       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 31, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1951
                         Lower Tribunal No. 11-41471
                             ________________


                   Michael Fernando Sierra Miranda,
                                    Appellant,

                                        vs.

     Pacheco Entertainment Production Enterprises, Inc., etc.,
                                    Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Eric William Hendon, Judge.

      The Hachar Law Firm, P.A., and Cody Pellicer and Pierre Hachar, Jr.;
Acosta & Diaz, LLC, and Madeline M. Acosta and Christina K. Diaz, for
appellant.

     Richard J. Diaz, P.A., and Richard J. Diaz, for appellee.


Before LOGUE, SCALES and LUCK, JJ.

     SCALES, J.
      The defendant below, Michael Fernando Sierra Miranda, appeals the trial

court’s post-judgment order denying Miranda’s motion to dissolve a permanent

injunction. We affirm because, under the unique procedural facts of this case, the

trial court did not abuse its discretion by refusing to dissolve the injunction.

                                         Facts

      The facts are not in dispute. In October 2011, Miranda, a Cuban national

performing artist, entered into an agreement with appellee, plaintiff below,

Pacheco Entertainment Production Enterprises, Inc. (“Pacheco”). Pursuant to the

agreement, Miranda agreed to engage in no “performance activity” without the

prior written consent of Pacheco. In return, Pacheco was obligated to pay Miranda

for Miranda’s “performance activity,” to arrange his “performance activity” and to

distribute Miranda’s recordings. The agreement defined “performance activity” as

follows:

      For purposes of this Agreement, the phrase “Performance Activity”
      shall include, without limitation, any use of Artist’s talents and
      activities throughout the entertainment industry, including but not
      limited to live performance(s), the production of phonograph records,
      performances contained on phonograph records and mechanical or
      electrical transcriptions, record sales, musical composition and
      publishing, television, motion pictures, internet, radio, stage, concerts,
      tours, nightclubs, hotels and personal appearances of all kinds,
      merchandising and commercial endorsements, product tie-ins of all
      types, and from the sale, lease, license or other disposition of visual,
      literary, audio-visual, dramatic and/or musical material or productions
      for use in any medium of communication or entertainment, whether
      now known or hereafter invented, and from any and all allied, kindred
      or other fields of entertainment or endeavor (including, but not limited


                                           2
         to, cable television, pay-per-view television, internet, downloads,
         audio-visual devices, etc.) in which Artist may be or become
         professionally engaged.

         In early December 2011, Pacheco learned that Miranda was going to be

performing live at a Miami club at a Christmas Eve event not coordinated by

Pacheco. Unable to resolve the matter with Miranda’s representative, Pacheco

filed a verified complaint against Miranda in the Miami-Dade circuit court seeking

both temporary and permanent injunctive relief (in Count I) and damages for

breach of contract (in Count II).1 Pacheco also filed an emergency motion to enjoin

Miranda from performing at the local club.

         At a December 19th hearing, the trial court entered a temporary injunction

against Miranda. The trial court’s injunction enjoined Miranda from performing at

any entertainment event—including the Christmas Eve event—without either the

express written consent of Pacheco or further order of the court. Miranda did not

seek rehearing or appeal the trial court’s December 19th temporary injunction

order.

         In January 2012, Miranda filed a motion seeking to dismiss Pacheco’s

verified complaint. Miranda’s dismissal motion asserted that the action should be


1 Pacheco’s verified complaint also contained a claim alleging that those hiring
Miranda intentionally interfered with Pacheco’s business relationship with
Miranda. It appears that Pacheco never effected service of process on those
defendants. In any event, those claims and those defendants are not involved in
this appeal.

                                          3
dismissed for lack of personal jurisdiction; the motion also argued that Pacheco

had failed to join an indispensable party. The trial court denied the motion.

         Very little took place in the case until almost three years later when, in

March 2015, Pacheco filed a motion in the trial court seeking to compel Miranda

to answer its complaint. The trial court entered an order in April 2015, directing

Miranda to answer the complaint within twenty days. The trial court’s order

warned that if Miranda failed to timely answer the complaint Pacheco would be

entitled to an automatic default final judgment without the need of further court

hearing.

         Miranda did not file an answer, and, in May 2015, the trial court entered an

order which it characterized as a default final judgment as to Pacheco’s injunction

count (“May 2015 Injunction”). Specifically, the May 2015 Injunction enjoined

Miranda from, among other things, “public appearances and performances of any

type . . . without [Pacheco’s] prior written consent, all of which is in accordance

with the written contract . . . .”2,3

2   Paragraph 2 of the May 2015 Injunction reads, in its entirety, as follows:

         [P]ursuant to Count I of the complaint, the Defendant Michael
         Fernando Sierra [Miranda] is enjoined from public appearances and
         performances of any type, shall not appear on or in or participate in
         any way in connection with studio recordings, radio, internet or
         wireless services, website application or platform, print media, live
         performance or personal appearance, commercials or other
         endorsements, merchandising, or any other media platform or
         application or services now knowns [sic] or hereafter devised, or

                                            4
      Miranda did not seek rehearing or appeal the May 2015 Injunction. Rather,

five months after its entry, Miranda filed a motion pursuant to Florida Rule of Civil

Procedure 1.540, requesting the court to vacate the May 2015 Injunction.

