Minty v. Meister Financialgroup, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: GERBER
• Citation: Minty v. Meister Financialgroup, Inc., 97 So.3d 926 (Fla. App. 2012)
• Decision Date: 05 September 2012
• Docket Number: No. 4D11–2528.,4D11–2528.
• Parties: Heather MINTY, Appellant/Petitioner, v. MEISTER FINANCIALGROUP, INC. and Law Offices Of Claudine T. Smikle, P.L., Appellees/Respondents.

97 So.3d 926

Heather MINTY, Appellant/Petitioner,

v.MEISTER FINANCIALGROUP, INC. and Law Offices Of Claudine T. Smikle, P.L., Appellees/Respondents.

No. 4D11–2528.

District Court of Appeal of Florida, Fourth District.

Sept. 5, 2012.

Heather Minty, Miami, pro se.

Paula Levy and Michael Rothman of Rothman & Tobin, P.A., Coral Springs, for appellee Meister Financial Group, Inc.

GERBER, J.

The borrower appeals the circuit court's non-final orders: (1) denying her motion to dissolve a temporary injunction entered in the lender's favor; (2) severing some of her counterclaims; and (3) dismissing with leave to amend some of her other counterclaims. We reverse the court's denial of the motion to dissolve the temporary injunction and remand for an evidentiary hearing on that motion. We treat the appeal of the severance order as a petition for writ of certiorari and grant the petition. We lack jurisdiction over the appeal of the dismissal order and thus dismiss that part of the appeal.

According to the underlying complaint's allegations, this case arose when the borrower was sued by a non-party bank foreclosing upon a mortgage in a different case. To avoid the foreclosure, the borrower entered into a loan refinance agreement with the lender in this case. Under the agreement, the lender transferred an amount of money to the borrower's attorney to pay off the foreclosing bank's mortgage, and the borrower executed a promissory note and mortgage in the lender's favor.

Four years after the lender transferred the payoff amount to the borrower's attorney, the borrower fell behind on her note payments to the lender. The lender then discovered that, allegedly at the borrower's direction, the borrower's attorney never transferred the payoff amount to the foreclosing bank, which obtained a final foreclosure judgment against the borrower as a result.

The lender then sued the borrower and her attorney. The lender's complaint sought a mandatory injunction requiring the borrower and her attorney to return the payoff amount. After filing the complaint, the lender filed a motion for a temporary injunction. The motion requested the circuit court to order the borrower's attorney to transfer the payoff amount to the lender's attorney while the action was pending. Following a non-evidentiary hearing on the motion, the court entered an order granting the motion. However, in the order, the court directed the borrower's attorney to deposit the payoff amount into the court registry instead of transferring it to the lender's attorney. The borrower's attorney complied with the order.

The borrower filed her answer, affirmative defenses, and counterclaims. The counterclaims sought damages under various theories for the lender's alleged misconduct regarding the loan agreement. The borrower also filed a motion to dissolve the temporary injunction. The motion argued that the court's order directing her attorney to deposit the loan amount into the court registry was entered without satisfying the requirements for entry of a temporary injunction. The borrower requested the court, pursuant to Florida Rule of Civil Procedure 1.610(d) (2011), to hold a hearing within five days after she filed the motion. SeeFla. R. Civ. P. 1.610(d) (2011) (“If a party moves to dissolve or modify [a temporary injunction], the motion shall be heard within 5 days after the movant applies for a hearing on the motion.”).

The circuit court did not hold a hearing on the borrower's motion to dissolve. Instead, the court entered a second order seeking to clarify its first order. In the second order, the court stated that it did not grant the lender's motion for a temporary injunction, but merely “ordered that the monies be placed in the Court Registry up and until a full evidentiary/trial is completed to determine entitlement.”

Meanwhile, the lender filed a motion to sever some of the borrower's counterclaims and to dismiss some of the borrower's other counterclaims. In the motion to sever, the lender argued that the equitable nature of its claim for injunctive relief, compared to the legal nature of some of the borrower's counterclaims for damages, justified severing those counterclaims. In the motion to dismiss, the lender argued that some of the borrower's other counterclaims failed to state a cause of action.

