Weinstein v. Aisenberg

• Decision Date: 09 March 2000
• Docket Number: No. 4D99-0279.,4D99-0279.
• Citation: 758 So.2d 705
• Parties: Abraham WEINSTEIN a/k/a Abe Weinstein and Chava Weinstein, Appellant, v. Yoram AISENBERG, Appellee.
• Court: Florida District Court of Appeals

758 So.2d 705

Abraham WEINSTEIN a/k/a Abe Weinstein and Chava Weinstein, Appellant, v. Yoram AISENBERG, Appellee.

No. 4D99-0279.

District Court of Appeal of Florida, Fourth District.

March 9, 2000.

Louise H. McMurray, Miami, and Stephens, Lynn, Klein & McNicholas, P.A., Fort Lauderdale, for appellant.

Victor K. Rones of Margulies and Rones, P.A., North Miami, and Kris E. Penzell, Miami, for appellee.

PER CURIAM.

Appellants, Abraham and Chava Weinstein, appeal a non-final order temporarily enjoining their withdrawal of funds at two nonparty banks. The injunction was entered soon after the appellee, Yoram Aisenberg, filed a verified complaint against the Weinsteins for conversion, injunctive relief, and unjust enrichment. We reverse.

Appellant, Abraham Weinstein, and appellee, Yoram Aisenberg, are business partners and shareholders in a foreign corporation known as "Nitro Plastic Technologies Ltd." The corporation maintained a bank account at the Union Bank of Israel, on which both Weinstein and Aisenberg were authorized signers. Aisenberg filed a verified complaint against Weinstein and his wife, Chava, alleging that the Weinsteins withdrew $760,000 from the corporate account without Aisenberg's authorization by forging Aisenberg's signature on the withdrawal authorization form. Aisenberg further alleged that Chava Weinstein deposited the money in newly-opened bank accounts at Nationsbank, N.A. and Washington Mutual Bank. The lower court entered an ex parte injunction prohibiting the two banks from allowing withdrawal of those monies. The Weinsteins appeal the injunction, arguing that the complaint failed to state a cause of action for injunctive relief in that it did not set forth a showing of irreparable harm, a clear legal right, an inadequate remedy at law, or that an injunction would serve the public interest. Additionally, appellants contend that the order imposing the injunction failed to comply with the requirements of Florida Rule of Civil Procedure 1.610 in that it did not make the necessary findings to support an order imposing an injunction and was not endorsed with the date and time it was granted.

An order granting injunctive relief lies within the sound discretion of the trial court and will be affirmed absent an abuse of discretion. Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744 (Fla. 4th DCA 1999); Browning-Ferris Indus. of Florida, Inc. v. Manzella, 694 So.2d 110, 112 (Fla. 4th DCA 1997). A party seeking temporary injunctive relief must demonstrate: (1)irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) that the public interest will be served. Oxford Int'l Bank and Trust, Ltd. v. Merrill, Lynch, etc., 374 So.2d 54 (Fla. 3d DCA 1979); Islandia Condominium, Inc. v. Vermut, 438 So.2d 89 (Fla. 4th DCA 1983); Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). We agree with appellants that the appellee failed to meet the requirements for issuance of a temporary injunction to prevent them from withdrawing funds from the subject banks. The appellee has an adequate remedy at law, i.e., money damages. A claim for money damages does not provide a sufficient basis for injunctive relief. Hiles v. Auto Bahn Fed'n Inc., 498 So.2d 997 (Fla. 4th DCA 1986). Even where the party seeking injunctive relief alleges that the opposing party may dissipate bank assets, a judgment for money damages is adequate and injunctive relief is improper, notwithstanding the possibility that a money judgment will be uncollectible. Id. at 999.

In Lopez-Ortiz v. Centrust Sav. Bank, 546 So.2d 1126 (Fla. 3d DCA 1989), the trial court granted an ex parte injunction upon the filing by Centrust Bank of a one-count complaint alleging that Ortiz had converted funds while employed by the bank. On appeal, the court reversed the injunction freezing Ortiz's bank account and safe deposit box, because the bank had an adequate remedy at law—money damages for conversion. "An action at law does not become an equitable action simply because a request for an injunction has been made." Id. at 1127. Similarly, in Digaeteno v. Perotti, 374 So.2d 1015 (Fla. 3d DCA 1979), which was followed by this court in Cannon v. Danziger, 454 So.2d 59 (Fla. 4th DCA 1984), the court held that the trial court erred in enjoining the defendants in a suit for conversion and fraud from removing assets, since the plaintiffs had an adequate remedy at law in the form of money damages.

The order granting the temporary injunction must be reversed because the complaint failed to show lack of an adequate remedy at law justifying issuance of an injunction. We need not, therefore, determine whether the order complied with Rule 1.610. We agree, however, with Judge Gross' concurring opinion concerning the "no adequate remedy at law" requirement for temporary injunctions in cases like this one. Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance:

INCIDENT TO AN ACTION FOR CONVERSION, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THAT THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/ HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS, AND (4) THAT A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

REVERSED.

