       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 30, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-968
                         Lower Tribunal No. 11-14127
                             ________________


                      Victoria Mossucco, etc., et al.,
                                   Appellants,

                                          vs.

                       Aventura Tennis, LLC, Inc.,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.

      Mark E. Buechele, for appellants.

      Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Jeffery M. Berman,
for appellee.


Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

      SCALES, J.
      Appellants Victoria Mossucco (Mossucco) and Fabio Gonzalez (Gonzalez)

(collectively, Appellants), Defendants below, seek review of an order denying their

motion to seek damages against an injunction bond posted by Appellee, Aventura

Tennis, LLC (Aventura Tennis), Plaintiff below. We affirm because, under the

facts of this case, Aventura Tennis’ voluntary dismissal of its lawsuit did not result

in an automatic determination that Appellants had been wrongfully enjoined.

      I.     Factual Background

      Aventura Tennis was a retailer of tennis racquets, apparel, and accessories

that previously operated a store in Aventura, Florida. As employees of Aventura

Tennis, Appellants each executed a non-compete agreement, agreeing not to work

for a competing business while employed at Aventura Tennis and for one year

thereafter. The non-compete agreements contained provisions that entitled

Aventura Tennis to seek injunctions to enforce such restrictions.

      Mossucco resigned from Aventura Tennis on October 13, 2010, and

Gonzalez tendered his resignation on December 17, 2010.

      Aventura Tennis contends that in March 2011, Appellants opened a tennis

kiosk on behalf of, or for the benefit of, a direct competitor of Aventura Tennis

(the Kiosk). On May 5, 2011, Aventura Tennis filed a complaint seeking damages

and injunctive relief against Appellants for their alleged violations of the non-

compete agreements. Appellants filed a motion to dismiss, however they did not



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pursue the motion and never obtained a ruling on it. Appellants never filed an

answer to Aventura Tennis’ complaint.

      On June 15, 2011, Aventura Tennis filed a motion in the case for temporary

injunctive relief, seeking to enjoin Appellants from operating the Kiosk. The trial

court held an evidentiary hearing and, on July 12, 2011, entered an order

temporarily enjoining Appellants from working at the Kiosk until October 13,

2011, for Mossucco, and December 17, 2011, for Gonzalez. As a condition of the

temporary injunctions, Aventura Tennis posted a bond in the amount of $32,800

(the Bond). The Bond stated: “[I]f it is later established that the order was

improperly entered, Aventura Tennis, LLC shall pay all costs and damages

defendants sustain in consequence of the order having been improperly entered.”

      Appellants never sought to dissolve the injunctions pursuant to Florida Rule

of Civil Procedure 1.610(d). Nor did Appellants seek immediate review of the

temporary injunctions pursuant to Florida Rule of Appellate Procedure

9.130(a)(3)(B).

      The temporary injunctions expired by their own terms on October 13, 2011,

for Mossucco, and on December 17, 2011, for Gonzalez. On November 29, 2012,

Aventura Tennis unilaterally filed a notice of voluntary dismissal of its action

pursuant to Florida Rule of Civil Procedure 1.420(a)(1).




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      On December 28, 2012, Appellants filed a “Motion for Proceedings Against

Injunction Bond, to Establish Entitlement to Injunction Damages, Attorney’s Fees

and Costs; and to Schedule Evidentiary Hearing” (Motion Against Bond). In the

motion, Appellants sought damages and attorney fees and costs from the Bond.

Appellants requested a determination that the temporary injunctions were

wrongfully obtained. Appellants argued that the voluntary dismissal filed by

Aventura Tennis in November 2012 automatically constituted a determination that

they had been wrongfully enjoined and entitled them to recover damages against

the Bond. Appellants also requested an evidentiary hearing to determine the

amount of damages to which they were entitled.

      On February 14, 2013, the trial court held a hearing on Appellants’ Motion

Against Bond. During the hearing, Appellants claimed they were entitled to

damages from the Bond because “[w]hen you voluntarily dismiss it is considered

to be—the injunction is considered to have been wrongful and the defendants are

entitled to proceed against the bond.” Appellants advanced no other arguments that

the temporary injunctions were wrongfully issued. On March 11, 2013, the trial

court entered an order which, among other things not germane to this appeal,

denied Appellants’ request to proceed against the Bond.

      II.   Analysis




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      The question we are presented with is whether, after a temporary injunction

has long since expired by its own terms, a plaintiff’s voluntary dismissal of its

complaint without prejudice should be treated as an automatic determination that

the defendant was “wrongfully enjoined” within the meaning of Rule 1.610(b),

Florida Rules of Civil Procedure.

      We hold that, given the unique facts and procedural posture of this case,

Aventura Tennis’ voluntary dismissal of its complaint did not constitute an

automatic determination that Appellants had been “wrongfully enjoined” so as to

entitle them to damages against the Bond.