After a hearing, the circuit court granted the lender's motion to sever. The court also granted the lender's motion to dismiss with leave to amend the counterclaims to which the motion was directed.

This appeal followed. The borrower argues that the circuit court erred in: (1) denying her motion to dissolve; (2) severing some of her counterclaims; and (3) dismissing with leave to amend some of her other counterclaims. We address each argument in turn.

We agree with the borrower that the circuit court erred in denying her motion to dissolve. The court's order directing the borrower and her attorney to deposit the loan amount into the court registry was, in effect, an order granting a temporary injunction and is thus reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(B) (2011) as an interlocutory order. See CMR Distribs., Inc. v. Resolution Trust Corp., 593 So.2d 593, 594 (Fla. 3d DCA 1992) (“An order requiring the deposit of funds into the registry of the court prior to judgment is, in effect, an order granting an injunction and is thus reviewable under [Florida Rule of Appellate Procedure] 9.130(a)(3)(B) ... as an interlocutory order.”) (citations omitted).¹ We employ a mixed standard of review. See Burtoff v. Tauber, 85 So.3d 1182, 1183 (Fla. 4th DCA 2012) (“The standard of review of a court's ruling on a motion to dissolve an injunction is abuse of discretion if the order is based on factual matters, and de novo if based on legal matters.”) (citation omitted).

Here, the court's order denying the borrower's motion to dissolve was in error for three reasons.

First, the temporary injunction did not state the reasons for its entry. SeeFla. R. Civ. P. 1.610(c) (2011) (“Every injunction shall specify the reasons for entry....”); Burtoff, 85 So.3d at 1184 (“[R]eversal is required because the ... order does not contain the findings required by Florida Rule of Civil Procedure 1.610(c).”) (footnote omitted). The reasons required for entry of a temporary injunction are: “(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 injunction will serve the public interest.” Id. at 1183 (citation and quotations omitted).

Second, the court entered the temporary injunction without requiring the lender to post a bond. SeeFla. R. Civ. P. 1.610(b) (2011) (“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.”); Denowitz v. Info. Television Network, Inc., 717 So.2d 1106, 1106 (Fla. 4th DCA 1998) (“We agree with appellants that it was reversible error to enter a temporary injunction without requiring a bond.”) (citations omitted).

Third, the circuit court did not hold an evidentiary hearing on the borrower's motion to dissolve. See Burtoff, 85 So.3d at 1184 (“If the party [against whom the injunction was entered] opts to move to dissolve the injunction, the court must hold an evidentiary hearing where the plaintiff must go forward with evidence sufficient to sustain the ... grant of temporary injunctive relief. Further, the opposing party must have an opportunity to demonstrate that the allegations relied on by the court are not true.”) (citations and quotations omitted).

We remand with instructions that the circuit court hold an evidentiary hearing on the motion to dissolve, at which the lender shall have the burden to present evidence sufficient to grant injunctive relief. The court must give the borrower an opportunity to dispute the allegations. If the court determines that an injunction is appropriate, it must make the required findings. See id. (“On remand, if an evidentiary hearing was not already held, [the appellee] has the burden to present evidence sufficient to grant injunctive relief. The court must give [the appellant] an opportunity to dispute the allegations. If the court determines that an injunction is appropriate, it must make the required findings.”).

The circuit court shall set the evidentiary hearing to occur within five days of the issuance of our mandate. SeeFla. R. Civ. P. 1.610(d) (2011) (“If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.”); Tsiperfal v. Ohio Sav. Sec., Inc., 756 So.2d 1087, 1088 (Fla. 4th DCA 2000) (granting petition for writ of mandamus to compel the trial court to set a prompt hearing on the petitioner's motion to dissolve a temporary injunction, where the trial court did not hear the motion on its merits within five days of the petitioner's request for a hearing pursuant to rule 1.610(d)).²

On the appeal of the severance order, we treat the appeal as a petition for writ of certiorari. SeeFla. R. App. P. 9.040(c) (2011) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.”). “Certiorari is...