Filing # 147666289 E-Filed 04/13/2022 11:11:48 PM

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 2022-06722-CA-01

CITY OF CORAL GABLES,

Plaintiff,
v.
CORAL GRAND, LLC, and
CORAL GABLES ATHLETIC CLUB, LP,
Defendants,
_____________________________/

EMERGENCY MOTION TO DISSOLVE ex parte TEMPORARY INJUNCTION

APPOINTING RECEIVER

Defendants CORAL GRAND, LLC and CORAL GABLES ATHLETIC CLUB, LP

(“Defendants”), by and through undersigned counsel, hereby move to dissolve the

ex parte Receivership improperly obtained by the Plaintiff, and in support state:

“The theory of the Communists may be summed up

in a single sentence: abolition of private property.”
Karl Marx
 INTRODUCTION

Undersigned counsel is going to be blunt- in almost thirty years of practice I have never

seen such a blatant attempt to misuse the Court as Plaintiff’s corrupt effort to steal

Defendant’s private property.

American citizens do not normally have to be worried about government officials

obtaining secret orders in the middle of the night to seize their private property.

But that is exactly what happened last night (April 12, 2022) at 7:46 pm, when Plaintiff

was somehow able to get Judge Carlos Lopez, the Miami-Dade County Judge assigned

to after-hours duty, to sign the ex parte Order attached as Exhibit A in the middle of

the night (the ex parte Order does not appear on the docket).

And this morning, in violation of Florida law and the due process constitutional

protections in the U.S. and Florida constitutions, the City government of Coral Gables

with the assistance of Miami-Dade police officers threw Defendants’ representatives off

the property and seized Defendants’ private property (and even its bank accounts)

without a hearing or even a chance to respond. This despite the fact that the parties

entered into a Settlement Agreement that gives possession of the premises to

Defendants until April 30.

Of course, none of this is legal. “Shocks the conscious” is often misused, but here it is

an understatement. And to add insult to injury, the Plaintiff misrepresented facts to

the Court in an ex parte Motion filled with libelous untruths.

2
The Fifth Amendment to the U.S. Constitution and Article 1, Section 9 of the Florida

Constitution both state: “No person shall be deprived of life, liberty, or property

without due process of law.”

The ex parte temporary injunction appointing receiver must be dissolved because it

violates the Florida Rules of Civil Procedure, well-settled Florida case law, and

Defendant’s core due process and property rights under the Florida and United States

SEIZING PROPERTY WITHOUT DUE PROCESS OF LAW

The Florida Supreme Court “has recognized that “[p]roperty rights are among the basic

substantive rights expressly protected by the Florida Constitution.” Department of Law

Enforce. v. Real Property, 588 So.2d 957, 964 (Fla.1991).

The right to procedural due process includes the right to “a full hearing before a court

having jurisdiction of the matter, the right to introduce evidence at a meaningful time

and in a meaningful manner, and judicial findings based upon that evidence.” Brinkley

v. County of Flagler, 769 So.2d 468, 472 (Fla. 5th DCA 2000). In State Dep't of Fin.

Servs. v. Branch Banking & Trust Co., 40 So.3d 829, 833 (Fla. 1st DCA 2010) (quoting

Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007)) the Court

stated:

[T]he constitutional guarantee of due process requires that each litigant be

given a full and fair opportunity to be heard. The right to be heard at an
evidentiary hearing includes more than simply being allowed to be present
and to speak. Instead, the right to be heard includes the right to introduce
evidence at a meaningful time and in a meaningful manner. It also
includes the opportunity to cross-examine witnesses and to be heard on

3
 questions of law. The violation of a litigant's due process right to be heard
requires reversal. Id.

Under the guise of asking the Court to enter a temporary injunction appointing a

receiver on an ex parte basis, Plaintiff’s motion set forth pages of irrelevant, scandalous,

and hearsay material, much of which is libelously untrue, in an unethical and illegal

attempt to convince the Court to enter an ex parte Order that is contrary to the Rules of

Florida Procedure, Florida law and the U.S. and Florida Constitutions.

