THOMAS G. HINNERS, MARY J. WAMSER, and FLORIDA AFFORDABLE HOUSING, INC. v. BRIAN J. HINNERS ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THOMAS G. HINNERS, MARY J. WAMSER,
and FLORIDA AFFORDABLE HOUSING, INC.,
Appellants,
v.
BRIAN J. HINNERS,
Appellee.
No. 4D20-1320
[March 3, 2021]
Appeal of nonfinal orders from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Gerald Joseph Curley Jr., Judge;
L.T. Case No. 50-2017-CA-009076-XXXX-MB.
Michael J. Pike and Daniel Lustig of Pike & Lustig, LLP, West Palm
Beach, for appellants.
Michael H. Nullman of Nason, Yeager, Gerson, Harris & Fumero, P.A.,
Palm Beach Gardens, for appellee.
PER CURIAM.
Appellants Tom Hinners, Mary Wamser, and Florida Affordable
Housing, Inc. (“FAHI”) timely appeal nonfinal orders denying their motion
for prejudgment writ of replevin and granting a temporary injunction in
favor of Appellee Brian Hinners. Appellants’ prejudgment writ of replevin
should have been granted in part, and the temporary injunction should
not have been entered. We reverse in part. This Court has jurisdiction
over appeals from orders granting injunctions or determining the right to
immediate possession of property. Fla. R. App. P. 9.130(a)(3)(B),
(a)(3)(C)(ii).
Background
In 2016, Tom and Brian entered into the Hinners Trust Agreement
(“Agreement”) providing that Tom and Brian would have equal control
and ownership of each of the family business entities, including FAHI.
Some provisions of the Agreement required amendments to certain
entities’ bylaws. FAHI’s bylaws were to be amended so that Tom and
Brian must agree on designating directors. At the time of signing, Tom,
Mary, and Brian were FAHI’s directors, but Mary was not a party to the
Agreement. FAHI’s bylaws were never amended, and Brian did not seek
to have them amended in the underlying case.
In August 2017, Brian sued Tom, Mary, and several of the business
entities regarding the governance and liquidity of the entities.
Prior to the suit, Tom and Mary voted to remove Brian as a signatory
of FAHI’s bank accounts, and Brian’s company health insurance was
terminated because he did not pay his share of the group policy through
another business entity. He obtained private health insurance
thereafter.
In November 2019, Tom and Brian entered into a written agreement
that allowed Brian and his family to be added back to FAHI’s group
health insurance if Brian paid his share through the other business
entity. Brian never rejoined the group health insurance and instead filed
a motion to compel issuance of benefits. He wanted to be made a
“contract signer” on the entities’ payroll provider to control enrollment in
the group policy. He did not request any injunctive relief.
The trial court held a non-evidentiary hearing on Brian’s motion to
compel and entered an order requiring Appellants to provide Brian with
health insurance but did not make Brian a contract signer. The trial
court ordered Brian to pay a $1,000 bond without holding an evidentiary
hearing.
FAHI generated income through management fees of an affordable
housing development, which were typically wired to FAHI twice per year.
For some reason, the housing development mailed two checks made
payable to FAHI instead of wiring the funds. Brian intercepted the
checks and claims he deposited the funds into a corporate bank account
in FAHI’s name, though he would not disclose the bank, and the trial
court did not compel him to do so.
FAHI sought a writ of replevin to recover the funds, or if the funds
were deposited, the checkbook and check card of the bank account.
FAHI argued it was entitled to immediate possession because its bylaws
provided that “[t]he Treasurer shall retain custody of all corporate funds
and financial records.” FAHI’s annual report, which was filed by Brian in
May 2019, provides that Tom is Treasurer. The trial court denied FAHI’s
motion and found that replevin was not available to recover deposited
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funds in a bank account and that FAHI had not met the statutory
burden to establish the right to replevin.
Analysis
Injunction
Appellants argue that the trial court erred and denied them due
process by issuing a temporary injunction that Brian did not request.
“The party seeking the injunction must prove: (1) it will suffer
irreparable harm unless the injunction is entered, (2) there is no
adequate remedy at law, (3) there is a substantial likelihood that the
party will succeed on the merits, and (4) that considerations of the public
interest support the entry of the injunction.” Concerned Citizens for
Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72 (Fla. 4th DCA 2014).
“Clear, definite, and unequivocally sufficient factual findings must
support each of the four conclusions necessary to justify entry of a
preliminary injunction.” City of Jacksonville v. Naegele Outdoor Advert.
Co., 634 So. 2d 750, 754 (Fla. 1st DCA 1994).
Brian’s motion to compel did not request injunctive relief requiring
Appellants to provide him with health insurance. Brian’s only reference
to a temporary injunction was the final paragraph of his post-hearing
memorandum, which contained conclusory statements that he would
suffer irreparable harm with no remedy at law and was likely to succeed
on the merits.
An injunction entered in the absence of proper pleading and without
an evidentiary hearing is a violation of due process. See DeMaio v. Starr,
791 So. 2d 1116, 1117 (Fla. 4th DCA 2000) (“Without pleadings to
support a request for relief and the right to be heard on the issue, the
entry of a temporary injunction in favor of appellee over appellant's
objection was error.”). In this case, the trial court entered a temporary
injunction without a proper pleading and without an evidentiary hearing.
