       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 5, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 13-1509
                         Lower Tribunal No. 03-10876
                             ________________


                          Bull Motors, LLC., etc.,
                                    Appellant,

                                        vs.

                               Mary K. Brown,
                                    Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ronald Dresnick,
Judge.

     Kirschbaum, Birnbaum, Lippman & Gregoire, and Nancy W. Gregoire, (Ft.
Lauderdale); Richard A. Ivers, (Coral Springs), for appellant.

     James M. Loren (Plantation); Sina Negahbani, for appellee.

Before WELLS, EMAS and LOGUE, JJ.

     WELLS, Judge.

     Bull Motors, L.L.C., d/b/a Maroone Ford of Miami appeals from a

permanent injunction mandating the inclusion of specific language in both its
conditional financing transaction agreements involving a spot delivery, and in its

notifications to purchasers whose initial financing applications have been rejected.

We reverse the final injunctive order for two reasons, first because it was entered

without affording Bull Motors the opportunity to be heard at an evidentiary hearing

on the matter, and second because the order is overly broad and exceeds the relief

requested.

      This action was filed in 2003 when Mary Brown realized that she had not

received the Credit Life and Disability insurance coverage that she allegedly was

promised and applied for at the time she applied for financing for the purchase of a

new Ford Escort. Although Brown was not charged a premium for the applied-for

insurance, she claimed that she would not have gone through with the purchase of

the car without the insurance and sought damages for fraudulent inducement. She

also sought declaratory and injunctive relief under section 501.211 of the Florida

Statutes, Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA).1

      In a bifurcated proceeding, a jury awarded Brown $700 for the damage she

incurred when she had to pay two installment payments on her car while she was

disabled following two surgeries; $1,528.21 for FDUTPA violations; and $50,000

in punitive damages. These awards subsequently were nullified when the court

1 In her third amended complaint, Brown also sought redress for purported
violations of the Truth in Lending Act (TILA) 15 U.S.C. section 1601 et seq. and
Florida’s Motor Vehicle Retail Sales Finance Act, section 520.01 et seq. Both of
these claims were dismissed before trial.

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below granted Bull Motors’ motion for judgment in accordance with its motion for

directed verdict.

      The court below subsequently granted declaratory and injunctive relief

pursuant to section 501.211(1) of the Florida Statutes, finding that when Bull

Motors signed Brown’s name to new financing applications with no request for

disability insurance coverage after she had been rejected for financing and

disability insurance, it had engaged in “unfair, deceptive, unconscionable and

injurious [conduct]” as proscribed by that provision.

      The parties then were directed to confer with each other to agree to an

appropriate consent injunctive decree and advised that should they fail to agree, the

court would hold a hearing to determine the appropriate injunctive relief. After

two non-evidentiary hearings to determine the scope of the injunctive relief to be

imposed, on May 28, 2013, Brown’s counsel sent a proposed final judgment to the

trial court. The proposed order required Bull Motors to include specific language

in all of its spot delivery contracts and to provide a proposed notification to every

customer whose initial financing application had been disapproved. The letter

transmitting this proposed order was mailed by regular post to counsel for Bull

Motors. Two days later, on May 30, 2013, before Bull Motors had an opportunity

to request a hearing, the order was signed by the court below.

      That order states in pertinent part:



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       ORDERED AND ADJUDGED
       A permanent Injunction is hereby entered against the Defendant
(which includes it agents/representatives) as follows:
       Pursuant to Fla. Stat. § 501.211(1) and in light of the factual
record, this Court had previously decreed Defendant’s conduct to be
fraudulent, unfair, deceptive and unconscionable and thus a clear
violation of FDUTPA. In order to protect the consuming public and
prevent future misconduct by the Defendant as to the type suffered by
the aggrieved consumer in this case (i.e., one relating to the forging of
the consumer’s signatures on financial documents and/or retail sales
installment contracts (RISC), on all future vehicle sales transactions
involving financing where conditional credit approval is sought and/or
where vehicle spot delivery occurs and/or where the customer
(“consumer”) subsequent to contracting is to be re-contracted because
[of] failed financing on the original terms, the Court hereby issues this
injunctive order and decrees that the Defendant (which includes its
agent/representatives) must strictly adhere to the following directives
and procedures:
1. On all conditional financing transactions involving spot delivery,
   Defendant shall modify its spot delivery form or create a standard
   form that reads at the top of the document (in 20 bold font) as
   follows:

