Hotel-Motel, Restaurant Emp. and Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc.

• Decision Date: 20 February 1974
• Docket Number: HOTEL-MOTE,RESTAURANT,No. 44109,44109
• Court: Florida Supreme Court
• Parties: 85 L.R.R.M. (BNA) 2873, 73 Lab.Cas. P 53,266 EMPLOYEES & BARTENDERS UNION, LOCAL 339 OF BROWARD COUNTY, et al., Petitioners, v. BLACK ANGUS OF LAUDERHILL, INC., a Florida corporation, Respondent.

Page 479

290 So.2d 479

85 L.R.R.M. (BNA) 2873, 73 Lab.Cas. P 53,266

HOTEL-MOTEL, RESTAURANT EMPLOYEES & BARTENDERS UNION, LOCAL 339 OF BROWARD COUNTY, et al., Petitioners, v. BLACK ANGUS OF LAUDERHILL, INC., a Florida corporation, Respondent.

No. 44109.

Supreme Court of Florida.

Feb. 20, 1974.

Joseph H. Kaplan and Gerald A. Rosenthal of Kaplan, Dorsey, Sicking & Hessen, Miami, for petitioners.

William A. Radford, of Radford & Merrill, Miami, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Hotel-Motel, Restaurant Employees & Bartenders Union Local 339 of Broward County, etc. v. Black Angus of Lauderhill, Inc., 279 So.2d 411), which allegedly conflicts with a decision of the District Court of Appeal, First District (United Steelworkers of America, AFL-CIO v. Seminole Asphalt Refining, Inc., 262 So.2d 215), on the same point of law. Fla.Const., art. V, § 3(b)(3), F.S.A.

Petitioners, a labor union and employees of respondent, were defendants in the trial court and respondent was the plaintiff.

On March 23, 1973, defendant employees left their work stations and began picketing plaintiff's restaurant. On April 26, 1973, plaintiff filed a sworn complaint with attached affidavits for injunction requesting a temporary restraining order. On the day, a temporary restraining order was issued without notice restraining the defendants from continuing the acts charged in the complaint.

Defendants did not move to dissolve the restraining order pursuant to Rule 1.610(c), Fla.R.C.P., 31 F.S.A., which reads as follows:

'Motion to Dissolve. Any party against whom an injunction has been granted may move to dissolve it at any time.'

Nor did defendants seek an evidentiary hearing as authorized by Rule 1.610(d), Fla.R.C.P., which reads as follows:

'Evidence. Either party may present evidence at any hearing on an application for or motion to dissolve an injunction. On hearing the court may grant, dissolve or continue the injunction or may require bond.'

Instead defendants filed an interlocutory appeal pursuant to Rule 4.2, F.A.R., 32 F.S.A., which contains the following:

'Appeals may be prosecuted in accordance with this rule from interlocutory orders in civil actions that, from the subject matter or relief sought, are such as formerly were cognizable in equity Plaintiffs then moved to dismiss the appeal on the ground that it was premature and 'not procedurally apt for appeal.' Plaintiffs' position is that an order granting an Ex parte temporary injunction or an Ex parte temporary restraining order pursuant to Rule 1.610(b), Fla.R.C.P., is procedurally premature for interlocutory appeal under Rule 4.2, F.A.R., in advance of the filing of a motion to dissolve and a hearing held thereon pursuant to Rule 1.610(c) and (d), Fla.R.C.P. Plaintiffs' motion to dismiss the appeal was granted by the District Court of Appeal.

In United Steelworkers of America, AFL-CIO v. Seminole Asphalt Refining, Inc., Supra, a temporary injunction without notice was issued directed to United Steelworkers, the union moved to dissolve, a hearing was held, the hearing was adjourned to be reconvened at a later time, and the union thereupon filed its notice of interlocutory appeal from the temporary injunction. Seminole Asphalt moved to dismiss the interlocutory appeal contending that such an appeal would lie only from an order entered in the proceedings under the motion to dissolve the temporary injunction and that an Ex parte order granting a temporary injunction is not subject to appellate review. Just as the plaintiff in the case Sub judice, Seminole Asphalt cited Greater Miami Development Corporation v. Pender, 142 Fla. 390, 194 So. 867 (1940) and Tower Credit Corporation v. State, 183 So.2d 255 (Fla.App.4th, 1966) in support of its position. The District Court of Appeal adequately distinguished these cases and said:

'The above cited authorities do not resolve the instant judicial problem, which is: Does this Court have jurisdiction to review the sufficiency of the pleadings which constitute the foundation for issuance by a trial judge of a temporary injunction, without awaiting the trial judge's decision upon a motion to dissolve? We answer the foregoing question in the affirmative.

'Temporary injunctions are creatures of equity. An order by a trial court without notice restraining the activities of a labor organization and its members is a temporary injunction. In issuing the instant order, the trial judge of necessity held that the allegations set forth in the petition...