Mandatory injunctions: the forgotten art of putting the horse back in the proverbial barn.

• Author: Blackwell, Donald A.

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The authors are reasonably certain that if, at your next state or local bar function, you were to randomly ask 100 attendees to define and explain the purpose of an injunction, most, if not all, would respond with some variation of the following: An injunction is an extraordinary form of equitable relief that is intended to restrain a person or entity from engaging in a certain type of conduct in order to maintain the status quo while a court more thoroughly examines and, ultimately, decides the propriety of that conduct in an underlying legal action. (2) Of course, they would be correct. Indeed, the Southern Reporters are overflowing with cases in which Florida courts have used injunctions to restrain all sorts of behaviors, e.g., trespass, (3) public and private nuisances, (4) improper acts by public officials, (5) the exhibition of allegedly obscene material, (6) tortious interference with business relationships, (7) breaches of noncompete agreements, (8) trademark infringement, (9) and the unauthorized practice of law, (10) to name a few.

The authors are equally convinced, however, that if you were to ask that same random sampling of colleagues if an injunction can ever be used to force another to act, many, if not most of them would unhesitatingly and confidently respond with an emphatic "no." They, of course, would be wrong. The truth is, while few practitioners may realize it, for more than a century, Florida courts, including the Florida Supreme Court, have used injunctions--more specifically, mandatory injunctions--to compel a party to act in order to prevent certain injury or damage to another, to property, or to the general public. (11) This article traces the history of this extraordinary equitable remedy, discusses its essential elements, and illustrates some of the ways in which it has been and can be used to secure the desired relief--often without the need for and expense of protracted litigation.

Mandatory Injunctions: The Early Years

Florida litigants first began to avail themselves of mandatory injunctive relief in the early 1900s. In fact, by 1907, the case of Taylor v. Florida East Coast Ry. Co., 45 So. 574 (Fla. 1907), which would become a seminal decision on the use of mandatory injunctions as a means of facilitating the resolution of commercial disputes, already had made its way to the Florida Supreme Court for what would be the first of its two visits. The case came out of a dispute between a hotel owner in Rockledge and a local railroad company. In 1892, the hotelier and the railroad entered into a contract, whereby the hotelier agreed to convey certain lands and monies to the railroad so that the railroad could expand its main line. In exchange for and as a precondition to that conveyance, the railroad agreed to build and maintain 1) a spur track from its main line to a point near where the hotelier intended to remodel an existing hotel, and 2) a depot and platforms at the spur track's point of termination. The railroad also agreed to operate all of its regular passenger trains along the spur track throughout the busy "winter tourist season."

Upon completion of the spur track and depot, the hotelier and his wife conveyed the agreed upon lands to the railroad. Then, relying on the terms and cognizant of the "great advantages" flowing from their agreement, the business-savvy hotelier changed his plans. Specifically, instead of simply remodeling his existing hotel, the hotelier incurred considerable expense (approximately $65,000) to build a larger and more modern hotel that could accommodate even more tourists than its predecessor. In fact, the hotelier expanded his existing holdings by purchasing an additional parcel just north of the hotel, which he later improved at an additional cost of $18,000. Once the spur track, depot, and hotel were complete in the winter of 1894, the hotelier was able to profitably operate his hotel, based, in large part, on its location near the Indian River and its accessibility to tourists by virtue of the new spur track that terminated within 200 feet of the hotel's front doorstep. (12)

However, shortly after the hotelier died in 1905, leaving his wife and children as the beneficiaries of his estate, things changed dramatically. In fact, less than a year later, the railroad, whose owners also held a controlling interest in a corporation that owned and operated hotels situated to the north and south of the Rockledge hotel along its main line, secretly arranged for a large force of workmen to remove the spur track and portions of the depot before abandoning them. The workers then constructed a new depot on the main line at least half a mile from the Rockledge hotel, in an area that the hotelier's widow characterized as "a most undesirable, unsuitable, and swampy locality, extremely unattractive in appearance and unsuited for the purposes of such depot." To add insult to injury, the railroad also relocated the telegraph, express offices, and baggage rooms from the Rockledge location to the new depot, all without the knowledge and consent of the hotelier's widow. (13)

The widow and her sons responded by filing suit against the railroad, in which they sought specific performance of their agreement with the railroad, with relief to include restoration of the spur track and depot and reinstatement of passenger traffic, as well as temporary injunctive relief and an accounting. In support of their complaint and request for a temporary injunction, plaintiffs filed several affidavits, which highlighted the harm the plaintiffs claimed to have suffered and likely would continue to suffer as a result of the railroad's abandonment of the spur track and depot and the consequent disruption of tourist traffic to the hotel. The railroad opposed the motion by filing an affidavit of its general manager who claimed that, because the agreement between the parties was silent with respect to its duration, the railroad had more than fulfilled its contractual obligations by maintaining the spur track and depot and operating its passenger trains over that track for 13 years. In addition, the railroad contended that, due to a change in market conditions during those 13 years, it would lose valuable time and do a considerable disservice to its passengers if it were required to continue to make an additional stop at the Rockledge hotel. Based on the latter considerations, the trial court denied the plaintiffs' motion for a temporary injunction and dismissed their complaint, concluding that they had an adequate remedy at law and, therefore, equitable relief was not available. (14)

On appeal, the Florida Supreme Court recognized that the railroad, as common carrier, had an undeniable "duty to render a service adequate to meet all the just requirements of the public, including reasonable dispatch, convenience, regularity, and promptness of transportation of passengers, provision and maintenance of adequate depot facilities suited to the business and convenience of the communities along the road[.]" However, the court hastened to add that "[those duties did] not relieve the [railroad] from its contract[ual] obligations to individuals, when an observance of [those] obligations [did] not materially and injuriously affect the rights of the public." After performing a public interest analysis, the court could not find anything to suggest that the operation of the railroad's passenger trains over the spur track leading to the plaintiffs' Rockledge hotel would adversely affect the substantial interests of the public. To the contrary, the court concluded that "the public was better served by the depot on the spur track near the hotel." (15) Accordingly, the court reversed the trial court's order of dismissal and remanded the action with directions to require the railroad to answer the complaint. In doing so, the court emphasized that, on remand, the trial court should grant "an appropriate mandatory injunction ... unless the [railroad could] show that the interests of the general public [would] be injuriously affected thereby or that the duration of the contract was not to be indefinite as to time as alleged." (16)

The case returned to the Supreme Court less than a year later (17) on the railroad's appeal from the trial court order "restraining] and enjoin[ing] [the railroad] from failing or refusing to build and construct, on or before the [first] day of October 1908, in a proper and safe manner, a spur track from the main [line] ... to a point where [the railroad]'s station or depot was located" prior to October 1906. The order also required the railroad "to maintain said spur track and depot, and to operate all of defendant's regular passenger trains upon said spur track to said depot during what is known as the 'winter tourist season[.]'" (18) The court ultimately reversed the trial court's order. In doing so, however, the court laid the foundation for future Florida litigants' use of mandatory injunctive relief by 1) acknowledging that mandatory injunctions are an appropriate vehicle for "commanding [a] defendant to do some positive act"; and 2) providing some initial definition as to the circumstances in which its use would be permitted (i.e., "where the right [to the requested relief] is clear and free from reasonable doubt" and, even in such circumstances, only "upon [a] final hearing [for the purpose of] execut[ing] the judgment or decree of the court"). (19)

From the court's perspective, the foregoing principles applied with particular force to the...