Planned Parenthood of Greater Orlando, Inc., etc. v. MMB Properties, etc.

Supreme Court of Florida
____________
No. SC15-1655
____________
PLANNED PARENTHOOD OF GREATER ORLANDO, INC., etc.,
Petitioner,
vs.
MMB PROPERTIES, etc.,
Respondent.
[February 23, 2017]
PARIENTE, J.
The conflict issue presented in this case involves the standard for modifying
or dissolving a temporary injunction. The Fifth District Court of Appeal
“acknowledge[d] conflict with the Third and Fourth District[s]” as to whether a
party moving to modify or dissolve a temporary injunction must establish
“changed circumstances.” Planned Parenthood of Greater Orlando v. MMB
Properties, 171 So. 3d 125, 128 & n.3 (Fla. 5th DCA 2015).1 We conclude that
requiring a party to meet the burden of proving changed circumstances even when
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
a party shows clear misapprehension of the facts or clear legal error is
incompatible with the equity principles underlying injunctive relief and hold that a
trial court abuses its discretion in not modifying or dissolving a temporary
injunction in such an instance, regardless of whether the movant shows changed
circumstances.
After resolving the conflict issue, we also review the temporary injunction
entered by the trial court in this case and conclude that the order enjoining Planned
Parenthood of Greater Orlando (“Planned Parenthood”) from performing certain
activities was not based on competent, substantial evidence. Accordingly, we
quash the Fifth District’s decision below to the extent it affirmed the trial court’s
temporary injunction. See Planned Parenthood of Greater Orlando, 171 So. 3d at
130-31.
FACTS AND BACKGROUND
Oak Commons is a medical complex consisting of approximately eleven
acres located near the Osceola Regional Medical Center. In 1986, the developer of
Oak Commons executed a Declaration of Restrictions (“the Declaration”) that was
duly recorded and expressly ran with the land. The Declaration covenanted the
following:
The property described herein shall not be used for the following
activities without the prior written permission of [the developer],
which shall be granted only in its sole and unfettered discretion,
unless ancillary and incidental to a physician’s practice of medicine:
-2-
1. An Outpatient Surgical Center
2. An emergency medical center.
3. A Diagnostic Imaging Center which includes the following
radiographic testing: Fluroscopy [sic], Plane Film Radiography,
Computerized Tomography (CT), Ultrasound, Radiation Therapy,
Mamography [sic] and Breast Diagnostics, Nuclear Medicine Testing
and Magnetic Resonance Imaging (MRI).
Planned Parenthood purchased the property located at 610 Oak Commons
Boulevard (“Kissimmee Health Center”) in December 2013. Respondent, MMB
Properties, is a general partnership that has operated a cardiology practice in Oak
Commons since 1996. In June 2014, approximately one month before Planned
Parenthood opened the Kissimmee Health Center, MMB Properties filed a single-
count complaint alleging that Planned Parenthood’s use of the property violated the
Declaration. The complaint sought a permanent injunction preventing Planned
Parenthood from performing outpatient surgical procedures, which MMB
Properties alleged included abortions, and from providing emergency medical
services, which allegedly included the provision of the “Morning After Pill.” The
complaint was supported by an affidavit of Dr. John Massey, a cardiologist and
one of the general partners of MMB Properties, as well as a zoning verification
letter that Planned Parenthood sent to the City of Kissimmee inquiring whether it
could operate an “Out Patient Surgical Center” at the Kissimmee Health Center
and an application Planned Parenthood submitted to the Florida Agency for Health
Care Administration to operate an abortion clinic.
-3-
Soon after MMB Properties filed the complaint, MMB Properties moved to
temporarily enjoin Planned Parenthood from “performing abortions, providing
outpatient surgical services, or providing emergency medical services, including
emergency contraception (including administering the ‘Morning After Pill’), until
this lawsuit is fully resolved on the merits.”2 Planned Parenthood filed its answer,
affirmative defenses, and a memoranda of law in opposition to the complaint and
MMB Properties’ temporary injunction motion, along with an affidavit of its then-
CEO, Jenna Tosh. Two business days after Planned Parenthood opened the
Kissimmee Health Center to the public, the trial court held a hearing on MMB
Properties’ motion for a temporary injunction. At the hearing, Ms. Tosh and
Martha Haynie, a board member and the treasurer of Planned Parenthood, testified
on Planned Parenthood’s behalf. Dr. Massey and Dr. Jose Fernandez, a family
physician who actively opposes abortions, testified on behalf of MMB Properties.