      The standard of review is de novo because there are no disputed facts and

the trial court’s conclusions are purely legal. City of Hollywood v. Petrosino, 864

So. 2d 1175, 1176 (Fla. 4th DCA 2004).

            i.     Recovering Against an Injunction Bond

      Pursuant to Florida Rule of Civil Procedure 1.610(b), “[n]o temporary

injunction shall be entered unless a bond is given by the movant in an amount the

court deems proper.” The purpose of an injunction bond is to provide sufficient

funds to cover the adverse party’s costs and damages if the injunction was

wrongfully issued. Bieda v. Bieda, 42 So. 3d 859, 862 (Fla. 3d DCA 2010).

Whether the enjoined party is entitled to recover on the bond is solely determined

by whether the adverse party was “wrongfully enjoined.” See Fla. R. Civ. P.



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1.610(b) (stating bond condition is payment of costs and damages of adverse party

who is “wrongfully enjoined”); see, e.g., Shea v. Cent. Diagnostic Servs., Inc., 552

So. 2d 344, 346 (Fla. 5th DCA 1989) (“An aggrieved party is entitled to damages

resulting from the wrongful issuance of an injunction.”); see e.g., Dep’t of Health

& Rehab. Servs. v. G & J Invs. Corp., 541 So. 2d 1197, 1200 n.2 (Fla. 3d DCA

1988) (“To sustain an action for damages it must be made to appear that such an

injunction was wrongful in its inception, or at least continued owing to some

wrong on the part of plaintiff.”) (citation omitted).

      “The standard for determining whether an injunction was wrongfully issued

is simply whether the petitioning party was unentitled to injunctive relief.” Parker

Tampa Two, Inc. v. Somerset Dev. Corp., 544 So. 2d 1018, 1021-22 (Fla. 1989);

see also Biscayne Park, LLC v. Wal-Mart Stores E., LP, 34 So. 3d 24, 26 (Fla. 3d

DCA 2010).

             ii.    Lorie and Effect of Voluntary Dismissal by Plaintiff

      Appellants rely on Lorie v. C.L.N., 757 So. 2d 610 (Fla. 3d DCA 2000), to

support their proposed per se rule of law that a voluntary dismissal without

prejudice of an action seeking an injunction automatically constitutes an

adjudication that the adverse party was “wrongfully enjoined.” We cannot agree.

      In Lorie, the plaintiffs obtained a temporary injunction and posted a bond.

Id. at 611. Following this court’s affirmance of an appeal by the defendants



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challenging the propriety of the temporary injunction, and while the injunction was

still in effect, the plaintiffs filed a voluntary dismissal of their suit. Id. Thereafter,

the defendants moved for dissolution of the temporary injunction and for

distribution to them of the bond proceeds. Id. The plaintiffs, on the other hand,

moved to recover the bond contending that no adjudication on the merits had

resulted from the voluntary dismissal. The trial court agreed with the plaintiffs’

additional argument that the prior affirmance on appeal of the temporary injunction

meant that the injunctions were not “wrongfully” obtained. Id. The trial court

discharged the bond proceeds to the plaintiffs. Id.

        Relying on the “general rule” that a voluntary dismissal by the plaintiff

“warrant[s] a right of action upon [the bond],” this court reversed and remanded

the cause for a hearing on the defendant’s entitlement to damages.1 Id. at 612.

        Contrary to Appellants’ contention, Lorie did not explicitly hold that, in all

cases in which a temporary injunction is sought and obtained, a voluntary

dismissal without prejudice automatically constitutes an adjudication that the


1   This court cited 91 A.L.R. 2d 1312 § 2, which noted:

        As a general rule, the voluntary dismissal of a suit by the plaintiff,
        after obtaining an interlocutory injunction and giving a bond, when
        made without the consent of the defendant, is determinative of the
        controversy and is such a breach of the condition of the bond as to
        warrant a right of action upon it . . . .

Lorie, 757 So. 2d at 611-12 (emphasis added).

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injunction was wrongfully entered.2 Cf. Rice v. White, 147 So. 2d 204, 206-07

(Fla. 1st DCA 1962) (“[A] dissolution of an injunction upon the merits operates as

an adjudication that it was improperly issued.” (quoting Nat’l Surety Co. v.

Willys-Overland, Inc., 138 So. 24, 25 (Fla. 1931) (emphasis added))).

