Barbouti v. Lysandrou, Nos. 89-2740

• Court: Florida District Court of Appeals
• Writing for the Court: Before SCHWARTZ; SCHWARTZ
• Citation: 559 So.2d 648
• Parties: 15 Fla. L. Weekly D689 Ihsan BARBOUTI, Appellant, v. Loizos LYSANDROU; Filippos Nomikos; and Barnett Bank of South Florida, N.A., Appellees. Loizos LYSANDROU, Appellant, v. Ihsan BARBOUTI, Appellee.
• Decision Date: 13 March 1990
• Docket Number: 89-2995,Nos. 89-2740

Page 648

559 So.2d 648 15 Fla. L. Weekly D689 Ihsan BARBOUTI, Appellant,
v.
Loizos LYSANDROU; Filippos Nomikos; and Barnett Bank of South Florida, N.A., Appellees.
Loizos LYSANDROU, Appellant,
v.
Ihsan BARBOUTI, Appellee. Nos. 89-2740, 89-2995. District Court of Appeal of Florida,
Third District. March 13, 1990.

Page 649

Adorno Zeder Allen Yoss Bloomberg Schwartz & Goodkind and Jon S. Hainline, Miami, for Ihsan Barbouti.

William E. Ploss, Daniels and Hicks and Patrice A. Talisman, Miami, for Loizos Lysandrou.

Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.

SCHWARTZ, Chief Judge.

Barbouti claims that Lysandrou, aided by Nomikos, in direct violation of their contractual obligation not to do so, misappropriated $800,000 in checks drawn by Barbouti and deposited the sum in a Miami bank. Initially proceeding ex parte, Barbouti sued Lysandrou and Nomikos in the Dade County Circuit Court on theories, among others, of conversion, civil theft, breach of contract and to establish a constructive trust, and secured a temporary injunction forbidding the removal of the funds from the bank pending the conclusion of the case. On motion of Lysandrou and Nomikos, the trial judge concluded that injunctive relief did not properly lie and therefore granted the motion to dissolve the injunction--but only after giving Barbouti the opportunity, which was timely accepted, to post a bond of $1,600,000, to secure a "freeze" of the account pursuant to a pre-judgment writ of garnishment served on the bank. See § 77.031, Fla.Stat. (1989). ¹ The trial judge subsequently denied the defendants' motion to dissolve the garnishment. In these appeals, which we treat in a single opinion because of their close interrelationship, Barbouti claims error in the order dissolving the temporary injunction, and Lysandrou challenges the failure to dissolve the garnishment. We affirm both orders.

I

Without the necessity of passing upon any of the other substantial issues raised concerning the availability of injunctive relief in a case such as this, ² we find

Page 650

that the dissolution of the injunction was perfectly appropriate. It is a basic rule that equity jurisdiction, particularly including the employment of injunctive relief, does not lie where there is an adequate remedy at law. See 29 Fla.Jur.2d Injunctions § 17 (1981), and cases cited. In this case, the relief attainable by the plaintiff through the use of the injunction--specifically including the availability of the $800,000 to satisfy an eventual judgment--was as a practical matter fully provided by the use of the writ of garnishment which the trial court simultaneously sustained. See Acquafredda v. Messina, 408 So.2d 828 (Fla. 5th DCA 1982); see also Leight v. Berkman, 483 So.2d 476 (Fla. 3d DCA 1986); Konover Realty Assocs. v. Mladen, 511 So.2d 705, 706 n. 5 (Fla. 3d DCA 1987). See generally ITT Community Dev. Corp. v. Barton, 569 F.2d 1351 (5th Cir.1978). II

Turning to the attack by the defendants upon the availability of that remedy, we likewise find no error. Of the defendants' several contentions to the contrary, ³ only the claim that pre-judgment garnishment was inappropriate because the action was one "sounding in tort," § 77.02, Fla.Stat. (1989), ⁴ deserves mention. Under a principle of ancient and honorable lineage, an improper taking of goods or money which actually belongs to another and which may in itself constitute a tort, also gives rise to an implied contractual obligation to return that property. As Prosser says:

T]here has developed the doctrine that where the commission of a tort results in the unjust enrichment of the defendant at the plaintiff's expense the plaintiff may disregard, or "waive" the tort...