Ms. Tosh testified that Planned Parenthood was a nonprofit organization that
intended to perform surgical abortions at its then recently opened Kissimmee
Health Center. Ms. Tosh further testified that abortions represent less than one
2. The temporary injunction motion was also supported by an affidavit of
Dr. Massey, who averred that the performance of abortions at the Kissimmee
Health Center was “obnoxious and out of harmony with the rest of the offices in
Oak Commons Medical Park.” However, the trial court did not grant the
temporary injunction on this basis.
-4-
percent of the total number of services Planned Parenthood provides and do not
constitute a significant portion of the services Planned Parenthood intended to
provide at the Kissimmee Health Center. Rather, Ms. Tosh testified that Planned
Parenthood provides all FDA-approved methods of contraception, breast and
cervical cancer screenings, and a “whole scope of primary preventative care for
women.” Ms. Tosh further testified that all of its services, including surgical
abortions, could be performed in its building without having a surgical suite.
Testimony during the hearing also adduced that Planned Parenthood
employed a salaried medical director, Dr. Merri Morris, a board-certified
obstetrician and gynecologist (“OBGYN”), as well as four other licensed
physicians who were independent contractors. Ms. Tosh testified that Dr. Morris
would soon begin working exclusively for the Kissimmee Health Center. Ms.
Tosh also testified that while surgical abortions were routinely referred to as
surgery, she did “not agree that surgical abortions entails what is usually thought of
as surgery.” Additionally, Ms. Tosh testified that Planned Parenthood was
independent of the national organization, Planned Parenthood Federation of
America.
Ms. Haynie testified that, as treasurer of Planned Parenthood, she was
familiar with the costs that the organization incurred in establishing the Kissimmee
Health Center. Specifically, Ms. Haynie testified that if Planned Parenthood were
-5-
required to move its operations from the Kissimmee Health Center to another
location, that process would take approximately eighteen months and cost Planned
Parenthood slightly over $700,000 in lost revenue.
Dr. Massey testified that abortion is a surgical procedure and that the
Declaration’s restrictive covenants applied equally to his practice as it did to
Planned Parenthood’s. For instance, Dr. Massey testified that his practice could
not conduct cardiac catheterizations because they are considered a surgical
procedure. Dr. Fernandez testified that surgical abortions are surgical procedures
because they involve “instrumentation, a woman usually under some form of
anesthesia, and the extraction of bodily fluid and tissues.” Approximately one
week after the hearing, the trial court granted MMB Properties’ motion for a
temporary injunction, finding that MMB Properties had a substantial likelihood of
showing that performing surgical abortions would violate the Declaration and that
such procedures are not incidental to a physician’s practice of medicine.
Additionally, the trial court enjoined Planned Parenthood from providing
sonographic or other diagnostic imaging services such as ultrasounds.
Post-Temporary Injunction Motion and Supporting Affidavits
Five days later, Planned Parenthood filed a “Motion to Reconsider, Dissolve,
or Modify Order Granting Motion for Temporary Injunction” in the trial court
(“motion to modify or dissolve”). The motion alleged that the temporary
-6-
injunction was “based on an erroneous reading of the Declaration, and includes
several additional errors of law and fact.” The motion specifically requested
modification of the temporary injunction order “to provide sonograms or other
diagnostic imaging services as Plaintiff MMB [Properties] never sought any relief
precluding rendition of those services, either in its Complaint or in Plaintiff’s
Motion for Temporary Injunction.” The motion did not acknowledge any change
in the underlying facts or law from when the temporary injunction was entered, but
argued that the trial court misapprehended the facts as presented to the court during
the evidentiary hearing. The motion also sought clarification of what procedures
were enjoined by the temporary injunction in addition to prohibiting performing
surgical abortions and sonographic or other diagnostic imaging services.
