Andrew J. Andrist and Douglas S. Stanhope v. Stephen P. Spleen , 2014 Fla. App. LEXIS 10869 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
ANDREW J. ANDRIST and DOUGLAS S. STANHOPE,
Appellants,
v.
STEPHEN P. SPLEEN,
Appellee.
No. 4D13-2818
[July 16, 2014]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562012CA004595.
Jonathan Jay Kirschner of Jonathan Jay Kirschner & Associates, LLC,
Fort Pierce, for appellants.
D. John Rhodeback of Rooney & Rooney, P.A., Vero Beach, for appellee.
MAY, J.
This case illustrates the exception to a rule. The defendants appeal an
order awarding them attorney’s fees, but limiting the amount to the $100
bond posted by the plaintiff for an ex parte temporary injunction. They
argue the trial court erred in limiting the award because they did not have
notice of the hearing at which the trial court determined the amount, and
they diligently sought relief from the injunction. We agree and reverse.
The case arose from the plaintiff’s concern that he would be defamed
by the defendants as part of their comedy act. The plaintiff filed an
emergency ex parte motion for temporary injunction without notice, as well
as a verified six-count complaint against the defendants. The complaint
alleged that the defendants were stand-up comedians who had developed
a scheme to falsely accuse the plaintiff of molesting one of them when he
was a minor.
On their Twitter and Facebook accounts, the defendants posted that
they planned to confront the plaintiff at a hotel with a camera crew, and
show the taped interview during a stand-up comedy show in West Palm
Beach. The plaintiff alleged the plan was designed to extort him and gain
notoriety for the defendants’ comedy career. The plaintiff denied the
molestation accusations.
In the emergency motion, plaintiff’s counsel certified he sent an e-mail
to one defendant inquiring about his intentions prior to the hearing, but
had not received a response. No other efforts were made to contact the
defendants. Counsel argued that no further notice should be required
because the defendants threatened to spread untrue allegations about the
plaintiff, and notice would not prevent them from disseminating that
information.
Plaintiff’s counsel informed the court that he found information,
including a podcast, on the internet. There were jokes throughout the
podcast. He argued the defendants were engaging in a shameless
promotion of their comedy tour. Because the plaintiff could not defend
himself on the internet, he had no adequate remedy at law.
Counsel suggested that a nominal bond would suffice because the
defendants would not suffer any harm or monetary loss by the injunction.
He insisted the defendants would not be able to prove any lost income. He
also argued that because the plaintiff was not a public figure, either no
bond or a nominal one should be required.
The court granted the ex parte temporary injunction without notice,
and enjoined the defendants from disclosing, disseminating, or publishing
any information regarding the plaintiff and the pending lawsuit. It also
enjoined them from threatening to disclose, disseminate, or publish the
information until the resolution of the case. The court required a $100
bond.
Nine days after its entry, the defendants filed a verified emergency
motion to dissolve the temporary injunction. The motion detailed the
plaintiff’s alleged molestation of one of the defendants, the negative long-
term effects of the molestation, and the plaintiff’s alleged admission and
apology to the defendant during the taped confrontation.
The court heard the defendants’ motion and dissolved the temporary
injunction. The defendants then filed an amended motion for an award of
damages, including attorney’s fees and costs. They argued that they were
entitled to damages exceeding the amount of the injunction bond because:
(1) the plaintiff did not seek the temporary injunction in good faith; and (2)
2
the bond was set ex parte and the defendants proceeded expeditiously to
exhaust available remedies.
A successor judge heard the amended motion for damages.1 The court
strictly construed section 60.07, Florida Statutes (2012), and awarded
only the amount of the bond. The court declined the defendants’ request
to make a factual finding that they expeditiously brought the issue to
resolution, explaining that such a finding would not change the outcome.
The court denied the defendant’s motion for clarification and for rehearing.
From the award and denial of their motions for rehearing and clarification,
the defendants now appeal.
The defendants argue that the court erred in strictly construing Rule
1.610 of the Florida Rules of Civil Procedure and section 60.07, Florida
Statutes, to limit their damages to the posted $100 bond. They argue that
this case falls within two exceptions to the general rule because the
injunction was obtained ex parte and in bad faith, and they promptly
sought to dissolve the wrongfully issued injunction. We agree and reverse.
We have de novo review of legal issues, but the amount of the attorney’s
fees award is reviewed for an abuse of discretion. Gibbs Constr. Co. v. S.
L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000).
A temporary injunction may not be entered unless a movant posts a
bond in an appropriate amount for “costs and damages sustained by the
adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P.
1.610(b). The amount of the bond constitutes the court’s determination of
the foreseeable damages. Parker Tampa Two, Inc. v. Somerset Dev. Corp.,
544 So. 2d 1018, 1021 (Fla. 1989).
Upon the dissolution of a temporary injunction, the court “may hear
evidence and assess damages to which a defendant may be entitled under
any injunction bond.” § 60.07, Fla. Stat. (2012). “It is well-established
that reasonable attorney’s fees may be recovered . . . if the injunction was
wrongfully issued, and if the attorney’s fees relate to the defeat or
dissolution of the court’s injunction.” Merrett v. Nagel, 564 So. 2d 229,
231 (Fla. 5th DCA 1990) (citing Roger Dean Chevrolet, Inc. v. Painters,
Decorators & Paperhangers of Am., Local No. 452, 155 So. 2d 422 (Fla. 2d
DCA 1963)).
1 The Honorable Dan Vaughn entered the ex parte temporary injunction and set
the bond at $100. Due to new division assignments, the Honorable Robert E.
Belanger took over Judge Vaughn’s division and heard the amended motion for
damages.
3
As a general rule, a wrongfully-enjoined party’s damages are limited to
the amount of the posted bond. Parker Tampa Two, Inc., 544 So. 2d at
1019. Courts have however allowed recovery exceeding the bond when the
injunction is sought in bad faith or when the injunction bond is set without
an evidentiary hearing on foreseeable damages. Lotenfoe v. Pahk, 747 So.
2d 422, 425 (Fla. 2d DCA 1999).
In SeaEscape, Ltd., Inc. v. Maximum Marketing Exposure, Inc., 568 So.
2d 952, 956 (Fla. 3d DCA 1990), the Third District found the defendant
entitled to damages beyond the bond amount because it acted promptly to
dissolve the wrongfully entered injunction and increase the bond. The
court reversed and remanded the case. “[W]here there has been no
opportunity for a hearing and where the enjoined party has proceeded
expeditiously to exhaust available remedies, the damages for wrongful
injunction are not limited to the bond amount.” Id. at 956.
Here, the temporary injunction and bond were obtained ex parte. Like
the defendant in SeaEscape, who promptly moved to dissolve the
injunction, the defendants expeditiously moved to dissolve the temporary
injunction within nine days of its issuance. The same result is warranted.
The defendants were not given notice of the request for a temporary
injunction, and were deprived of the opportunity to prove a higher bond
was warranted. They acted diligently in moving to dissolve the injunction
and in requesting damages, including attorney’s fees. The court erred in
limiting their damages to the bond amount.
We therefore reverse and remand the case. Because the injunction has
been dissolved, the court need only conduct an evidentiary hearing to allow
the defendants the opportunity to prove damages greater than the $100
awarded. See Lotenfoe, 747 So. 2d at 425–26 (where the injunction is
already dissolved, “there is no functional need to set a new injunction
bond.”); see also Leibowitz v. City of Miami Beach, 683 So. 2d 204 (Fla. 3d
DCA 1996) (remanding for recalculation of attorney’s fees sought after
dissolution of the injunction).
Reversed and Remanded.
DAMOORGIAN, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4