the temporary injunction standards, for they have an adequate remedy at law. See Oxford Int'l Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, 374 So.2d 54, 56 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1199 (Fla. 1980).[4] Plaintiffs contracted to render services in exchange for money, and their damages are calculable based, inter alia, on the contract amounts.[5] As there is an adequate *955 remedy at law, injunctive relief must be denied. We therefore dissolve the temporary injunction effective immediately.[6]

The trial court also erred in failing to conduct an evidentiary hearing on SeaEscape's motion to increase the injunction bond. SeaEscape was entitled to an emergency evidentiary hearing within the time set by Rule 1.610(d), Florida Rules of Civil Procedure. See Parker Tampa Two, Inc. v. Somerset Development Corp., 544 So.2d 1018, 1021 (Fla. 1989) (treating motion to modify bond as a motion to modify injunction for purposes of Rule 1.610). The court should have made time available or should have assured that an alternate judge was assigned. The amounts at issue in this litigation are substantial,[7] and a $1,500 bond was clearly inadequate.

While we reverse the orders setting the bond, the question is what remedy should be employed. If, in the present case, the injunction were to be kept in force, we would remand for an immediate evidentiary hearing. Since the injunction is being dissolved, there is no functional need for the setting of a new injunction bond. The question is how to proceed in light of the recent decision in

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Bluebook (online)
568 So. 2d 952, 1990 WL 138403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaescape-ltd-v-maximum-mktg-exposure-inc-fladistctapp-1990.