In support of its motion, Planned Parenthood submitted a supplemental
affidavit of Ms. Tosh and affidavits of three additional individuals involved with
the planning and construction of the Kissimmee Health Center.3 In response,
MMB Properties argued that the motion simply “rehashe[d] testimony already
considered” and failed to show a change in facts or circumstances. The trial court
3. The following individuals submitted affidavits: Thomas R. Harbert, the
attorney whose firm represented Planned Parenthood in connection with its
acquisition of the Kissimmee Health Center; Matthew Harkins, a licensed general
contractor who oversaw the planning and renovation of the Kissimmee Health
Center; and Dr. Merri Morris, who has been the medical director of Planned
Parenthood since September 2012.
-7-
summarily denied Planned Parenthood’s motion to modify or dissolve the
temporary injunction without explanation and without holding a hearing.
The Fifth District Stay Panel Opinion
Planned Parenthood appealed the temporary injunction and the denial of its
motion to modify or dissolve the temporary injunction to the Fifth District.
Planned Parenthood also filed an emergency motion seeking to stay the temporary
injunction pending the Fifth District’s opinion on the appeal. The Fifth District
stay panel,4 in considering the evidence before the trial court at the time of the
temporary injunction order as well as the supplemental affidavits, concluded that
“the trial court erred as a matter of law when it enjoined Planned Parenthood from
providing sonographic and other diagnostic imaging services because MMB never
requested this relief in its pleadings or in its motion for temporary injunction.”
Planned Parenthood of Greater Orlando. v. MMB Properties, 148 So. 3d 810, 812
(Fla. 5th DCA 2014). The stay panel also concluded:
Planned Parenthood is likely to succeed on the merits regarding
the portion of the injunction that prevents it from providing surgical
procedures. The Declaration of Rights allows surgery to occur in the
Oak Commons Medical Center so long as it is “ancillary and
incidental to a physician’s practice of medicine.” The trial court
found that Planned Parenthood is not a “physician’s practice” because
it is a § 501(c)(3) tax-exempt nonprofit organization. Simply because
an organization chooses to obtain nonprofit status does not mean that
it is not a physician’s practice. The trial court’s other findings with
4. The stay panel consisted of Judges Evander, Cohen, and Lambert.
-8-
respect to this issue are similarly unsupported by the record. When
examining the record as a whole, including the affidavits Planned
Parenthood filed in support of its motion for rehearing, there is a
likelihood that Planned Parenthood will prevail on appeal, either
because it is not an Outpatient Surgical Center or, even if it is, the
surgeries it performs are ancillary to a “physician’s practice.”
Id. Lastly, the stay panel noted that “Planned Parenthood has sufficiently proved
that it will suffer harm absent a stay.” Id.
The Fifth District Merits Panel Opinion
On appeal, a different panel of the Fifth District reversed the stay panel,
holding that the stay panel should not have considered the affidavits filed in
connection with the motion to modify or dissolve the temporary injunction.5
Planned Parenthood, 171 So. 3d at 128. The Fifth District, addressing the trial
court’s denial of Planned Parenthood’s motion to modify or dissolve the temporary
injunction, stated that Planned Parenthood “needed to establish changed
circumstances which it did not do,” and acknowledged conflict with the Third and
Fourth District Courts of Appeal. Id. at 128 & n.3 (citation omitted).
Addressing the merits of the temporary injunction order, the Fifth District
construed the Declaration de novo and concluded that the restrictive covenant at
issue “prohibits the property from being used as an outpatient surgical center, the
5. The merits panel consisted of Judges Lawson, Palmer, and Evander.
Judge Evander concurred in part and dissented part.