YOU HAVE CONDITIONALLY BEEN
APPROVED FOR FINANCING.     THE
FINANCING IS NOT FINAL AND YOU
MAY HAVE TO BRING THE VEHICLE
BACK TO US IF FINANCING IS
DISAPPROVED. IF THE CONDITIONAL
APPROVAL IS REJECTED, YOU HAVE
THE   RIGHT   TO   CANCEL   THE
TRANSACTON    AND   RECEIVE   A
REFUND;   IF  YOU   DECIDE   TO
NEVERTHELESS PROCEED WITH THE
SALES TRANSACTION, YOU HAVE THE

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RIGHT TO REVIEW AND SIGN A NEW
FINANCING APPLICATION – WHICH
YOU ONLY NEED TO SIGN IF ITS [SIC]
FULLY COMPLETED.
              ____________ (Initial)
              ____________ (Date)

       2. All financing transactions requiring re-contracting shall
require Defendant to provide the customer with a notice (sent via
certified mail return receipt request) containing the following:

Dear Customer:
      Your financing agreement signed on ______, was
disapproved. We are enclosing a copy of this agreement for your
review.
      Date of rejection ______________________
      Reason for disapproval _________________
      Additional or differing terms or requirements necessary to
qualify           for          financing,        are          as
follows:____________________________________.
      We have made alternate financing arrangements with
___________________ (a finance company/lending institution)
and are enclosing herein for your review a new proposed
financing agreement. Please contact us to discuss your financing
options.
            Signature of Manager /s/ ______________

      3. Defendant is strictly prohibited from having consumers sign
RISCs in blank or only partially filled-out.
      4. Defendant is required to maintain originals of all financial
documents signed by the consumer. If the original cannot be
maintained because the financing institution/bank requires the original
documents, the Defendant is required to maintain legible copies of
same.
      Defendant’s failure to adhere with the terms of this decree and
upon adjudication of any violation of same, may result in the entry of



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      a contempt order upon which further orders may be entered including
      but not limited to the imposition of monetary sanctions.
            The Court reserves jurisdiction to enforce the Court’s decree,
      and provide and enter such other orders as necessary or appropriate,
      including those to enforce compliance.

      Bull Motors challenges the validity of this mandatory injunction on a

number of grounds. However, we find only two have merit: first, we agree that the

injunction was improperly entered without conducting an evidentiary hearing, and

second we agree that the injunction is invalid because it is overly broad and falls

far outside the scope of relief sought below.

      While “[t]he grant or denial of an injunction is a matter that lies within the

sound discretion of the trial court,” injunctions which compel or mandate

affirmative action by a party are disfavored:

             The grant or denial of an injunction is a matter that lies within
      the sound discretion of the trial court. E. Fed. Corp. v. State Office
      Supply Co., 646 So. 2d 737, 741 (Fla. 1st DCA 1994). “Injunctions
      are classified as prohibitory or mandatory in their effect and as
      temporary or permanent in their duration.” See Henry P. Trawick, Jr.,
      Trawick’s Florida Practice & Procedure § 28.1 (2010 ed.).
      Mandatory injunctions, which compel an affirmative action by the
      party enjoined, are looked upon with disfavor, and the courts are
      even more reluctant to issue them than prohibitory ones. See
      Johnson v. Killian, 157 Fla. 754, 27 So. 2d 345, 346 (1946).
      “Issuance of mandatory injunctions before final hearing is
      disfavored and should be granted only in ‘rare cases where the right
      is clear and free from reasonable doubt.’ ” Spradley v. Old Harmony
      Baptist Church, 721 So. 2d 735, 737 (Fla. 1st DCA 1998) (quoting
      Am. Fire & Cas. Co. v. Rader, 160 Fla. 700, 36 So. 2d 270, 271
      (1948)).




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Grant v. GHG014, LLC, 65 So. 3d 1066, 1067 (Fla. 4th DCA 2010) (emphasis

added).

       Here, no evidentiary hearing was held to allow Bull Motors to present

evidence and to voice its opposition to the permanent mandatory injunctive relief

proposed. Instead, the trial court adopted the plaintiff’s proposed order and signed

it before Bull Motors was given time to request a hearing or file a written response,

let alone advance its position at an evidentiary hearing. “Procedural due process

requires that each litigant be given proper notice and a full and fair opportunity to

be heard.” Carmona v. Wal-Mart Stores, East, LP, 81 So. 3d 461, 463 (Fla. 2d

DCA 2011). On that basis alone, the order must be reversed. See Waste Mgmt.,

Inc. of Fla. v. Dunn, 873 So. 2d 623, 623-24 (Fla. 3d DCA 2004) (vacating an

order granting injunctive relief because the trial court did not conduct an

evidentiary hearing); Lopez v. Paredes, 653 So. 2d 472, 473-74 (Fla. 2d DCA

1995) (holding that the trial court’s order was injunctive in nature, and as such

required an evidentiary hearing on the entitlement to relief); see also Miami Bridge

Co. v. Miami Beach Ry.Co., 12 So. 2d 438, 443 (Fla. 1943) (“It is settled by an

overwhelming weight of authority that, except in rare cases, where the right is clear

and free from reasonable doubt, a mandatory injunction, commanding the

defendant to do some positive act, will not be ordered except upon final hearing,

and then only to execute the judgment or decree of the court.” (quoting Fla. E.