VIOLATION OF THE FLORIDA RULES OF CIVIL PROCEDURE

The ex parte Motion filed by Plaintiff states that “pursuant to Florida Rule of Civil

Procedure 1.620(a), the City respectfully seeks either an immediate hearing or an

expedited order without a hearing.”1

But the Plaintiff failed to do what the Rule says and the ex parte Order violates the

express requirements of Fla. R. Civ. P. 1.610 because:

1. Plaintiff’s attorney failed to “certify in writing any efforts that have been

made to give notice and the reasons why notice should not be required”;

and

2. The ex parte Order is (a) not “endorsed with the date and hour of entry”; and

does not “give the reasons why the order was granted without notice if notice

was not given.”

1
Plaintiff’s 4/12/22 Motion page 14 [DE3]

4
Fla. R. Civ. P. 1.610 provides:

Rule 1.610 – INJUNCTIONS

(a)Temporary Injunction.

(1) A temporary injunction may be granted without written or oral notice to

the adverse party only if:

(A) it appears from the specific facts shown by affidavit or verified

pleading that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and

(B) the movant's attorney certifies in writing any efforts that have
been made to give notice and the reasons why notice should not be
required.

(2) No evidence other than the affidavit or verified pleading shall be used
to support the application for a temporary injunction unless the adverse
party appears at the hearing or has received reasonable notice of the
hearing. Every temporary injunction granted without notice shall be
endorsed with the date and hour of entry and shall be filed forthwith in the
clerk's office and shall define the injury, state findings by the court why the
injury may be irreparable, and give the reasons why the order was granted
without notice if notice was not given. The temporary injunction shall
remain in effect until the further order of the court.

5
Importantly, the dispute between the parties has been going on for over a year and was

settled pursuant to a Settlement Agreement. As a result, there is no emergency

whatsoever.

In fact, the last email exchange between Defendants and Plaintiff, just hours before the

Plaintiff filed its ex parte Motion misrepresenting that there was an emergency, shows

that Defendants intended to fully comply with the Settlement Agreement entered into

between the parties:

From: Nick Di Donato <[email protected]>

Date: April 12, 2022 at 5:54:58 PM EDT
To: "Sardinas, Zeida" <[email protected]>
Cc: Anthony Di Donato <[email protected]>, "Iglesias,
Peter" <[email protected]>, "Parjus, Alberto"
<[email protected]>, "Ramos, Miriam" <[email protected]>,
Juan Rodriguez Coral Gables Lawyer <[email protected]>
Subject: Re: CG Country Club
Zeida

I did not hear back from you on this matter and want to understand the City’s
position on this matter. We would like a smooth and amicable transition and want
to confirm we are able to start removing the chattels and equipment listed on our
settlement agreement commencing May 1, 2022.

I would appreciate a response so that we may start our preparations. Thank

you.
Regards
Nick Di Donato Cav.,P.Eng.,BaSc.
President & CEO
Liberty Entertainment Group

Toronto | Miami
website I facebook | Instagram @nick_libertygroup
Toronto: Casa Loma | BlueBlood SteakHouse |Don Alfonso 1890 |
Liberty Grand | Cibo Wine Bar King West | Cibo Wine Bar Yonge Street | Cibo
Wine Bar Yorkville | Xango| Arcane Nightclub

Miami: Coral Gables Country Club | CG Athletic Club | Liberty Caffe

6
The truth is that Plaintiff misrepresented to the Court that there was an emergency.

FLORIDA CASE LAW PROHIBITS THE COURT’S ORDER

Even if Plaintiff had complied with the Florida Rules of Civil Procedure (it did not), and

even if the ex parte Order was not a violation of Defendants’ due process rights (it is),

the Court’s ex parte Order is contrary to well-settled Florida Law.

Plaintiff’s Motion (without any affidavits) sets forth pages of irrelevant, scandalous, and

hearsay material, much of which is libelously untrue, in an unethical attempt to convince

this Honorable Court to enter an Order that is contrary to well-settled Florida law.

It is well settled in Florida, that a court cannot take action to prevent a party from using

or disposing of assets prior to the conclusion of a legal action. See Briceno v. Bryden

Investments, Ltd., 973 So. 2d 614 (Fla. 3d DCA 2008); Pianeta Miami, Inc. v.