-9-
common and ordinary meaning of which is a facility or place for, or for the
purpose of, performing outpatient surgical procedures.” Id. at 130. Based on this
construction, the Fifth District concluded that the trial court’s factual findings were
supported by competent, substantial evidence, including its finding that Planned
Parenthood’s “performance of abortions was not ancillary or incidental” to Planned
Parenthood’s physician’s practice of medicine. Id. Accordingly, the Fifth District
affirmed in part the temporary injunction enjoining Planned Parenthood from
performing abortions at the Kissimmee Health Center. Judge Evander, who sat on
both panels, contested the conclusion, based on the limited evidence before the
temporary injunction hearing, “that MMB met its burden of showing a substantial
likelihood of success on the merits.” Id. at 133 (Evander, J., concurring in part,
dissenting in part).
Planned Parenthood sought discretionary jurisdiction in this Court based on
the acknowledged conflict regarding the changed circumstances requirement and
moved the Fifth District to stay issuance of the mandate. After the Fifth District
denied the motion, Planned Parenthood moved this Court to review the denial. We
granted jurisdiction and stayed the proceedings below pending disposition of this
case.
- 10 -
ANALYSIS
I. The Changed Circumstances Requirement when Moving to Modify or
Dissolve a Temporary Injunction
As this Court acknowledged long ago, the purpose of a temporary injunction
is to preserve the status quo while final injunctive relief is sought. See Sullivan v.
Moreno, 19 Fla. 200, 215 (1882); see also Grant v. Robert Half Intern., Inc., 597
So. 2d 801, 801-02 (Fla. 3d DCA 1992) (“The purpose of a temporary injunction is
not to resolve a dispute on the merits, but rather to preserve the status quo until the
final hearing when full relief may be granted.”). A temporary injunction is
provisional by nature. Thus, once a temporary injunction order is entered and
pending a trial on the final injunctive relief sought, a party may seek to modify or
dissolve the temporary injunction pursuant to Florida Rule of Civil Procedure
1.610(d), which provides:
A party against whom a temporary injunction has been granted may
move to dissolve or modify it at any time. If a party moves to
dissolve or modify, the motion shall be heard within 5 days after the
movant applies for a hearing on the motion.
The party moving to dissolve or modify a temporary injunction entered after
notice and a hearing bears the burden of proof. See Orlando Orange Groves Co. v.
Hale, 144 So. 674, 676 (Fla. 1932). The Florida Rules of Civil Procedure,
however, do not specify that the party carrying the burden must demonstrate
“changed circumstances” or “changed conditions” when moving to dissolve or
- 11 -
modify a temporary injunction pursuant to rule 1.610(d). Despite the absence of
such a requirement in the Florida Rules of Civil Procedure, the First, Second,
Third, and Fifth District Courts of Appeal all require such a threshold showing.
See Brock v. Brock, 667 So. 2d 310, 311-12 (Fla. 1st DCA 1995); Hunter v.
Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA 1997); Fong v.
Courvoisier Courts Condo. Ass’n, Inc., 81 So. 3d 562, 563 (Fla. 3d DCA 2012);
Highway 46 Holdings, LLC v. Myers, 114 So. 3d 215, 221 (Fla. 5th DCA 2012).
The Fourth District, however, has rejected this rigid application of the
changed circumstances rule. See Minty v. Meister Fin. Grp., Inc., 132 So. 3d 373,
376 (Fla. 4th DCA 2014); Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d
744, 745 (Fla. 4th DCA 1999). As the Fourth District explained in Precision Tune
Auto Care, Inc.:
We do not agree . . . that a trial court cannot grant a motion to
dissolve a temporary injunction where the arguments or evidence in
support of the motion to dissolve could have been raised at the hearing
on the temporary injunction. Such a bright line rule would, in our
opinion, be inconsistent with two well-established principles. First,
the “granting and continuing of injunctions rests in the sound
discretion of the Court, dependent upon surrounding
circumstances.” Davis v. Wilson, 190 So. 716, 718 (Fla. 1939) and
cases cited. Second, a trial court has the inherent authority to
reconsider a non-final order and modify or retract it. Hunter v.
Dennies Contracting Co., 693 So. 2d 615 (Fla. 2d DCA 1997). See
also N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962).