Miranda’s Rule 1.540 motion asserted that the May 2015 Injunction was void

because: (i) it was entered without notice; and (ii) the parties’ underlying

agreement purportedly violated federal law, which generally prohibits contracts

with foreign nationals for the transfer of property. See 31 C.F.R. § 515.201(b).

      The court denied Miranda’s Rule 1.540 motion. While Miranda appealed

the trial court’s denial of his Rule 1.540 motion, he voluntarily dismissed that

appeal within a week of filing the notice of appeal.

      In March 2016, Pacheco filed a motion requesting the trial court to find

Miranda in contempt of the May 2015 Injunction. Miranda filed a response in

May 2016, and also moved to dissolve the May 2015 Injunction. In his May 2016

response, Miranda, for the first time, asserted that the May 2015 Injunction was

unauthorized because it purported to enforce, via injunction, a personal services


      perform any performance activity without Plaintiff’s prior written
      consent, all of which is in accordance with the written contract
      between Plaintiff and Defendant and which is attached as an Exhibit
      to the Verified Complaint.
3 Notwithstanding the trial court characterizing the May 2015 Injunction as a
“default final judgment,” it is probably more accurately characterized as a partial
final judgment because it reserved jurisdiction to adjudicate Pacheco’s related
breach of contract claim against Miranda.

                                          5
contract in contravention of Montaner v. Big Show Productions, S.A., 620 So. 2d

246 (Fla. 3d DCA 1993).

      In July 2016, the trial court held a hearing on the parties’ motions. Prior to

the hearing, on June 6, 2016, Pacheco voluntarily dismissed its breach of contract

claim (count II of its Verified Complaint) against Miranda, pursuant to Florida

Rule of Civil Procedure 1.420(a)(1).4 In August 2016, the trial court entered an

order granting Pacheco’s motion for contempt finding that Miranda had willfully

violated the May 2015 Injunction, and that Miranda owed Pacheco damages in an

amount equal to what Pacheco would have been paid had Miranda honored the

terms of his written contract. At the July 2016 hearing, the trial court made no

comments regarding whether the May 2015 Injunction violated the dictates of

Montaner, and, via separate order, the trial court summarily denied Miranda’s

motion to dissolve the May 2015 Injunction. Miranda appeals only the trial court’s

denial of his motion to dissolve the May 2015 Injunction.

                                     Analysis

4  Arguably, Pacheco’s June 2016 voluntary dismissal of its breach of contract
claim—its only unadjudicated claim still pending against Miranda—“converted”
the trial court’s May 2015 Injunction into a final judgment. Indeed, following
Pacheco’s voluntary dismissal of the breach of contract claim, the trial court’s only
remaining judicial labor in this case as to Miranda related solely to matters
involving enforcement of the injunction. Thus, as discussed more fully below,
Pacheco’s June 2016 voluntary dismissal probably provided Miranda with yet
another opportunity to appeal the May 2015 Injunction—this time as a final
judgment.


                                         6
      We review the trial court’s denial of Miranda’s motion to dissolve the May

2015 Injunction for abuse of discretion. See Simonik v. Patterson, 752 So. 2d 692,

692-93 (Fla. 3d DCA 2000) (“The trial court has broad discretion in granting,

denying, dissolving, or modifying injunctions, and, unless a clear abuse of

discretion is demonstrated, appellate courts will not disturb the trial court’s

decision.”). The unique issue before this Court is whether a trial court abuses its

discretion in failing to dissolve a permanent injunction manifested in a final

judgment upon a showing that the entry of the injunction was the result of clear

legal error, notwithstanding that no change in circumstances occurred since the

entry of the permanent injunction.5

      We begin our analysis by noting that the trial court’s May 2015 Injunction—

prohibiting Miranda from engaging in any performance activities absent the prior

written consent of Pacheco—may very well be the result of legal error. See

Montaner, 620 So. 2d at 248. The May 2015 Injunction specifically states that it is

entered in accordance with the parties’ written personal services contract.

Injunctive relief is not available to enjoin a breach of a personal services contract;

a party aggrieved by a breach of such a contract is limited to recovery of damages.



5 At oral argument, Miranda’s counsel suggested that Miranda’s retaining a lawyer
familiar with this Court’s Montaner opinion constituted a sufficient change in
circumstances to warrant review of the trial court’s final injunction order. Without
further elaboration, we disagree.