Lieberman, 949 So. 2d 215, 217 (Fla. 3d DCA 2006) ("It is well settled that an injunction

cannot be used to restrain the use of a party's unrestricted assets prior to the conclusion

of an action at law."); Weinstein v. Aisenberg, 758 So. 2d 705, 706 (Fla. 4th DCA 2000)

("Even where the party seeking injunctive relief alleges that the opposing party may

dissipate bank assets, a judgment for money damages is adequate and injunctive relief

is improper, notwithstanding the possibility that a money judgment will be

uncollectible."); Lawhon v. Mason, 611 So. 2d 1367, 1368 (Fla. 2d DCA 1993) ("An

injunction cannot be used to enforce money damages or prevent a party from disposing

of assets prior to the conclusion of an action at law."); Kanover Realty Assocs., Ltd. v.

Mladen, 511 So. 2d 705, 706 (Fla. 3d DCA 1987) ("It is entirely settled by a long and

unbroken line of Florida cases that in an action at law for money damages, there is

7
simply no judicial authority for . . . any restraint upon the use of a defendant's

unrestricted assets prior to the entry of judgment.").2

CONCLUSION

Defendants need this Court’s help to stop Plaintiffs from stealing their process without

due process of law and in violation of the Florida Rules of Civil Procedure and Florida

case law.

RELIEF REQUESTED

Defendants respectfully request:

1. An Order quashing the ex parte Order appointing receiver;

2. An Order to Show Cause why Plaintiff City of Coral Gables and its counsel

should not be held in contempt of court for orchestrating the theft of Defendant’s

property in violation of this Court’s rules of procedure, Florida law and the U.S.

and Florida Constitutions; and

3. Award Defendants their attorneys fees for bringing this Emergency Motion.

Respectfully submitted,
_____s/davidwinker/______
David J. Winker, Esq., B.C.S
Fla. Bar. No. 73148
David J. Winker, PA
4720 S. LeJeune Rd.
Coral Gables, Fl 33146
305-801-8700
[email protected]

2
The cases are attached as Exhibit B to this Motion.
8
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

electronically via the Florida Courts E-filing Portal upon all parties listed on the Service

List for this case on this 13th day of April, 2022.

_____s/davidwinker/______
David J. Winker, Esq., B.C.S
Fla. Bar. No. 73148

9
EXHIBIT A
EXHIBIT B

1
 Brice&#241;o v. Bryden Investments, Ltd., 973 So.2d 614 (Fla. App., 2008)

973 So.2d 614 the $2,000,000 in the Wachovia account,

Douglas A. BRICEÑO, Appellant, pending resolution of his constructive trust
v. claim.
BRYDEN INVESTMENTS, LTD.,
Appellee. The trial court granted Briceño's request
No. 3D07-1948. for a temporary injunction, preventing the
District Court of Appeal of Florida, transfer or dissipation of, the $2,000,000 in
Third District. the Wachovia account.
January 23, 2008.
[973 So.2d 616]
[973 So.2d 615]
Thereafter, the trial court also granted
Garbett, Stiphany, Allen & Roza, and Briceño's Motion for Final Default Judgment,
Philip A. Allen, III, Miami, for appellant. imposing an equitable lien and constructive
trust on the $2,000,000 in favor of Bricerio,
Tew Cardenas LLP, and Joseph A. and awarding prejudgment interest and costs
DeMaria, Matias R. Dorta, and Maria N. in the amount of $136,420.38 to Bricerio.
Vernace, Miami, for appellee. Moreover, the Final Default Judgment
dissolved the temporary injunction as moot.
Before WELLS, ROTHENBERG, and As required by the Final Default Judgment,
SALTER, JJ. Wachovia transferred the $2,000,000 to
Briceño.
ROTHENBERG, Judge.
Following the transfer of the $2,000,000
The plaintiff, Douglas A. Briceño to Briceño, the trial court granted Bryden's
("Briceño"), appeals from a non-final order motion to vacate the Final Default Judgment,
denying his motion for temporary injunction. and ordered Briceño to deposit into thecourt's
We affirm, registry the $2,000,000 plus interest that
accrued while Briceño had possession of the
Briceño filed suit against Bryden $2,000,000.1
Investments, Ltd. ("Bryden"), a Cayman
Islands corporation, seeking, in part, the After the Final Default Judgment was
imposition of a constructive trust and vacated, Bryden filed a Motion for Immediate
equitable lien on $2,000,000 held in an Disbursement of Interest, seeking release of
account at Wachovia Securities, LLC $136,164.38 that remained in the Wachovia
("Wachovia"). The amended complaint alleges account. Bryden scheduled its motion for July
as follows. As part of a transaction to purchase 5, 2007, and two days before the scheduled
Venezuelan bonds through an investment hearing, Briceño delivered a "Motion to
broker, Bricerio, as instructed, wired a total of Reinstate Temporary Injunction Over Interest
$2,000,000 to "First Clearing LLC, Account Proceeds Accruing on Enjoined Funds"
Number 5050000000631 forfurther credit to ("Motion for Temporary Injunction Over
Bryden Inv. Inc. [Bryden Inc.], Account Interest Proceeds"), requesting that the trial
Number 1842 7051." Briceño never received court enjoin the release of the accrued interest
the bonds, and he later learned that Bryden in the Wachovia account, pending thelitigation
Inc. does not exist, and that Wachovia account of its constructive trust claim.
# 1842 7051 belongs to Bryden. In addition to
the amended complaint, Briceño filed an ex Following the July 5, 2007 hearing, on
parte motion for temporary injunction, July 10, 2007, the trial court granted Bryden's
seeking to preserve Motion for Immediate Disbursement of