KLEIN and TAYLOR, JJ., concur.

GROSS, J., concurs specially with opinion.

GROSS, J., concurring specially.

The majority opinion has reached the correct result, based on an abundance of authority. The holding harmonizes with legal precepts that had their beginnings in the fourteenth century. However, at the beginning of a new century, Florida should reexamine these principles and enable the trial judge to fashion a remedy that does justice in this case.

Aisenberg's complaint alleged that Abe Weinstein, "by the artful use of a copy and facsimile machine," caused the "wrongful withdrawal of $760,000.00" from a business account. The complaint also alleged that there was a "substantial likelihood that the Defendants will abscond with whatever monies are not restrained" and "that there is a great likelihood that the Defendants will be candidates for flight to a foreign jurisdiction." In his brief, Aisenberg emphasizes that without an injunction, he will be left with an empty "piece of paper entitled judgment."

Aisenberg's complaint contained three counts. The count for injunctive relief sought to freeze the Weinsteins' bank accounts. The counts for conversion and unjust enrichment were both actions at law. See Commerce Partnership 8098 Ltd. v. Equity Contracting Co., Inc., 695 So.2d 383, 386-87 (Fla. 4th DCA 1997)

; In re Estate of Corbin, 391 So.2d 731, 732 n. 1 (Fla. 3d DCA 1980). Aisenberg did not pursue the relief available under the prejudgment garnishment statute, section 77.031, Florida Statutes (1999). Nor did Aisenberg seek an injunction incident to an action to impose a constructive trust on the bank accounts. See Castillo v. Vlaminck de Castillo, 701 So.2d 1198, 1199 (Fla. 3d DCA 1997); Korn v. Ambassador Homes, Inc., 546 So.2d 756, 757 (Fla. 3d DCA 1989); see generally, Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927); Staples v. Battisti, 191 So.2d 583, 585 (Fla. 3d DCA 1966).

Many district court of appeal cases have held that a court may not grant the equitable relief of an injunction incident to an action at law, such as conversion. See St. Lawrence Co., N.V. v. Alkow Realty, Inc., 453 So.2d 514, 515 (Fla. 4th DCA 1984)

; Lopez-Ortiz v. Centrust Sav. Bank, 546 So.2d 1126, 1127 (Fla. 3d DCA 1989); Digaeteno v. Perotti, 374 So.2d 1015, 1016 (Fla. 3d DCA 1979). The locution appearing in the older cases is that an action for equitable relief, such as an injunction, cannot be maintained unless it falls "`within some acknowledged head of equity jurisprudence.'" Action Elec. & Repair, Inc. v. Batelli, 416 So.2d 888, 889 (Fla. 4th DCA 1982) (quoting Acquafredda v. Messina, 408 So.2d 828, 829 (Fla. 5th DCA 1982) (quoting B.L.E. Realty Corp. v. Mary Williams Co., 101 Fla. 254, 134 So. 47, 50 (1931))).

Many cases explain this rule by focusing on the absence of two of the elements that a plaintiff must establish in order to obtain injunctive relief. Numerous cases have held that a party seeking an injunction in Florida "must demonstrate: 1) irreparable harm; 2) a clear legal right; 3) an inadequate remedy at law; [and] 4) consideration of the public interest." Hiles v. Auto Bahn Fed'n, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) (citation omitted).

In Hiles, we explained that the "loss of money from a corporate bank account does not constitute irreparable harm because the loss can be compensated for by money damages." 498 So.2d at 998 (citing Goldberger v. Regency Highland Condominium Ass'n, 383 So.2d 1173 (Fla. 4th DCA 1980)); see Digaeteno, 374 So.2d at 1016

; Adjmi v. Pankonin, 126 So.2d 153, 155 (Fla. 3d DCA 1961).

Other cases denying injunctive relief incident to actions at law emphasize that the availability of a money judgment provides an adequate remedy at law. See Oxford Int'l Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54, 56 (Fla. 3d DCA 1979)

; Adjmi, 126 So.2d at 155. The test of the "inadequacy of [a] remedy at law is whether a judgment can be obtained, not whether, once obtained, it will be collectible." Mary Dee's, Inc. v. Tartamella, 492 So.2d 815, 816 (Fla. 4th DCA 1986) (citing St. Lawrence, 453 So.2d at 514).

Florida cases often discuss irreparable harm and the inadequacy of a remedy at law as if they were distinct concepts. However, Florida's application of the irreparable injury rule is consistent with Professor Laycock's observation that

[t]he irreparable injury rule has two formulations. Equity will act only to prevent irreparable injury, and equity will act only if there is no adequate legal

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