THE SHIR LAW GROUP, P.A. v. DARIO CARNEVALE

Third District Court of Appeal
State of Florida
Opinion filed February 24, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1460
Lower Tribunal No. 16-1219
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The Shir Law Group, P.A., et al.,
Appellants,
vs.
Dario Carnevale, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Veronica Diaz, Judge.
ADR Miami LLC, and Juan Ramirez, Jr.; Robert E. Menje, PLLC, and
Robert E. Menje (Pembroke Pines), for appellants.
Kozyak Tropin & Throckmorton LLP, and Javier A. Lopez, and John I.
Criste, Jr., and Rasheed K. Nader, for appellees.
Before FERNANDEZ, LINDSEY, and LOBREE, JJ.
PER CURIAM.
Before us for review is the lower court’s order granting a motion filed
by Appellees Dario Carnevale, Esq., and Flavia Carnevale, Esq., entitled
“Emergency Motion for Temporary Injunction.” We reverse.
On the evening of September 2, 2020, the Carnevales filed an
Emergency Motion for Temporary Injunction that was neither sworn to nor
verified. Approximately 18 hours later, on September 3, 2020, the court held
a hearing on the motion. 1 Despite Appellants’ request prior to the hearing
for additional time to review and prepare and then, at the hearing, for the
court to hold an evidentiary hearing, the lower court declined Appellants’
request and specifically stated that “this is not an evidentiary hearing.” At
the conclusion of the hearing, the court orally granted the motion, and on
September 9, 2020, the court entered a written order that is the subject of
this interlocutory appeal.2
Appellees urge us to interpret the order only as one enforcing an
existing, court-ordered constructive trust—not as one granting an injunction. 3
1
On the morning of September 3, 2020, Appellants were notified via email
that the hearing on the injunction would take place at 1:30 that same day.
2
We have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(B), which authorizes review of interlocutory orders that “grant,
continue, modify, deny, or dissolve injunctions . . . .”
3
Appellees reference an order entered February 10, 2020, granting their
motion for partial summary judgment imposing a constructive trust. We
2
We decline to do so. Courts are presumed to say what they mean whether
orally or in writing. Appellees filed a motion entitled “Emergency Motion for
Temporary Injunction.” The lower court held a non-evidentiary hearing and
then entered an order entitled “Order on Carnevlaes’ Emergency Motion for
Temporary Injunction” granting the motion. The court made the following
three findings:
1. On February 10, 2020, this Court imposed a
constructive trust over Unit E-209 at the Miami
Beach Club Condominium Association for the
Carnevales’ benefit.
2. The Defendants (The Shir Law Group, P.A., Guy
M. Shir, Stuart J. Zoberg, ZTJ Recovery, Inc., and
Jodi Shir) shall not sell, transfer, or facilitate the
sale or transfer of Unit E?209 [sic], individually or
as part of a larger transaction, without prior
authorization from this Court.
3. Compliance with this Order, as with all Court
orders, is not optional. Failure to comply with this
Order will result in sanctions.
recognize that a temporary injunction lies to freeze the res of an alleged
constructive trust upon a showing that the res is in probable danger of
dissipation and that there is a reasonable likelihood of success on the merits
with respect to the constructive trust claim. See Korn v. Ambassador Homes,
Inc., 546 So. 2d 756 (Fla. 3d DCA 1989). However, there has been no such
showing here because no evidentiary hearing was held. Further, the order
granting Appellees’ emergency motion for temporary injunction exceeds the
scope of the February 10, 2020 order granting their motion for partial
summary judgment.
3
Injunctions are governed by Florida Rule of Civil Procedure 1.610,
which provides as follows:
(a) Temporary Injunction.
(1) A temporary injunction may be granted without
written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by
affidavit or verified pleading that immediate and
irreparable injury, loss, or damage will result to
the movant before the adverse party can be
heard in opposition; and
(B) the movant’s attorney certifies in writing any
efforts that have been made to give notice and
the reasons why notice should not be required.
(2) No evidence other than the affidavit or verified
pleading shall be used to support the application
for a temporary injunction unless the adverse
party appears at the hearing or has received
reasonable notice of the hearing. Every temporary
injunction granted without notice shall be
endorsed with the date and hour of entry and shall
be filed forthwith in the clerk’s office and shall
define the injury, 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. The temporary injunction
shall remain in effect until the further order of the
court.
(b) Bond. No temporary injunction shall be entered
unless a bond is given by the movant in an amount
the court deems proper, conditioned for the
payment of costs and damages sustained by the
adverse party if the adverse party is wrongfully
enjoined. Unless otherwise specified by the court,
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the bond shall be posted within 5 days of entry of
the order setting the bond. When any injunction is
issued on the pleading of a municipality or the
state or any officer, agency, or political subdivision
thereof, the court may require or dispense with a
bond, with or without surety, and conditioned in
the same manner, having due regard for the public
interest. No bond shall be required for issuance of
a temporary injunction issued solely to prevent
physical injury or abuse of a natural person.
(c) Form and Scope. Every injunction shall specify
the reasons for entry, shall describe in reasonable
detail the act or acts restrained without reference
to a pleading or another document, and shall be
binding on the parties to the action, their officers,
agents, servants, employees, and attorneys and
on those persons in active concert or participation
with them who receive actual notice of the
injunction.
We reverse the order granting the temporary injunction because the
lower court entered the order in contravention of Rule 1.610. There was
insufficient notice, Appellant’s request for an evidentiary hearing was denied,
the order failed to contain sufficient factual findings to support each prong of
the four-part injunction test, and the lower court failed to set an appropriate
bond. See Eldon v. Perrin, 78 So. 3d 737, 738 (Fla. 4th DCA 2012);
Cushman & Wakefield, Inc. v. Cozart, 561 So. 2d 368, 370 (Fla. 2d DCA
1990); Rittirucksa v. Barrette, 254 So. 3d 1194, 1194-95 (Fla. 5th DCA 2018)
(“Barrette’s motion for injunctive relief was unsworn, and thus, the trial court
was required to conduct an evidentiary hearing prior to granting injunctive
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relief.”); Florida High School Activities Ass’n, Inc. v. Mander ex rel. Mander,
932 So. 2d 314 (Fla. 2d DCA 2006).
Reversed and remanded.
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