We conclude that a trial court’s decision as to whether to
reconsider, on a motion to dissolve, a temporary injunction entered
after notice and a hearing, is discretionary, regardless of whether the
arguments or evidence could have been brought to the attention of the
- 12 -
court at the hearing on the injunction. Although the opinion in Hunter
observed that it was incumbent on the party moving to dissolve the
temporary injunction to demonstrate a change of circumstance, the
court also recognized that the trial court’s decision not to reconsider
was discretionary.
731 So. 2d at 745-46 (footnote omitted). Thus, as the Fourth District recognized,
establishing changed circumstances as a threshold requirement before a trial court
may modify or dissolve a temporary injunction is at odds with this Court’s
longstanding maxim that “[w]ide judicial discretion rests in the court in the
granting, denying, dissolving, or modifying injunctions.” Shaw v. Palmer, 44 So.
953, 954 (Fla. 1907).
A temporary injunction is an equitable remedy. As we have explained, “a
court of equity is a court of conscience; it ‘should not be shackled by rigid rules of
procedure and thereby preclude justice being administered according to good
conscience.’ ” Wicker v. Bd. of Pub. Instr. of Dade Cty., 106 So. 2d 550, 558 (Fla.
1958) (quoting Degge v. First State Bank of Eustis, 199 So. 564, 565 (Fla. 1941)).
Also “[i]nherent in equity jurisprudence is the doctrine that equity will always
move to prevent an injustice engendered by fraud, accident or mistake.” Hedges v.
Lysek, 84 So. 2d 28, 31 (Fla. 1955). Because “[a] motion to dissolve an injunction
involves the sufficiency of the equities of the complaint to justify the injunction in
the first instance . . . if it appears that the injunction should not have been granted,
it should be dissolved.” Coastal Unilube, Inc. v. Smith, 598 So. 2d 200, 201 (Fla.
- 13 -
4th DCA 1992). Thus, requiring a threshold showing of changed circumstances
when moving to modify or dissolve a temporary injunction is incompatible with
equity principles when a party shows clear misapprehension of the facts or clear
legal error on the part of the trial court in entering the temporary injunction.
In this case, the temporary injunction order granted relief that was never
sought or tried, was vague in its description of the activity enjoined, Planned
Parenthood, 171 So. 3d at 127, and, as Planned Parenthood’s motion to modify or
dissolve alleged, was based on erroneous factual findings. In short, the temporary
injunction in this case frustrated the status quo, rather than preserved it, and denial
of the motion to modify or dissolve the temporary injunction necessarily thwarted
the preservation of the status quo. Accordingly, we hold, just as a trial court’s
denial of a motion to modify or dissolve a temporary injunction when changed
circumstances is shown is an abuse of discretion, denial of a motion to modify or
dissolve is also an abuse of discretion where a party can demonstrate clear legal
error or misapprehension of facts on the part of the trial court. Therefore, we reject
the bright line changed circumstances rule for modifying or dissolving a temporary
injunction as articulated by the First, Second, Third, and Fifth Districts.
II. The Temporary Injunction Order
Planned Parenthood next requests this Court’s review of the Fifth District’s
decision affirming in part the trial court’s temporary injunction order in this case.
- 14 -
“Although this issue was not the basis of conflict jurisdiction, once the Court
grants jurisdiction, it may, in its discretion, address other issues properly raised and
argued before the Court.” State v. T.G., 800 So. 2d 204, 210 n.4 (Fla. 2001).
Mindful that the temporary injunction proceeding in this case has spanned more
than two years, and in order to bring judicial resolution of this protracted
temporary injunction proceeding, we exercise our discretion to consider whether
the Fifth District erred in affirming in part the trial court’s order temporarily
enjoining Planned Parenthood from performing abortions at its Kissimmee Health
Center, an issue that the parties have raised and extensively argued before this
Court.
While this Court must accept a trial court’s findings of fact if supported by
competent, substantial evidence, we may nevertheless review the Fifth District’s
review of those legal conclusions de novo and review the Fifth District’s
conclusions regarding the legal sufficiency of the evidence supporting the trial
court’s factual findings. See Naegle Outdoor Advert. Co. v. City of Jacksonville,
659 So. 2d 1046, 1046-47 (Fla. 1995). Although a trial court has wide discretion
in reviewing a temporary injunction, the trial court’s factual determinations must
be supported by competent, substantial evidence. Concerned Citizens for Judicial
Fairness v. Yacucci, 162 So. 3d 68, 72 (Fla. 4th DCA 2014).