                                          7
Id. Yet, Miranda did not raise this issue until a year after the May 2015 Injunction

was entered.

       In this case, we are not reviewing any legal error associated with the entry of

the trial court’s May 2015 Injunction. Nor are we reviewing an interlocutory trial

court order relating to a temporary injunction entered simply to maintain the status

quo.   Rather, we are reviewing the trial court’s consideration and denial of

Miranda’s post-judgment motion seeking to dissolve a permanent injunction

manifested in a final judgment. Thus, the unique procedural posture of this case

requires us to weigh two compelling, yet competing, judicial axioms: finality in

litigation versus correction of legal error.

       We are mindful that the Florida Supreme Court has recently made clear that,

irrespective of changed circumstances, a trial court abuses its discretion by not

dissolving a temporary injunction where a party can demonstrate that the

temporary injunction was entered as a result of “clear legal error or

misapprehension of facts on the part of the trial court.” Planned Parenthood of

Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918, 925-26 (Fla. 2017).

Nothing in the MMB Properties opinion, however, can be read to extend its

rationale to permanent injunctions, such as the instant one, manifested in a final

judgment.




                                               8
      Similarly, while it is well settled that a trial court necessarily retains

jurisdiction to modify a permanent injunction when changed circumstances make it

equitable to do so, see Hale v. Miracle Enters., 517 So. 2d 102, 103 (Fla 3d DCA

1987), it is equally well settled that the trial court exercises such jurisdiction only

if the party seeking to dissolve the injunction establishes a change in

circumstances. Elias v. Steele, 940 So. 2d 495, 497 (Fla. 3d DCA 2006) (“An

individual seeking to modify or dissolve an injunction must establish that the

circumstances justifying the injunction have changed so that the terms of the

injunction are no longer equitable.”); see also Reyes v. Reyes, 104 So. 3d 1206,

1207 (Fla. 5th DCA 2012) (holding that a party seeking to dissolve a domestic

violence injunction must allege a change in circumstances, not merely challenge

the original issuance of the injunction); Simonik, 752 So. 2d at 693 (concluding the

trial court did not abuse its discretion in refusing to vacate a permanent injunction

absent a change in circumstances).

      Miranda has provided us no authority for the proposition that a trial court

continues to exercise jurisdiction to modify or vacate a permanent injunction,

simply because of legal error, without any change in circumstances.

      We note that Miranda could have challenged the merits of the December

2014 temporary injunction either by requesting a rehearing within fifteen days of

its entry,6 or by appealing that temporary injunction as a non-final order within



                                          9
thirty days of its rendition.7 Similarly, Miranda could have challenged the May

2015 Injunction by seeking rehearing, by appealing it as a non-final order, or by

appealing it within thirty day days of Pacheco’s voluntary dismissal of its breach

of contract claim, i.e., when the May 2015 Injunction became a final judgment.8

      At the July 2016 hearing, the trial court lacked jurisdiction to entertain

Miranda’s contention that the May 2015 Injunction is “simply wrong as a matter of

law on the merits”; that challenge should have been raised under a timely Rule

1.530 motion or on plenary appeal. Balmoral Condo. Ass’n v. Grimaldi, 107 So.

3d 1150, 1152 (Fla. 3d DCA 2013); see also Curbelo v. Ullman, 571 So. 2d 443,

444 (Fla. 1990).

      The rules prescribing the procedural mechanisms for challenging judicial

orders, judgments and decrees promote finality in litigation. See Balmoral, 107

So. 3d at 1151 (“The importance of finality in any justice system . . . cannot be

understated. It has long been recognized that, for several reasons, litigation must,

at some point, come to an end.” (quoting Witt v. State, 387 So. 2d 922, 925 (Fla.

1980))). Notwithstanding the merits of Miranda’s most recent challenge to the

May 2015 Injunction, we cannot cast aside Florida’s requirements of judicial

finality, nor expand the limited nature of the trial court’s post-judgment


6 See Fla. R. Civ. P. 1.530(b)
7 See Fla. R. App. P. 9.130(a)(3)(B)
8 See Fla. R. App. P. 9.130(h) and footnote four, supra.



                                         10
jurisdiction. See Bank One, Nat’l Ass’n v. Batronie, 884 So. 2d 346, 348 (Fla. 2d

DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction

over the case except to enforce the judgment and except as provided by rule

1.540.”); Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1388-89

(Fla. 3d DCA 1986) (“The trial court’s authority to modify, amend, or vacate an

order or final judgment after rendition of the final judgment is limited to the time

and manner provided by rule or statute.”) (footnote omitted).

                                    Conclusion

      Therefore, under the unique facts of this case, we are compelled to affirm

the trial court’s denial of Miranda’s motion seeking to dissolve the May 2015

Injunction.

      Affirmed.




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