Third District Court of Appeal
State of Florida
Opinion filed February 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2109
Lower Tribunal No. 21-21329
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Seissa Belmondo,
Appellant,
vs.
Edy Amisial,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Carlos Lopez, Judge.
The Foodman Firm, P.A., and Daniel Foodman, for appellant.
Edy Amisial, in proper person.
Before MILLER, GORDO and BOKOR, JJ.
BOKOR, J.
Notwithstanding a related civil action pending in circuit court between
the parties and an action pending in circuit court, family division, appellee,
Dr. Edy Amisial, filed a stand-alone claim for defamation. Despite not
seeking injunctive relief in the complaint, Dr. Amisial filed a motion seeking
emergency temporary injunctive relief to restrain appellant, Seissa
Belmondo, from further spreading or repeating certain allegedly defamatory
statements. After an evidentiary hearing, the trial court entered an order
granting temporary injunctive relief in favor of Dr. Amisial and against
Belmondo, which Belmondo timely appeals. 1
Here, Belmondo correctly notes that “Florida's courts have long held
that temporary injunctive relief is not available to prohibit the making of
defamatory or libelous statements.” Vrasic v. Leibel,
106 So. 3d 485, 486
(Fla. 4th DCA 2013). The remedy for defamatory statements lies in an action
at law for damages.
Id. A limited exception exists where “the defamatory
words were made in the furtherance of the commission of another tort . . .
[and] . . . where the party demonstrates a special harm.”
Id. at 487. In the
instant case, a review of the record, including the transcript of the hearing
1
We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(B). We review the factual
findings under a competent, substantial evidence standard and the legal
basis for the issuance of an injunction under a de novo standard. Telemundo
Media, LLC. v. Mintz,
194 So. 3d 434, 435–36 (Fla. 3d DCA 2016).
2
before the trial judge, reveals no such finding of special harm, nor a basis
upon which such a finding could be made. At best, the record contains an
affidavit with a conclusory statement regarding the impact of the statements.
However, even ignoring the fundamental flaw of the complaint, which alleges
no separate tort upon which special damages could be based, the
conclusory allegation contained in the affidavit, without more, cannot form
the basis for special damages. Accordingly, absent a separate tort and a
finding of special harm supported by competent, substantial evidence, the
injunction on review constitutes an impermissible prior restraint on speech. 2
2
We also note that the appeal raises other, significant issues besides the
prior restraint without an appropriate exception. Here,
[t]he temporary injunction . . . lacks the necessary findings in
support of the four-prong test set out in [Cosmic Corp. v. Miami-
Dade County,
706 So. 2d 347, 348 (Fla. 3d DCA 1998)] and is
inconsistent with the requirements of rule 1.610. A temporary
injunction that merely recites legal conclusions is insufficient to
support its entry.
Angelino v. Santa Barbara Enters., LLC,
2 So. 3d 1100, 1103 (Fla. 3d DCA
2009). Entry of a temporary injunction requires a showing of (1) a likelihood
of irreparable harm and the unavailability of an adequate remedy at law; (2)
a substantial likelihood of success on the merits; (3) a threatened injury to
the petitioner that outweighs any possible harm to the respondent; and (4)
that the entry of the injunction will not disserve the public interest.
Id. The
injunction must contain “[c]lear, definite, and unequivocally sufficient factual
findings” as to each element.
Id. (citations omitted). Here, the order on
review does not—and, based on the record, cannot—contain the requisite
findings. As noted by Belmondo, the record contains no affirmative
statement, under oath, by the party seeking the injunction that the claimed
statements were false or that actual damages resulted from the defamatory
comments. See Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1106 (Fla.
3
We therefore vacate the injunction, and reverse and remand with instructions
to deny the temporary injunction.
Reversed and remanded with instructions.
2008) (noting, inter alia, that a defamatory statement must be false and result
in actual damages). We decline to review the procedural or due process
issues raised because we dispose of the matter on other grounds.
4
