Protecting your injunction on appeal in trial court.

• Author: Ward, Thomas

The late author Stephen R. Covey (1) observed that "highly effective" people have the habit of beginning tasks with their desired result in mind. (2) Since the Florida Rules of Appellate Procedure permit an immediate appeal of any order granting injunctive relief, a successful claim often involves convincing not only the trial court to enter the injunction, but also the appellate court to affirm it. (3) With that in mind, an effective litigator takes steps in the trial court to insulate a hard-earned injunction from the inevitable appellate attack. This article discusses some of those steps.

Request Both Preliminary and Final Injunctive Relief

An injunction is a court order commanding or preventing an action, which is often sought under exigent circumstances at the inception of a lawsuit. (4) A temporary (i.e., preliminary) injunction is available to prevent irreparable harm by maintaining the status quo until a trial can be held. (5) A permanent (i.e., final) injunction can only be obtained after a trial. (6)

While the "permanent" label infers that injunctive relief is being indefinitely ordered, not all permanent injunctions are perpetual. (7) Permanent, in this context, only means that the injunction was entered after a trial. (8) For the sake of clarity, an effective litigator refers to temporary injunctions as preliminary and permanent injunctions as final. (9)

Since the purpose of a preliminary injunction is merely to preserve the status quo until trial, a preliminary injunction is reversible if the movant has not also requested a final injunction. (10) Moreover, at least one court has held that procuring a preliminary injunction does not entitle the movant to prevailing party attorneys' fees unless a final injunction also issues. (11) Accordingly, an effective litigator's pleading demands both preliminary and final injunctive relief.

Do Not Seek to Enjoin Behavior That Is Not the Proper Subject of an Injunction

While the terms "preliminary" and "final" apply to an injunction's procedural status, the terms "mandatory" and "prohibitory" apply to its effect. Specifically, orders commanding a person or entity to take a particular action are mandatory injunctions (e.g., requiring the operators of a cemetery to disinter the plaintiff's father; enforcing a restrictive agreement on real property; effectuating specific performance of a contract). (12) Orders preventing action are prohibitory (e.g., prohibiting a condominium association from violating its declaration; prohibiting a developer from building; prohibiting spouses from harassing each other). (13)

This distinction is important because while prohibitory injunctions may be perpetual in duration, (14) mandatory injunctions may not (15) because courts are loathe to take on the duty of indefinitely overseeing specific performance. (16) Additionally, mandatory injunctions are rarely entered before the final trial is held. (17) Aware of these distinctions, an effective litigator never requests perpetual mandatory injunctive relief and avoids requesting temporary mandatory injunctive relief when possible.

Florida courts have also refused to enjoin parties to comply with an employment or personal service contract, (18) comply with a lease term, (19) pay damages before a judgment is entered, (20) from making defamatory or libelous statements, (21) and dissipating assets. (22) Accordingly, an effective litigator does not request injunctive relief concerning these issues.

Strictly Follow All Procedural Requirements

In light of the Supreme Court's admonition that injunctive relief is an "extraordinary remedy to be used sparingly," an order granting such relief will not be affirmed on appeal unless the movant strictly followed all procedural requirements. (23) Therefore, an effective litigator ensures that the record on appeal reflects compliance with those procedures.

Preliminary injunctions sought ex parte are subject to heightened "due process requirements which must be followed" by the movant, its counsel, and the trial court. (24) The failure to strictly abide by those requirements, which are articulated in Fla. R. Civ. P. 1.610(a)(1), constitutes reversible error. (25) Specifically, the movant must include "specific facts" in its verified pleading or affidavit supporting its allegation that it will sustain immediate and irreparable injury, loss, or damage if the hearing is delayed until the adverse party can be heard in opposition. (26) Movant's counsel must articulate and certify in writing that 1) all efforts that have been made to give notice to the opposing party, and 2) all reasons why notice should not be required. (27) And the court must include the following in the ex parte injunction order: 1) an endorsement with the date and hour of entry; 2) a definition of the injury; 3) factual findings why the injury may be irreparable; and 4) the reasons why the order was granted without notice. (28)

Since no meaningful evidentiary hearing can be held ex parte, the movant's verified pleading or affidavit is the only source the trial court can consider when making its findings. (29) Therefore, an effective litigator drafts a proposed preliminary injunction in tandem with the verified pleading or affidavit. By doing so, the litigator...