      We hold that a plaintiff’s voluntary dismissal of its suit without prejudice

after it has sought and received a temporary injunction can, but does not

automatically, constitute an adjudication that the adverse party was “wrongfully

enjoined.” However, where, as here, the notice of voluntary dismissal was not filed

until a year after the temporary injunctions expired by their own terms, and, where

the enjoined parties took no action to challenge the propriety of the temporary

injunctions until a year-and-a-half after they were entered, and nearly a year after

they expired, the enjoined parties still had to prove that the injunctions were

“wrongfully entered” to succeed in an action for damages against the bond.3

2 In fact, while not entirely clear from the opinion, it appears the trial court in Lorie
treated the plaintiffs’ voluntary dismissal of their action as “automatically
requir[ing] the return of an injunction bond to a plaintiff.” Lorie, 757 So. 2d at 611.
3 See G & J Invs. Corp., 541 So. 2d at 1200 n.2 (“The existence of the voluntary
dismissal does not ‘prove’ that the acts taken by [the plaintiff] were wrongful . . .
.”); see Ayer v. Gen. Dynamics Corp., 625 P.2d 913, 914-15 (Ariz. Ct. App. 1980)
(holding that the plaintiff’s voluntary dismissal of its complaint seeking injunctive
relief was not conclusive and the defendant still “had to prove that the injunction
was wrongfully issued”); see also U.S. D.I.D. Corp. v. Windstream Commc’ns,
Inc., 916 F. Supp. 2d 501, 512 (S.D.N.Y. 2013) (“[T]he [c]ourt holds that a
plaintiff’s voluntary dismissal of its suit . . . after it has sought and received a TRO
or a preliminary injunction can constitute a final adjudication on the merits that
‘the injunction should not have issued in the first instance.’ The determination of

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      III.   Conclusion

      In sum, we certainly do not foreclose the possibility that, in certain

circumstances not present here, a plaintiff’s voluntary dismissal of its complaint

may be treated as an adjudication that the injunction was “wrongfully entered.”

See, e.g., U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc., 916 F. Supp. 2d 501,

514 (S.D.N.Y. 2013) (concluding the plaintiff’s “voluntary dismissal should be

treated as a final adjudication on the merits justifying a finding that [the defendant]

was ‘wrongfully’ restrained by the TRO” where “all of the relevant factors support

the conclusion that [the plaintiff] dismissed its suit ‘on the basis of a belief that [it

would] lose on the merits.’”) (citations omitted).

      Moreover, our holding does not necessarily require an enjoined party to

challenge the validity of an injunction before a plaintiff files a notice of voluntary

dismissal, or before a temporary injunction expires by its own terms, in order to

succeed in an action for damages against a bond.

whether such a dismissal should be treated as a final adjudication on the merits for
such purposes, however, ‘must be made on a case by case basis’ in light of the
totality of the circumstances.”) (citations omitted); cf. Oakwood Manor, Inc. v.
Eck, 358 So. 2d 585, 587 (Fla. 2d DCA 1978) (“Admittedly, the dismissal for
failure to amend constituted an adjudication of the suit on the merits . . . but this
does not necessarily mean that the temporary injunction was improperly issued in
the first place . . . . ‘To sustain an action for damages it must be made to appear
that such injunction was wrongful in its inception, or at least was continued owing
to some wrong on the part of the plaintiff.’”) (citations omitted).




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      Rather, in determining whether a voluntary dismissal constitutes an

adjudication that the enjoined party was “wrongfully enjoined,” the trial court

should consider the totality of the circumstances on a case-by-case basis. See, e.g.,

LaSalle Capital Group, Inc. v. Alexander Doll Co., No. 95C1640 (N.D. Ill. Oct. 2,

1995) (holding that determinations should be made on a case-by-case basis).

      In the instant case, it was never established that Appellants were

“wrongfully enjoined.” Indeed, in their Motion Against Bond, the enjoined parties

simply advanced the legal position that the voluntary dismissal of the plaintiff’s

case in which the temporary injunctions were entered was enough to establish they

were “wrongfully enjoined.”4

      On the facts of this case, we find no error in the trial court’s conclusion that

the mere filing of the voluntary dismissal—long after the temporary injunctions


4 Unlike the defendants in Lorie, Appellants in the instant case did not initiate any
action to prove they were “wrongfully enjoined.” The Lorie defendants challenged
the propriety of the temporary injunction on three separate occasions by: (1)
appealing the initial grant of the temporary injunction; (2) moving to dissolve the
temporary injunction after the plaintiffs voluntarily dismissed the case; and (3)
appealing the trial court’s finding that the injunction was properly entered.
      Here, Appellants did not file any motion to dissolve the temporary
injunctions, nor did Appellants seek appellate review of the temporary injunctions.
Significantly, in their Motion Against Bond, which was filed nearly a year-and-a-
half after the temporary injunctions were entered, and nearly a year after they
expired by their own terms, Appellants did not request an opportunity to prove
they were “wrongfully enjoined;” instead, Appellants simply requested an
automatic determination by the trial court that the temporary injunctions were
“wrongful” based on the plaintiff’s voluntary dismissal of its lawsuit.


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were entered, and long after they expired by their own terms—was not sufficient to

establish the wrongfulness of the temporary injunctions.

      Affirmed.




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