Ames v. Ames

KLINGENSMITH, J.

Daniel Ames appeals the entry of a temporary ex parte injunction as well as the denial of his motion to dissolve that injunction. The trial court issued this injunction to preserve money belonging to Daniel’s eighty-year-old father, Luis Ames. For the reasons below; we affirm.

In the underlying case, the father is suing his sons, Daniel and Joseph, for breach of fiduciary duty under power of attorney, fraud, and unjust enrichment. It is alleged that Daniel used the father’s power of attorney to liquidate more than $1 million in the father’s investment account, and used another power of attorney to sell the father’s condominium and kept the proceeds. Daniel claims these assets were given to both sons as gifts. The court granted the father’s request for an ex parte injunction, and after an evidentia-ry hearing which' neither Daniel nor Joseph attended, the court entered a temporary injunction.freezing all of.the sons’ assets but not prohibiting them from paying reasonable living expenses and debts.¹ Although the court indicated it was willing to modify the scope of the injunction,² Daniel’s counsel expressly indicated that no modification was being requested, instead arguing that no injunction of any kind should be issued. This appeal followed.

A temporary injunction will not be overturned absent a clear abuse of discretion. See Eco-Tradition, LLC v. Pennzoil-Quaker State Co., 137 So.3d 495, 496 (Fla. 4th DCA 2014). Here, the court explained that it was ordering the temporary injunction because the father’s assets, which the father needs to survive while showing signs of dementia, were being dissipated; therefore, a money judgment entered later would not suffice. See Smith v. Knight, 679 So.2d 359, 361-62 (Fla. 4th DCA 1996) (stating that an ex parte temporary injunction is appropriate when notice of a hearing could cause “unsecured assets to be liquidated in the context of a fraudulent enterprise”).

Ordinarily, a constructive trust can be impressed only if the trust res is specific, identifiable property or if it can be clearly traced in assets of the defendant. See Finkelstein v. Se. Bank, N.A., 490 So.2d 976, 983 (Fla. 4th DCA 1986). To make this showing, the father served a notice of production inquiring about the subject assets after the sons moved to dissolve the injunction, but no information was ever provided by. the sons. . The sons also refused the father’s attempt to have them provide depositions in this matter.

Here, the trial court entered the temporary injunction because the father needed the assets to survive while experiencing health issues.³ Further, the sons failed to appear at the evidentiary hearing, failed to provide any discovery to the father, and failed to indicate where the father’s money went so the court could enter a more limited injunction. Therefore, the trial court did not abuse its discretion, and we affirm.

Affirmed.

FORST, J., concurs. WARNER, J., dissents with opinion.;

1 . Although the language of the injunction was broad, according to the father’s counsel, only one bank account was actually frozen. Counsel for the sons did not dispute this.

2 . The sons refused to agree on any amount to give the father to live on, thereby rendering him effectively destitute.

3 .The sons stopped paying for the father's residency in an assisted living facility before the entry of the injunction.