Oxford Intern. Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

• Decision Date: 17 July 1979
• Docket Number: No. 79-390,79-390
• Citation: 374 So.2d 54
• Court: Florida District Court of Appeals
• Parties: OXFORD INTERNATIONAL BANK AND TRUST, LTD. and Southeast First National Bank of Miami, Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee.

Page 54

374 So.2d 54

OXFORD INTERNATIONAL BANK AND TRUST, LTD. and Southeast First National Bank of Miami, Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee.

No. 79-390.

District Court of Appeal of Florida, Third District.

July 17, 1979.

Rehearing Denied Sept. 12, 1979.

Smathers & Thompson and Charlton Lee Hunter, Miami, for appellants.

Horton, Perse & Ginsberg and Mallory H. Horton, Barranco, Darlson, Daniel & Bluestein, Miami, for appellee.

Before HAVERFIELD, C. J., and BARKDULL and KEHOE, JJ.

KEHOE, Judge.

Appellants, defendants below, bring this interlocutory appeal from an order denying their motion to dissolve a temporary injunction and continuing in force an injunction prohibiting appellant Oxford International Bank & Trust Company, Ltd., (hereinafter referred to as Oxford Bank) from withdrawing certain funds deposited to its credit at appellant Southeast First National Bank (hereinafter referred to as Southeast).

During the period November 22, 1978, through December 14, 1978, appellee Merrill Lynch, Pierce, Fenner & Smith, Inc. (hereinafter referred to as Merrill Lynch) purchased a substantial number of investment securities in the form of registered and bearer bonds from Oxford Bank. These purchases totaled in excess of $1,700,000. At all times material to the subject transactions, Oxford Bank was acting as an intermediary for one of its customers. Although Merrill Lynch did not know the identity of Oxford Bank's customer and has disputed Oxford Bank's status as an intermediary, Merrill Lynch was aware that Oxford Bank did not purport to be the owner of the investment securities. For purposes of this appeal, it is unnecessary to set forth the series of purchase transactions involved; however, at the conclusion of these transactions, Oxford Bank had delivered all of the proceeds of the sales to Merrill Lynch, i. e., $1,753,570.54 less $48,570.54 for commissions and expenses, or $1,705,000.00 to its customer. Thereafter, between December 14, 1978 and December 20, 1978, Merrill Lynch made a determination that the securities which it had purchased had been previously stolen in New York. Based upon this determination, Merrill Lynch filed a complaint, as amended, against appellants setting forth, among other things, a claim for money damages for the amounts which it had paid for the stolen securities, including a prayer for injunctive relief to prohibit Oxford Bank from withdrawing any funds on deposit with Southeast. This request for injunctive relief was granted without notice by the trial court on December 20, 1978, with a hearing set for December 22, 1978. Oxford Bank made no appearance on December 22, 1978, and the temporary injunction was continued by the trial court. Thereafter, Oxford Bank moved to dissolve the temporary injunction. After a hearing, the trial court on February 6, 1979, entered the order appealed denying the motion to dissolve. This interlocutory appeal followed.

Appellants raise two points on appeal. Their first point is that injunctive relief should not have been utilized in this case to freeze the proceeds of the bank account pending the outcome of the suit for money damages because (1) appellee demonstrated no clear legal right or interest, (2) appellee had an adequate remedy at law, and (3) appellee failed to demonstrate probable success on the merits of its action.

The essential elements necessary for the issuance of a temporary injunction are a clear legal right or interest in the subject matter of the suit, the likelihood of irreparable harm because of the unavailability of an adequate remedy at law, and a substantial likelihood of success on the merits. See, e. g., Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975); and Dade Enterprises, Inc. v. Wometco Theaters, Inc., 119 Fla. 70, 160 So. 209 (1935)...