ALICIA L. MALDONADO v. ANGELA BUCHSBAUM, proposed Personal Representative of the Estate of JOHN STEPHEN BUCHSBAUM , 259 So. 3d 302 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALICIA L. MALDONADO,
Appellant,
v.
ANGELA BUCHSBAUM, proposed Personal Representative
of the Estate of JOHN STEPHEN BUCHSBAUM,
Appellee.
No. 4D18-1974
[November 21, 2018]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case
No. PRC-XX-XXXXXXX.
Steven B. Dolchin of Steven B. Dolchin, P.A., Hollywood, for appellant.
Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, and Allan
Samuels of Law Offices of Allan Samuels & Associates, P.A., Boca Raton,
for appellee.
CONNER, J.
Alicia L. Maldonado appeals a temporary injunction issued without
notice in favor of the Estate of John Stephen Buchsbaum (“the Estate”).
We affirm the injunctive relief granted, but determine the temporary
injunction fails to comply with the requirement to endorse the date and
hour of entry and to require a bond. We remand the case for the trial court
to correct the deficiencies.
Background
Angela Buchsbaum, the personal representative of the Estate, was
married to the decedent for over thirty years before his death. Prior to
death, the decedent’s mental capacity deteriorated to the point that home
health aides were used to care for him. Maldonado became a full-time
weekday aide caring for the decedent. In the year before he died, the
decedent was hospitalized with extreme mental delusions, such as
believing his wife wanted to kill him. The delusions continued after the
decedent was discharged from the hospital.
Maldonado allegedly began fostering a relationship with the decedent
and began alienating him from his wife. It is also alleged that Maldonado
exerted undue influence over the decedent and succeeded in obtaining a
power of attorney from him. By exerting undue influence, Maldonado
allegedly persuaded the decedent to transfer various assets to her and
change the beneficiary of various Estate assets. The decedent died
unexpectedly.
After the decedent’s death, his wife, as the personal representative of
his Estate, filed a petition for a temporary injunction without notice. The
petition sought to restrain Maldonado from taking possession of any
Estate assets, destroying any financial documents of the Estate, and
representing to others that she was the sole beneficiary of the Estate or a
representative of the decedent. The petition also sought to freeze assets
held in the decedent’s name at various financial institutions. The petition
alleged that Maldonado had already transferred considerable assets owned
by the decedent to herself and that notice of the proceedings prior to
issuance of the injunction would afford her the opportunity to transfer
various assets to her relatives living out of the country. The trial court
reviewed the petition, found it to be legally sufficient, and issued the
temporary injunction without notice. Maldonado gave notice of appeal.
Appellate Analysis
“The standard of review of trial court orders on requests for temporary
injunctions is a hybrid.” E.I. DuPont De Nemours & Co. v. Bassett, 947 So.
2d 1195, 1196 (Fla. 4th DCA 2007). “To the extent the trial court’s order
is based on factual findings, we will not reverse unless the trial court
abused its discretion; however, any legal conclusions are subject to de
novo review.” Id. (quoting Colucci v. Kar Kare Auto. Grp., Inc., 918 So. 2d
431, 436 (Fla. 4th DCA 2006)).
“[A] party seeking a temporary injunction must establish that (1)
irreparable harm will result if the temporary injunction is not entered; (2)
an adequate remedy at law is unavailable; (3) there is a substantial
likelihood of success on the merits; and (4) entry of the temporary
injunction will serve the public interest.” University Medical Clinics, Inc. v.
Quality Health Plans, Inc., 51 So. 3d 1191, 1195 (Fla. 4th DCA 2011).
Maldonado did not file a motion to dissolve the injunction in the court
below. “Since the injunction was issued ex parte and the enjoined party
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did not file a motion to dissolve, we will ‘review only the legal sufficiency of
the order, the complaint, and any supporting documents.’” Bookall v.
Sunbelt Rentals, Inc., 995 So. 2d 1116, 1117 (Fla. 4th DCA 2008) (quoting
Thomas v. Osler Med., Inc., 963 So. 2d 896, 900 (Fla. 5th DCA 2007)).
Maldonado argues that the temporary injunction is improper under the
law because the trial court: (1) failed to make specific findings of fact to
show all four requirements were met to enter a temporary injunction; (2)
failed to provide explicit reasons why the injunction was granted without
giving notice; (3) failed to endorse the date and hour the injunction was
entered and require a bond; and (4) imposed prior restraint in violation of
her First Amendment rights. Upon reviewing the record, we determine the
temporary injunction contains sufficient findings to show all four
requirements established by the case law to justify entry of a temporary
injunction were met and a sufficient explanation of why the injunction was
granted without notice. We reject Maldonado’s argument that the
temporary injunction improperly imposed prior restraint because the two
paragraphs addressing the issue were conclusory arguments and the issue
was not preserved by a motion to dissolve the injunction. However, we
find merit as to Maldonado’s argument that the trial court failed to endorse
the date and hour of entry and to require a bond.
“A temporary injunction without notice is an extraordinary remedy and
the order must strictly comply with Rule 1.610.” Bieda v. Bieda, 42 So. 3d
859, 861 (Fla. 3d DCA 2010) (emphasis added); see also Smith v. Knight,
679 So. 2d 359, 361-62 (Fla. 4th DCA 1996).
Florida Rule of Civil Procedure 1.610(a)(2) requires that: “Every
temporary injunction granted without notice shall be endorsed with the
date and hour of entry . . . .” Additionally, Rule 1.610(b) requires that: “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.” The temporary injunction issued below is not
endorsed with the date and hour of entry and does not require a bond.
Those omissions render the injunction defective. Bieda, 42 So. 3d at 861(requiring strict compliance with Rule 1.610 to uphold a temporary
injunction without notice); Lewis v. Sunbelt Rentals, Inc., 949 So. 2d 1114,
1115 (Fla. 2d DCA 2007) (“Where the complaint and order are insufficient
under rule 1.610, this court will reverse.”); Bellach v. Huggs of Naples, Inc.,
704 So. 2d 679, 680 (Fla. 2d DCA 1997) (“The injunction is defective
because Florida Rule of Civil Procedure 1.610(b) requires the movant to
post a bond.”); see also Fla. High Sch. Athletic Ass’n v. Rosenberg ex rel.
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Rosenberg, 117 So. 3d 825, 827 (Fla. 4th DCA 2013) (“We do find error,
however, in the trial court’s failure to set a bond.”).
We affirm the portions of the temporary injunction granting injunctive
relief, but reverse and remand for the trial court to endorse with the date
and hour of entry and to impose a bond in accordance with rule 1.610(a)(2)
and (b). Lerner v. Dum, 220 So. 3d 1202, 1203 (Fla. 4th DCA 2017).
Affirmed in part, reversed in part, and remanded with instructions.
DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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