Berto and Batista v. Meridian Trust Company , 2017 Fla. App. LEXIS 8683 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed June 14, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-284
Lower Tribunal No. 17-1040
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Marcus Berto and Werner Batista,
Appellants,
vs.
Meridian Trust Company, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Beatrice Butchko, Judge.
Bilzin Sumberg Baena Price & Axelrod and José M. Ferrer and Yasmin
Fernandez-Acuña; Reed Smith LLP, Edward M. Mullins and Ana Maria Barton,
for appellants.
Aballí Milne Kalil, P.A., Hendrik G. Milne and Craig P. Kalil, for appellees.
Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
EMAS, J.
Appellants Marcus Berto and Werner Batista seek review of an ex parte
temporary injunction which enjoins them from removing, disposing of, dealing
with, transferring, mortgaging, hypothecating, or diminishing the value of any
assets in Florida up to the value of nearly $63 million, with certain limited
exceptions. Appellees have conceded, and we agree, that the trial court’s order
must be reversed and remanded because it is facially deficient.1
Moreover, and as to Marcus Berto and Werner Batista, we conclude that the
allegations in the ex parte motion, together with its supporting documents, are
insufficient to justify the trial court’s entry of a temporary injunction as to these
two appellants. See § 726.108(1)(c), Fla. Stat. (2017) (providing in an action for
relief under Florida’s Uniform Fraudulent Transfer Act, a creditor may obtain “an
injunction against further disposition by the debtor or a transferee, or both,” but
“subject to applicable principles of equity and in accordance with the applicable
rules of civil procedure”) (emphasis added); Stand Up for Animals, Inc. v. Monroe
Cty., 69 So. 3d 1011 (Fla. 3d DCA 2011); Buchanan v. Sullivan, 620 So. 2d 1301,
1302 (Fla. 4th DCA 1993) (noting, “[t]he fly in the ointment is that there was
absolutely no evidence actually presented to the judge establishing” the asserted
basis for injunctive relief.)
1 See Fla. R. Civ. P. 1.610(a)(2) (providing, inter alia: “Every temporary injunction
granted without notice shall. . . state findings by the court why the injury may be
irreparable, and give the reasons why the order was granted without notice if notice
was not given.”)
2
Accordingly, we reverse and remand with instructions that the trial court
vacate the ex parte temporary injunction as to appellants Marcus Berto and Werner
Batista.
3