- 15 -
Our review of the temporary injunction order, however, does not take into
consideration the supplemental affidavits Planned Parenthood submitted to the trial
court in support of its motion to dissolve or modify the temporary injunction.
Rather, we consider only the evidence before the trial court at the time it entered its
temporary injunction order.
Trial Court’s Factual Findings Supporting Temporary Injunction
The temporary injunction at issue concerns the enforcement of the
Declaration. The Declaration states:
The property described herein shall not be used for the following
activities without the prior written permission of [the developer],
which shall be granted only in its sole and unfettered discretion,
unless ancillary and incidental to a physician’s practice of medicine:
1. An Outpatient Surgical Center.
2. An emergency medical center.
3. A Diagnostic Imaging Center which includes the following
radiographic testing: Fluroscopy [sic], Plane Film Radiography,
Computerized Tomography (CT), Ultrasound, Radiation Therapy,
Mamography [sic] and Breast Diagnostics, Nuclear Medicine Testing
and Magnetic Resonance Imaging (MRI).
(Emphasis added.) None of the terms in the Declaration are defined. At the outset,
we agree with the Fifth District’s interpretation of the Declaration as “prohibit[ing]
the property from being used as an outpatient surgical center,” which “is a facility
or place for, or for the purpose of, performing outpatient surgical procedures.”
Planned Parenthood, 171 So. 3d at 130. Therefore, we are left to determine
whether Planned Parenthood may perform surgical abortions under the
- 16 -
Declaration’s exception, which provides that outpatient surgical procedures may be
performed so long as they are “ancillary and incidental to a physician’s practice of
medicine.”
The trial court concluded that Planned Parenthood “is not a ‘physician’s
practice’ as that term is defined in the Declaration[],” and, therefore, the
Declaration’s exception for uses that are “ancillary and incidental to a physician’s
practice of medicine,” did not apply. This conclusion was based on the trial
court’s findings that Planned Parenthood is a 501(c)(3) tax-exempt nonprofit
organization and “many of [Planned Parenthood’s] services fall well beyond the
traditional ambit of a ‘physician’s practice of medicine,’ ” because Planned
Parenthood “is heavily involved with various educational, advocacy, and
community outreach activities in furtherance of its mission as a nonprofit
corporation.”
Planned Parenthood correctly notes, however, that the Declaration does not
define “physician’s practice.” Further, the record does not reveal any testimony or
other evidence that could support the trial court’s finding that Planned Parenthood
“is heavily involved with various educational, advocacy, and community outreach
activities in furtherance of its mission as a nonprofit corporation.” In fact, Planned
Parenthood’s CEO, Ms. Tosh, testified that Planned Parenthood was not involved
with educational, advocacy, and community outreach activities:
- 17 -
Planned Parenthood of Greater Orlando is an independent non-profit
organization with our own staff and our own—we carry an
independent budget. And Planned Parenthood Federation of America
is the national arm. There are 68 Planned Parenthood affiliates in the
United States that voluntarily affiliate with Planned Parenthood
Federation of America. Planned Parenthood Federation is also our
accrediting agency and provides guidance and consultation on a wide
range of issues for affiliates.
The trial court also concluded that Planned Parenthood could not be a
“physician’s practice” because Planned Parenthood “just recently hired a physician
as a medical director. The medical director currently works one day a week in
Jacksonville for another affiliate of Planned Parenthood Federation of America and
spends some time each week at [Planned Parenthood’s] other two Orlando-area
locations.” However, Ms. Tosh testified at the initial temporary injunction hearing
that Planned Parenthood employed a medical doctor, who Planned Parenthood had
“access to . . . at all times.”
Accordingly, the trial court’s finding that Planned Parenthood is not a
“physician’s practice” is unsupported by competent, substantial evidence. The trial
court concluded, however, that even if Planned Parenthood could be considered a
“physician’s practice,” its “intended violative uses are neither ‘ancillary’ nor
‘incidental’ sufficient to bring them within the exception,” because Planned
Parenthood’s witnesses, Ms. Tosh and Ms. Haynie, testified that abortions were a
“substantial” and “central” Planned Parenthood service.
