Muss v. Rosenberg

PER CURIAM. The appellee filed a matter sounding in equity seeking, among other things, to enjoin the appellant from further distribution of assets of an alleged partnership to himself or his assigns. A temporary injunction without notice and without bond was entered by the trial judge. Thereafter, the matter came on to be heard on a motion to dissolve, based principally upon the failure of the plaintiff to post an injunction bond. Following a hearing, the trial court denied the motion to dissolve and this interlocutory appeal ensued. The appellant made an application for constitutional stay writ. Following oral argument thereon, the court announced it would determine the matter on the merits pursuant to Florida Appellate Rule 4.5 g(2). The original complaint did not seek a temporary injunction without bond. There was no evidence submitted nor finding made by the trial judge that the original plaintiff did not have sufficient assets to post a bond.1 See: Fla.R.Civ.P. 1.610(b). Therefore, under a long line of authorities, the trial judge erred in refusing to dissolve the injunction. Ginsberg v. City of Daytona Beach, 103 Fla. 168, 137 So. 253 (1931); Hart v. Kapnias, 157 Fla. 846, 27 So.2d 145 (1946); Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960); Metropolitan Dade County v. Polk Pools, Inc., 124 So.2d 737 (Fla. 3d DCA 1960); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2d DCA 1965); Hoffman v. White, 235 So.2d 43 (Fla. 4th DCA 1970); Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla. 3d DCA 1972); Byrne v. Rec Centers, Inc., 309 So.2d 177 (Fla. 4th DCA 1975); La Gran Familia, Inc. v. Cuba Pharmacy, Inc., 349 So.2d 769 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So.2d 827 (Fla. 3d DCA 1977). For the reasons above stated, the order denying the motion to dissolve is reversed, with directions to dissolve the temporary injunction issued without bond. Reversed with directions. Footnotes [1] In fact, in the order denying the motion to dissolve, the trial judge initialed and crossed out the following: # sfc * * * # “ * * * the plaintiff does not have the monies available to post bond * * * ”