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In December I reported on a Fourth DCA decision in which the appellate court reversed the issuance of an ex parte temporary injunction because the order failed to specify why it was granted without notice to the other party. 

In a recent case, the Third DCA reversed the issuance of a temporary injunction for a similar reason:  it failed to specify with reasonable particularity the conduct being enjoined.  The case is Angelino v. Santa Barbara Enterprises, LLC, Case No. 3D08-1066 (Fla. 3d DCA, February 18, 2009).

The case involved a business dispute between the appellant, Sabrina Angelino, and Santa Barbara Enterprises, LLC, each of whom owned a fifty percent interest in Starbridge Networks, LLC, which sells telecommunications products and related technical services.  Santa Barbara alleged that Angelino and her husband set up two competing companies, SILA Networks, LLC and SILA Networks, C.A., through which they usurped business opportunities that belonged to Starbridge Networks. Santa Barbara also alleged that Angelino interfered with Starbridge Networks' relationships with its customers and suppliers.

In its order, the trial court found that Angelino, through SILA Networks, competed and interfered with Starbridge Networks' business relationships in Venezuela.  The trial court therefore enjoined Angelino, both individually and as an employee of SILA Networks LLC, her agents, servants, employees and attorneys from: (a) competing against Starbridge Networks; (b) usurping Starbridge Networks' business opportunities, customers and suppliers; (c) using Starbridge Networks' proprietary information and technology; and (d) interfering with Starbridge Network's relationships with its customers and suppliers, including through the use of derogatory comments about Starbridge Networks, its officers, managers or employees.

The trial court also imposed a constructive trust. The trust encompassed any purchase orders, contracts or other business that Angelino, her agents, servants, employees and attorneys, may have obtained from Starbridge Networks' customers.

The Third DCA reversed both the injunction and the imposition of a constructive trust.  Citing the Fifth DCA's decision in Clark v. Allied Assocs., Inc., 477 So. 2d 656, 657 (Fla. 5th DCA 1985), the court noted:

The trial court enjoined Angelino from competing against Starbridge Networks. But there is no mention of any acts that may be considered competitive in nature. The trial court enjoined Angelino from usurping Starbridge Networks' business opportunities, customers, and suppliers. There is no mention, however, of any customers and suppliers with whom Angelino may not compete. The trial court also enjoined Angelino from the use of Starbridge Networks' proprietary information and technology. There is no mention of any specifics upon which Angelino can rely to determine what information and technology he cannot use. This type of vague language is precisely the type that the district court contemplated in Clark, and we cannot uphold to support the entry of a temporary injunction.

The portion of the temporary injunction in which the trial court imposed a constructive trust is likewise overly broad. The trial court failed to mention with sufficient particularity “what purchase orders, contracts, or other business” Angelino is obligated to hold in a constructive trust. Angelino is left in doubt as to what he is required to do to comply with the trial court's directives. This portion of the injunction is thus defective.

The takeaway from this court is clear.  When drafting a proposed temporary injunction order, attorneys should use precise language that makes it abundantly clear what the other side can and cannot do.  Trial judges in the state court system are extremely busy, and they may not be inclined to tailor language to the specific facts of the case.  But that is what is required to avoid the reversal of the injunction on appeal. The Fifth DCA's advice in Clark is worth reciting here:

An injunctive order should never be broader than is necessary to secure the injured party, without injustice to the adversary, relief warranted by the circumstances of the particular case. The order should be adequately particularized, especially where some activities may be permissible and proper. Such an order should be confined within reasonable limitations and phrased in such language that its requirements can be met, without resert to portions of the record or facts outside the ‘four corners' of the injunction itself. One against whom an injunction is directed should not be left in doubt as to what he is required to do.

Clark, 477 So.2d at 477-78.

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A trial court should not have entered a temporary injunction enforcing a non-compete agreement against a former employee on an ex parte basis, i.e., without notice to the employee, according to the Fourth District Court of Appeals in a recent decision, Bookall v. Sunbelt Rentals, Case No. 08-26291 (Fla. 4th DCA, December 3, 2008). 

The employer, a company that rents construction equipment, employed the former employee until February 7, 2008, under a written agreement containing a non-compete and non-solicitation provision. Shortly after the employee resigned, he began to work at a competing company. Upon discovering this, the employer sent the former employee a letter advising him of the breach of the agreement. The former employee’s counsel responded that the employee understood and would comply with his obligations under the agreement.

Upon learning that the former employee continued to work for the competitor, the employer filed a verified complaint with supporting affidavits and an ex parte emergency motion for temporary injunction. The motion sought a temporary injunction against the former employee and the competitor based on the noncompete and non-solicitation provisions of the employment agreement.  The duty judge assigned to the case entered the temporary injunction. 

In its opinion, the Fourth DCA noted that under the Florida Rules of Civil Procedure, a temporary injunction "may be granted without written or oral notice to the adverse party only if: (A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required."  Furthermore, "[e]very temporary injunction granted without notice . . . shall define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given." See Fla. R. Civ. P. 1.610(a). 

According to the Fourth DCA, the injunction suffered from a "fatal defect": it failed to give the reasons why the order was granted without notice.  The court noted that "[t]his deficiency could have been cured if the employer articulated in its complaint or motion reasons why notice should be dispensed with....Unfortunately for the employer, neither the complaint nor the motion cured the deficiency in this case."

One lesson from the Bookall decision is clear: follow the civil procedure rules carefully.  The rules are just that - rules - not guidelines or suggestions.  The employer's and the court's failure to articulate why the order was granted without notice required a reversal of the injunction order under a plain reading of Rule 1.610(a). 

One might surmise that there was no good reason why notice was not given to the former employee.  After all, the opinion notes that the former employee was represented by counsel.  How hard is it to fax, email and/or call opposing counsel before a hearing, even on an emergency motion?

But perhaps the former employee's counsel was on vacation or otherwise unavailable to receive notice of the hearing.  In that case, an ex parte injunction may have been appropriate, and the employer's and the court's failure to state why the order was granted without notice a mere oversight.

However, even where an ex parte injunction is appropriate, employers and their counsel should be aware that it may be short-lived.  Under Fla. R. Civ. P. 1.610(d), "[a] party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. 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."  Thus, if a court enters a temporary injunction on an ex parte basis, the employer's counsel should clear his calendar for the next week.  The employee is entitled to a file a motion to dissolve and obtain an expedited hearing, and he may stand a good chance of getting the injunction modified or dissolved entirely once he tells his side of the story. 

 

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