Further, the injunction did not meet the requirements of Rule 1.610,
which allows for the entry of a temporary injunction without notice if the
movant shows: (1) that immediate, irreparable harm will result before the
adverse party can be heard and (2) the movant’s attorney certifies in
writing any efforts made to give notice and reasons why notice should
not be required. Fla. R. Civ. P. 1.610(a)(1).
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Appellants also argue that Brian did not establish the four elements
required for issuance of a temporary injunction. The trial court found
that, if Appellants did not provide insurance, Brian could suffer
irreparable harm due to the inability to obtain medical treatment. The
court concluded that Brian had no adequate remedy at law because
damages would not be a solution for the potential absence of medical
coverage. These findings are not supported by the record.
Brian is not at risk of irreparable harm due to lack of insurance
coverage because he has private insurance. He noted in his motion to
compel that the cost of private insurance is approximately double the
cost of the group policy. Those additional costs can be remedied with
monetary damages. “Irreparable harm is not established if the harm can
be adequately compensated by a monetary award.” Bautista REO U.S.,
LLC v. ARR Invs., Inc., 229 So. 3d 362, 365 (Fla. 4th DCA 2017).
Appellants also argue the trial court erred by requiring Brian to pay a
$1,000 bond without holding an evidentiary hearing. We agree. “No
temporary injunction shall be entered unless a bond is given by the
movant in an amount the court deems proper, conditioned for the
payment of costs and damages sustained by the adverse party if the
adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b). “[B]oth
parties must be provided with the opportunity to present evidence
regarding the appropriate amount of the injunction bond.” Offshore
Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So. 2d 510, 511 (Fla.
4th DCA 2001).
Replevin
Generally, “[t]he action of replevin is not available to recover a sum of
‘money’ claimed by the plaintiff and ‘possessed’ by the plaintiff only in
the form of ‘funds’ on deposit in the defendant’s bank checking account.”
Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 168 (Fla. 5th
DCA 1986). The property must be capable “of being specifically
described in a writ of replevin and located, identified, and seized by the
sheriff executing the writ.” Id. at 163.
If Brian deposited the checks, then replevin is not available to recover
those funds. However, Appellants are entitled to possession of the
checkbook and check card of the bank account.
In Land-Cellular Corp. v. Zokaites, 463 F. Supp. 2d 1348 (S.D. Fla.
2006), the defendant sought a writ of replevin to recover funds from the
plaintiff’s bank account and the checkbook. Id. at 1352. The Southern
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District relied on Williams and found that the funds in the bank account
were not recoverable and “neither is Defendant entitled to recover
Plaintiffs’ checkbooks, as the issue in this case is the intangible debt
represented by the checkbooks, rather than possession of the
checkbooks themselves.” Id. at 1353.
Brian relies on Land-Cellular for the proposition that the checkbook
and check card are not recoverable, but this case is distinguishable. In
Land-Cellular, the defendant sought possession of the plaintiff’s
checkbook. Here, the bank account was allegedly opened in FAHI’s
name, so the check card and checkbook belong to FAHI.
Appellants established an immediate right to possession of the check
card and checkbook. FAHI’s bylaws provide that the Treasurer of FAHI
shall retain custody of corporate funds. On May 1, 2019, Brian filed
FAHI’s Annual Report, which shows that Tom is Treasurer. Although
Tom and Brian entered into the Agreement, FAHI’s bylaws were never
amended and remain the controlling authority. See Clark v. Bluewater
Key RV Ownership Park, 197 So. 3d 59, 62 (Fla. 3d DCA 2012).
The trial court also improperly reasoned that alleged set-offs “between
Brian and Tom, and Brian and FAHI, and Brian, Tom and the other
[business entities]” made forcing prejudgment conveyance of monies
premature. The recourse for potential set-offs is money damages, not
retention of the property subject to replevin. See Prestige Rent-A-Car, Inc.
v. Advantage Car Rental & Sales, Inc. (ACRS), 656 So. 2d 541, 545 (Fla.
5th DCA 1995).
Finally, Appellants argue that the trial court analyzed its motion
under the incorrect statute. FAHI sought relief pursuant to sections
78.065 and 78.067, Florida Statutes. The trial court order denying
FAHI’s motion relies upon section 78.068, which imposes a higher
standard for obtaining a writ of replevin without notice and hearing.
Compare § 78.067(2), Fla. Stat. (2019) with § 78.068, Fla. Stat. (2019).
Section 78.068 is inapplicable to this case because there was notice and
hearing. See Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA
2004). The trial court should have analyzed FAHI’s motion under section
78.067, not section 78.068.
Conclusion
The trial court erred in entering the temporary injunction and denying
Appellants’ prejudgment writ of replevin. We reverse in part and remand
for the trial court to dissolve the temporary injunction and issue a
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prejudgment writ of replevin granting FAHI possession of the checkbook
and check card.
Reversed in part and remanded with instructions.
LEVINE, C.J., GROSS and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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