Rice v. White, D-353

• Decision Date: 06 December 1962
• Docket Number: No. D-353,D-353
• Citation: 147 So.2d 204
• Parties: Richard RICE and wife, Vera Rice, Merton Armagast and wife, Millicent Armagast, Appellants, v. Fred WHITE and wife, Frances White, and United States Fidelity and Guaranty Company, Appellees.
• Court: Florida District Court of Appeals

Page 204

147 So.2d 204

91 A.L.R.2d 1306

Richard RICE and wife, Vera Rice, Merton Armagast and wife, Millicent Armagast, Appellants, v. Fred WHITE and wife, Frances White, and United States Fidelity and Guaranty Company, Appellees.

No. D-353.

District Court of Appeal of Florida, First District.

Dec. 6, 1962.

Rehearing Denied Dec. 27, 1962.

Collins & Thompson, Panama City, for appellants.

Robert B. Staats of Barron & Hilton, Panama City, for appellees.

CARROLL, DONALD K., Chief Judge.

The defendants in an injunction suit have appealed from an order entered by the Circuit Court for Bay County adjudging them not entitled to damages under an injunction bond executed by the plaintiffs and their surety.

The basic question confronting us on this appeal is whether a chancellor's order dismissing a complaint for injunction without prejudice and dissolving a previously-issued temporary restraining order is a final adjudication that the restraining order had been wrongfully issued and hence that the defendants are entitled to damages under an injunction conditioned upon such wrongful issuance.

The fact essential to the consideration and determination of this question are as follows:

On July 14, 1961, the plaintiffs filed in the said court a petition for a temporary restraining order, which was immediately issued without notice, restraining the defendants from continuing certain dredging operations. A requirement of this order was that it would become effective only upon the giving of a $1,000 bond in favor of the defendants 'conditioned to pay all damages and costs which may accrue by reason of the issuance of this temporary restraining order.' On the same date the plaintiffs filed a $1,000 bond, which they and their surety had executed, conditioned to pay 'such costs and damages as may be incurred or suffered by the defendants in the event they shall be found to have been wrongfully enjoined or restrained by said temporary injunction * * *.'

On August 3, 1961, the defendants filed a motion to dissolve the temporary restraing order. A week later the plaintiffs filed a complaint for a permanent injunction and seeking to quiet title to the land involved. On August 30th the defendants filed a motion to dismiss the complaint on the grounds of failure to state a cause of action cognizable by the court, vagueness, lack of equity, lack of equitable jurisdiction, and the possession by the plaintiffs of a complete and adequate remedy at law. The next day a hearing was held on this motion.

On December 14, 1961, the court entered an order dismissing the complaint and dissolving the temporary restraining order. The provisions of the December 14th order pertinent to the present consideration are:

'ORDERED, ADJUDGED, AND DECREED, that the motion to dismiss be, and the same is, hereby granted, and the complaint filed by the Plaintiffs is hereby dismissed at the cost of the Plaintiffs, without prejudice.

'IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the temporary restraining order or injunction heretofore issued in said cause against the Defendants on the 14th day of July, 1961, be, and the same is, hereby dissolved.

'IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the injunction bond heretofore filed in this cause continue in full force and effect, and the Court retains Jurisdiction of the parties for the purpose of holding additional hearings to determine and establish such damages as may be found to be due the Defendants from the Plaintiff, resulting from the issuance of the temporary restraining order.'

On February 19, 1962, the defendants filed a petition seeking a determination of the damages and cost suffered by them 'as a result of the temporary restraining order being improvidently issued,' and seeking a final judgment against the plaintiffs for such damages and cost. After a hearing on the petition, at which evidence and stipulations of the parties were received, the chancellor on March 29, 1962, entered the order appealed from herein. In this order the chancellor found and held as follows:

'That a motion to dissolve the temporary restraining order was denied in this cause at which time the Court determined that the temporary writ was not improvidently issued; that thereafter an additional suit was filed in this Court involving the same parties and subject matter and this cause was dismissed and the injunction dissolved so that the issues could be determined in the last cause filed; no additional injunction was necessary since the parties and their attorneys stipulated before the Court that they would voluntarily maintain the status quo of the parties and the property pending a final determination of the issues; it is therefore;

'ORDERED, ADJUDGED AND DECREED, that the temporary restraining order in this cause was not improvidently issued and the petitioners are not entitled to damages herein.'

In support of their contention the defendants heavily rely upon the following rule recognized by our Supreme Court in National Surety Company v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931):

'The general rule in this state, as is apparently true elsewhere, where the rules are similar, is that a dissolution of an injunction upon the merits operates as an adjudication that it was improperly issued. Sewell v. Huffstetler, 83 Fla.629, 93 So. 162. See, also, Landis v. Wolf, 206 Ill. 392, 69 N.E. 103; 32 C.J. 449, § 773.'

We recognize, of course, the soundness of the quoted rule, but the critical question remains here whether the chancellor's order dismissing the complaint without prejudice and dissolving the temporary restraining order constituted an adjudication 'on the merits.'

The Supreme Court's decision in the last-cited case is not decisive here because that court held that the dissolution of the temporary injunction involved in that case was 'on its merits.'

One of the most fundamental concepts in our court procedure is the recognition of the vital distinction between 'allegata' and 'probata.'

Under our practice a motion to dismiss a complaint on the ground of failure to state a cause of action is addressed exclusively to the allegations of the complaint, the well-pleaded allegations being assumed to be true for the sole purpose of determining the validity of the motion. In order words, the court determines whether the plaintiff, if he later proves the allegations of his complaint, would thereby establish a cause of action against ...