- 18 -
The trial court acknowledged that Ms. Tosh asserted in her affidavit that
“surgical abortions are expected to comprise less than 1% of [Planned
Parenthood’s] services,” but found “this asserted statistic is offered out of context
in light of the totality of the evidence.” This finding is also unsupported by
competent, substantial evidence. There was no evidence before the trial court prior
to its entry of the temporary injunction regarding the number of surgical abortions
likely to be performed, except for Ms. Tosh’s statement that the number of surgical
abortions performed would likely constitute approximately one percent of Planned
Parenthood’s activities and “would also likely constitute a very small percentage of
the total services provided at the Kissimmee Health Center.” Indeed, cross-
examination of Ms. Tosh during the temporary injunction hearing reveals the
same:
Q. Where—at the very bottom, you—you affirm under oath that
abortions represent less than 1 percent of the total number of services
that Planned Parenthood provides; is that right?
A. That’s correct.
Q. So is it fair to say, given that it is such a nominal percentage of
total services, that if the Court were to say, “Maintain the status quo.
Don’t start doing abortions until the Court has the chance to have a
full hearing on this matter,” that Planned Parenthood would not be—
its practice, its operation would not be harmed or disrupted? That’s
true, isn’t it?
A. No, it’s not true.
- 19 -
Q. So 1 percent constitutes a significant portion of what Planned
Parenthood plans to do? No pun intended.
A. We believe in providing reproductive healthcare to our patients.
And so any interference in our ability to comprehensively care for our
patients would be a substantial burden on our practice.
Further, Ms. Haynie’s testimony during the temporary injunction hearing
cannot also be construed to support the trial court’s factual finding that performing
surgical abortions is “central” to Planned Parenthood’s physician’s practice, but
rather central to Planned Parenthood’s revenue because revenue from other
medical services could be attributable to the performance of surgical abortions:
Q. Ms. Haynie, breaking out the abortions is a—is a false premise, is
that correct, because the abortions are central to the rest of the practice
that you perform—or that Planned Parenthood of Greater Orlando
performs in its facility?
A. That’s correct.
Q. In other words, patients that come in for abortions lots of times
come back in for lots of other female gynecological services; is that
correct?
A. Yes.
Q. And if you don’t perform abortions, then those patients never
come in?
A. That’s correct.
Q. And likewise with patients that you’re providing gynecological
services for, if you don’t provide abortion services and they have need
for abortion services, they’re more likely to go someplace else, and
that revenue would be lost, correct?
- 20 -
A. That’s correct.
Q. So is that the reason that you find it difficult to break out revenues
for abortion services specifically?
A. I don’t think that would be a relevant number.
Neither Ms. Haynie’s nor Ms. Tosh’s testimony, then, support the trial
court’s finding that abortions are not ancillary and incidental to Planned
Parenthood’s physician’s practice of medicine. At best, the testimony relates only
to how the performance of surgical abortions affects Planned Parenthood’s
revenue, not whether the actual performance of surgical abortions was central or an
otherwise substantial component of its physician’s practice. Accordingly, the trial
court’s conclusion that abortions would be “substantial” and “central” to Planned
Parenthood’s physician practice is simply not supported by competent, substantial
evidence in the record.
Regardless of the testimonial supplemental affidavits, we conclude that the
trial court erred in granting the temporary injunction because the trial court’s
conclusions supporting its entry of a temporary injunction order were not based on
competent, substantial evidence. Indeed, the trial court’s temporary injunction
order at times completely misstated facts adduced during the temporary injunction
hearing and, at other times, based factual and legal conclusions on facts not
appearing in the record at all, including: Planned Parenthood engaged in advocacy
and outreach activities, when testimony adduced at trial indicated that it was
- 21 -
actually the national organization, Planned Parenthood Federation of America, that
engaged in these activities; Planned Parenthood recently hired a medical director
when it in fact already employed a medical doctor; and that performing abortions
would be substantial and central to Planned Parenthood’s physician practice when
testimony adduced at trial confirmed that the performance of abortions would
represent less than one percent of the total number of services Planned Parenthood
provides. In addition, as the Fifth District correctly noted, the trial court granted
relief that was not requested by “temporarily enjoining Planned Parenthood from
performing sonograms.” Planned Parenthood, 171 So. 3d at 127.
