BAUTISTA REO U.S., LLC v. ARR INVESTMENTS, INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BAUTISTA REO U.S., LLC, a Delaware limited liability company,
Appellant,
v.
ARR INVESTMENTS, INC., a Florida corporation,
Appellee.
No. 4D16-3658
[July 19, 2017]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara McCarthy, Judge; L.T. Case No.
CACE-16-017788 (21).
Denise Dell-Powell and Christopher R. Thompson of Burr & Forman,
LLP, Orlando, for appellant.
Andrew C. Hill and John W. Zielinski of NeJame Law, P.A., Orlando, for
appellee.
PER CURIAM.
Bautista REO U.S., LLC (“Bautista REO”), appeals a non-final order
granting ARR Investment, Inc.’s (“ARR”) motion for temporary injunction.
Because ARR failed to establish irreparable harm with no adequate remedy
at law, we reverse.
Factual Background
ARR is the owner and holding company of five daycare facilities in
Florida. In April of 2003, ARR and Doral Bank, predecessor in interest to
Bautista REO, entered into a loan transaction for $1,550,000. As evidence
of the loan, ARR and Doral Bank executed a Loan and Security Agreement.
Pursuant to the Loan and Security Agreement, and as security for the loan,
ARR granted Doral Bank two mortgages: one mortgage on two parcels of
ARR’s real property in Broward County (the “first mortgage”), and a
collateral mortgage on real property in Pembroke Pines (the “collateral
mortgage”). The Loan and Security Agreement provided that the collateral
mortgage would secure a $250,000 demand note, plus 7.65% interest,
executed by ARR. All of the notes and mortgages were executed on the
same day as part of one transaction. The collateral mortgage is the subject
of the underlying litigation.
In 2011, ARR refinanced the loan documents with City National Bank
of Florida (“City National”). ARR then defaulted on its payment obligations
under the loan documents. City National filed a foreclosure complaint
seeking to foreclose on its first mortgage interest in the Pembroke Pines
property. In the complaint, City National named both ARR and Bautista
REO as defendants with an interest in the property.
In order to pay off City National and avoid foreclosure, ARR entered into
a purchase and sale agreement to sell the Pembroke Pines property to a
third party. After several extensions, the closing was scheduled to occur
on October 31, 2016. In the course of the transaction, a title search
revealed that Doral Bank never released the collateral mortgage, as ARR
claims it should have in the course of the 2011 refinance. Instead, the
collateral mortgage was assigned to Bautista REO, along with the
$1,550,000 loan.
In September of 2016, ARR requested that Bautista REO provide an
estoppel letter identifying the amount of indebtedness due under the
collateral mortgage. Bautista REO, through Capital Crossing Servicing,
Inc., the servicer for the loan, provided ARR with an estoppel letter which
provided a total payoff amount of $478,534.72.
Subsequently, ARR filed a verified four-count complaint against
Bautista REO alleging: (1) violation of section 701.04(1), Florida Statutes
(2016); (2) interference with a contractual relationship, including a request
for injunctive relief to enjoin Bautista REO from interfering with ARR’s
purchase and sale contract for the subject property and to compel Bautista
REO to issue an estoppel letter in the amount of $250,000; (3) an action
for declaratory judgment to determine whether the collateral note and
collateral mortgage entitle Bautista REO to recover any amounts over
$250,000 (interest, fees, costs); and (4) an action for Bautista REO’s
violations of Florida usury laws under sections 687.04 and 687.071,
Florida Statutes (2016).
That same day, ARR sought a temporary injunction enjoining Bautista
REO from continuing to violate sections 687.04, 687.071, and 701.04,
Florida Statutes, and from tortiously interfering in the real estate sales
contract regarding the Pembroke Pines property, and requiring Bautista
REO to immediately issue an estoppel letter in the amount of $250,000
without additional charges.
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Bautista REO responded, arguing that ARR had not met its burden of
demonstrating that it was entitled to injunctive relief. Bautista REO
argued it timely provided the requested estoppel letter, in the amount
which reflected properly accrued interest, as provided for in the collateral
note. Bautista REO asserted that even if the trial court finds that it
wrongfully included interest or included usurious interest, requiring it to
issue an estoppel letter for $250,000 would permanently alter Bautista
REO’s rights in the subject property. Bautista REO also argued ARR failed
to establish irreparable harm because it can be adequately compensated
by a monetary award and failed to establish its likelihood of success on
the merits.
A hearing on ARR’s motion for temporary injunction was held on
October 24, 2016.
Order Granting Temporary Injunction
On October 27, 2016, the trial court entered an order granting the
temporary injunction. The order required Bautista REO to release the
$250,000 collateral mortgage against the Pembroke Pines property. The
order further required ARR to deposit $250,000 with the Broward County
Circuit Court Clerk Registry within two business days of the closing of the
Pembroke Pines property.
