Salas v. Alexander , 2015 Fla. App. LEXIS 3848 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed March 18, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2925
Lower Tribunal No. 1417827
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Jesus Antonio Salas, et al.,
Appellants,
vs.
Katherine Alexander,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Mase Lara and Richard D. Lara and Cameron W. Eubanks, for appellants.
Richard C. Wolfe; Mintz Truppman and Mark Mintz, for appellee.
Before SUAREZ, SALTER, and EMAS, JJ.
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
appellee 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
appellee 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 timeframe1 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.,
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 (1931) and cases cited
therein.
2
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. 4th DCA 1993).
By giving the movant 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.
3