Because there is a lack of competent, substantial evidence to support the trial
court’s factual findings and resulting conclusion that MMB Properties was likely to
succeed on the merits in the final injunction proceeding, the Fifth District erred in
affirming the trial court’s conclusion as to this temporary injunction prong.
Because the party seeking a temporary injunction must establish that the party has
demonstrated a substantial likelihood of success on the merits, and because this
prong was not established, this error alone requires that the temporary injunction
order be vacated. See Provident Mgmt. Corp. v. City of Treasure Island, 796 So.
2d 481, 485 n.9 (Fla. 2001) (noting the conjunctive elements of a temporary
injunction).
- 22 -
CONCLUSION
Accordingly, we quash in part the Fifth District’s decision below that
affirmed the trial court’s order temporarily enjoining Planned Parenthood from
performing abortions at the Kissimmee Health Center and its conclusion that
Planned Parenthood “needed to establish changed circumstances” in its motion to
modify or dissolve the temporary injunction. Planned Parenthood, 171 So. 3d at
128. Because the stay of the temporary injunction has been in effect since the Fifth
District issued the stay at the outset of the litigation, the parties will have
substantial additional evidence regarding Planned Parenthood’s activities and
whether they, in fact, violate the Declaration. We remand this case to the Fifth
District with instructions that it be further remanded to the trial court to conduct
permanent injunction proceedings.
It is so ordered.
LABARGA, C.J., and LEWIS, and QUINCE, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
LAWSON, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
“[T]he acknowledged conflict,” majority op. at 10, on which the majority
bases the exercise of express-and-direct-conflict jurisdiction concerns a question—
whether the dissolution or modification of a temporary injunction requires a
- 23 -
showing of changed circumstances—that was not presented to the Fifth District for
decision and which the district court therefore necessarily did not decide. The
district court’s opinion makes this unmistakably clear: “In its initial brief, Planned
Parenthood does not challenge the denial of its motion to dissolve or modify the
injunction, much less argue that it established changed circumstances.” Planned
Parenthood of Greater Orlando v. MMB Properties, 171 So. 3d 125, 128 (Fla. 5th
DCA 2015). The opinion repeats the point: “None of Planned Parenthood’s
appellate arguments . . . relate to” the order that “denied the motion to dissolve or
modify the injunction.” Id. at 127 n.1.
The court makes a passing reference to the existing conflict of the Fifth
District’s case law with other districts concerning whether changed circumstances
must be shown to justify modifying or dissolving a temporary injunction. Id. at
128 & n.3. But that passing reference to a conflict on an issue that was neither
presented for review nor decided by the district court is not a proper basis for the
exercise of conflict jurisdiction. What the district court said on this issue had no
bearing on the resolution of the case and thus does not constitute a holding. Such
dicta cannot properly serve as the basis for concluding that the decision is in
express and direct conflict with another decision.
I therefore dissent. The case should be discharged.
POLSTON, J., concurs.
- 24 -
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fifth District - Case No. 5D14-2920
(Osceola County)
Donald Edward Christopher and Kyle A. Diamantas of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, Orlando, Florida,
for Petitioner
Jamie Billotte Moses of Holland & Knight LLP, Orlando, Florida; Derek James
Angell and Dennis Richard O’Connor of O’Connor & O’Connor, LLC, Winter
Park, Florida; and Maureen Ann Arago and Keith Patrick Arago of Arago Law
Firm, Kissimmee, Florida,
for Respondent
Helene T. Krasnoff of Planned Parenthood Federation of America, Washington,
District of Columbia, and Maithreyi Ratakonda of Planned Parenthood Federation
of America, New York, New York,
for Amicus Planned Parenthood Federation of America
- 25 -