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Coast Ry. Co. v. Taylor, 47 So. 345, 345-46 (Fla. 1908))). For this reason alone,

the injunction entered below must be reversed.

      Moreover, the injunction mandating Bull Motors’ future behavior and

specifying the precise language the company must use with all future customers, is

overly broad.

      An injunction should never be broader than is necessary to secure to
      the injured party relief warranted by the circumstances involved in the
      particular case. E.g., DeRitis v. AHZ Corp., 444 So. 2d 93, 94 (Fla.
      4th DCA 1984) (quoting Fla. Peach Orchards, Inc. v. State, 190 So. 2d
      796, 798 (Fla. 1st DCA 1966)). Entry of an overly broad injunction
      can constitute a violation of the First Amendment. See, e.g., Animal
      Rights Found. of Fla., Inc. v. Siegel, 867 So. 2d 451, 456 (Fla. 5th
      DCA 2004); Adoption Hot Line, Inc. v. State, 402 So. 2d 1307, 1308–
      09 (Fla. 3d DCA 1981).

Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091 (Fla. 3d DCA 2014).

Here, the trial court could have prohibited the conduct identified as violative of

FDUTPA, without in effect dictating how this defendant should conduct its

business and communicate in the future with all of its customers. Id. (vacating

injunction and observing that injunction issued “improperly burdens [defendant’s]

speech more than necessary”).2

2 In fact the very language of section 501.211 suggests enjoining the violating
behavior, rather than mandating behavior:

      (1) Without regard to any other remedy or relief to which a person is
      entitled, anyone aggrieved by a violation of this part may bring an
      action to obtain a declaratory judgment that an act or practice violates
      this part and to enjoin a person who has violated, is violating, or is
      otherwise likely to violate this part.

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      Finally, the order grants relief not pled. See Sunbeam Television Corp. v.

Mitzel, 83 So. 3d 865, 875 (Fla. 3d DCA 2012) (“[L]itigants at the outset of a suit

must be compelled to state their pleadings with sufficient particularity for a

defense to be prepared.” (quoting Arky, Freed, Stearns, Watson, Greer, Weaver &

Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988))); see

also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir. 1982) (confirming that

unplead issues tried without consent deny due process). Brown never alleged that

the solution to the identified misconduct—the forgery of her signature—was for

Bull Motors to provide all future customers with specific forms regarding

financing approval. That solution was only suggested by counsel at the first non-

evidentiary hearing.     Brown certainly never pled entitlement to a permanent

mandatory injunction which would specify the exact language Bull Motors would

be required to use in all future sales contracts.

      In fact, Bull Motors’ counsel explained to the court at one of the non-

evidentiary hearings that since 2011 it consistently had been presenting its

customers (a) with a Spot Delivery Agreement which notified customers that their

attempted purchases were subject to third party financing and that the vehicle

being purchased had to be returned if the purchaser was not successful in obtaining

third party financing; and, (b) where financing failed, with a Cancellation Notice

§ 501.211, Fla. Stat. (2013).


                                           9
advising customers that their application for financing had been denied and that

they had the option of cancelling the transaction or entering into a new financing

contract.   While the trial court summarily dismissed these Spot Delivery

Agreements and Cancellation Notices as suitable only for a “gnat” (referring to the

size of the print), as Bull Motors argues “the two forms . . . exceed all requirements

of Florida and federal law”3 and contain all the disclosures delineated in the ex

parte permanent injunction imposed on Bull Motors by the trial court.4

      We therefore reverse and remand with directions to vacate the permanent

injunction and for an evidentiary hearing before any permanent injunctive relief is

ordered.




3 See generally C.B. v. Dobuler, 997 So. 2d 463, 466 (Fla. 3d DCA 2008) (“It is
not for us, as judges, to question the wisdom of the legislation.” (quoting K.E. v.
Dep’t of Juvenile Justice, 963 So. 2d 864, 868 (Fla. 1st DCA 2007)).
4 By failing to hold an evidentiary hearing before issuing the injunctive relief as
written, Bull Motors was not given the opportunity to provide evidentiary support
for its position that the existing forms better addressed industry standards, and that
the proposed language provided by opposing counsel and adopted by the court
would result in redundancy, inconsistency, and increased customer confusion.

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