Bautista REO filed an emergency motion in the trial court to increase
the bond amount, or, alternatively, to stay the injunction. The emergency
motion was denied without a hearing. 1 This Court granted Bautista REO’s
motion for stay pending this appeal.
Analysis
We employ a mixed standard of review. “To the extent the trial court’s
order is based on factual findings, we will not reverse unless the trial court
abused its discretion; however, any legal conclusions are subject to de
novo review.” Foreclosure FreeSearch, Inc. v. Sullivan, 12 So. 3d 771, 774
(Fla. 4th DCA 2009) (quoting E.I. DuPont De Nemours & Co. v. Bassett, 947
So. 2d 1195, 1196 (Fla. 4th DCA 2007)).
To be entitled to a temporary injunction, a party must prove that: “‘(1)
irreparable harm will result if the temporary injunction is not entered; (2)
an adequate remedy at law is unavailable; (3) there is a substantial
likelihood of success on the merits; and (4) entry of the temporary
1 The emergency motion was denied by a different judge.
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injunction will serve the public interest.’” Minty v. Meister Fin. Grp., Inc.,
97 So. 3d 926, 930 (Fla. 4th DCA 2012) (quoting Burtoff v. Tauber, 85 So.
3d 1182, 1183 (Fla. 4th DCA 2012)). The party seeking the injunction has
the burden to provide competent substantial evidence, and the court’s
order must contain “[c]lear, definite, and unequivocally sufficient factual
findings” to support each of the four elements. Concerned Citizens for
Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72 (Fla. 4th DCA 2014)
(alteration in original) (quoting Liberty Fin. Mortg. Corp. v. Clampitt, 667
So.2d 880, 881 (Fla. 2d DCA 1996)).
“A temporary injunction is an extraordinary remedy which should be
granted sparingly.” Gooding v. Gooding, 602 So. 2d 615, 616 (Fla. 4th DCA
1992). “The primary purpose of a temporary injunction is to preserve the
status quo while the merits of the underlying dispute are litigated.”
Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1199 (Fla. 2d DCA 2014)
(quoting Manatee Cty. v. 1187 Upper James of Fla., LLC, 104 So. 3d 1118,
1121 (Fla. 2d DCA 2012)); accord City of Miami Springs v. Steffen, 423 So.
2d 930, 931 (Fla. 3d DCA 1983). In this case, ARR failed to establish
irreparable harm and that there was no adequate remedy at law.
Irreparable Harm
“[A]n injury is irreparable where the damage is estimable only by
conjecture, and not by any accurate standard.” Hatfield v. AutoNation,
Inc., 939 So. 2d 155, 157 (Fla. 4th DCA 2006) (alteration in original)
(quoting JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081, 1084 (Fla. 4th
DCA 2006)). Irreparable harm is not established if the harm can be
adequately compensated by a monetary award. B.G.H. Ins. Syndicate, Inc.
v. Presidential Fire & Cas. Co., 549 So. 2d 197, 198 (Fla. 3d DCA 1989).
The trial court erred in finding ARR established irreparable harm
because of the potential that they would lose the property to foreclosure
sale at a significantly reduced price than that under the purchase and sale
agreement. The initiation of foreclosure proceedings does not constitute
irreparable harm. See Reserve at Wedgefield Homeowners’ v. Dixon, 948
So. 2d 65, 67-68 (Fla. 5th DCA 2007) (holding that threat of foreclosure
proceedings and potential loss of property does not constitute irreparable
harm). The only potential loss is economic, which can be adequately
remedied by monetary damages.
Adequate Remedy at Law
The trial court held that “[d]ue to the numerous changes in
ownership, an adequate remedy at law is not present when the loan
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documents are subject to additional future assignments.” The trial court
erred in finding there is no adequate remedy at law.
The harm alleged by ARR is that it would suffer the loss of the Pembroke
Pines property at a foreclosure sale, which might result in a lower sale
price than that in the purchase and sale agreement. However, such a loss
could be remedied by monetary damages. See 3299 N. Fed. Highway, Inc.
v. Bd. of Cty. Comm’rs of Broward Cnty., 646 So. 2d 215, 220 (Fla. 4th
DCA 1994).
The fact that the damages may not be collectible is irrelevant. See Hiles
v. Auto Bahn Fed’n, Inc., 498 So. 2d 997, 999 (Fla. 4th DCA 1986) (“The
possibility that a money judgment, once obtained, will not be collectible is
irrelevant under the test of inadequacy of remedy at law.”).
Because ARR failed to prove that it would incur irreparable harm with
no adequate remedy on appeal, the court erred in granting the temporary
injunction. We therefore reverse and direct the trial court to dissolve the
injunction.
Reversed and remanded with directions.
WARNER, DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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