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 Brice&#241;o v. Bryden Investments, Ltd., 973 So.2d 614 (Fla. App., 2008)

Interest, authorizing Wachovia to disburse the 1367, 1368 (Fla. 2d DCA 1993) ("An
accrued interest, which now totaled injunction cannot be used to enforce money
$154,000. The trial court also granted damages or prevent a party from disposing of
Briceño's request for a stay. Thereafter, onJuly assets prior to the conclusion of an action at
18, 2007, the trial court denied Briceño's law."); Kanover
Motion for Temporary Injunction Over
Interest Proceeds, subject to the stay [973 So.2d 617]
provision of the July 10, 2007 order. This non-
final appeal followed. Realty Assocs., Ltd. v. Mladen, 511 So.2d 705,
706 (Fla. 3d DCA 1987) ("It is entirely settled
In this non-final appeal, Briceño argues by a long and unbroken line of Florida cases
that the trial court abused its discretion by that in an action at law for money damages,
denying his Motion for Temporary Injunction there is simply no judicial authority for ... any
Over Interest Proceeds, as the accrued interest restraint upon the use of a defendant's
is part of the res of the constructive trust. We unrestricted assets prior to the entry of
disagree. judgment.") (footnote omitted).

"A trial court has wide discretion to grant An exception to this general rule,
or deny a temporary injunction and an however, is that a trial court may enter a
appellate court will not interfere with the pretrial injunction to protect the res of a
exercise of such discretion unless the party constructive trust. See Blecher v. Dreyfus
challenging the grant or denial clearly shows Brokerage Servs., Inc., 770 So.2d 1276, 1277
an abuse of that discretion." Perry & Co. v. (Fla. 3d DCA 2000) (holding that injunctive
First Sec. Ins. Underwriters, Inc., 654 So.2d relief is "appropriate to protect the res in a
671, 671 (Fla. 3d DCA 1995); see also Cohen claim for constructive trust"); Castillo v.
Fin., LP v. KMC/EC LLC, 967 So.2d 224, 226 Vlaminck de Castillo, 701 So.2d 1198, 1199
(Fla. 3d DCA 2007) ("In reviewing a trial (Fla. 3d DCA 1997) ("[W]e reassert the
court's ruling on a request for a temporary appropriateness of injunctive relief to protect
injunction, we must affirm unless the pendente lite what is asserted to be the res of
appellant establishes that the trial court a trust implied by operation of law."); Korn v.
committed a clear abuse of discretion."). Ambassador Homes, Inc., 546 So.2d 756, 757
(Fla. 3d DCA 1989) (holding that "a temporary
In Florida, an injunction cannot be injunction lies to freeze the res of an alleged
entered to prevent a party from using or constructive trust upon a showing
disposing of his assets prior to the conclusion ... that the res is in a probable danger of
of a legal action. See Pianeta Miami, Inc. v. dissipation and that there is a reasonable
Lieberman, 949 So.2d 215, 217 (Fla. 3d DCA likelihood of success on the merits withrespect
2006) ("It is well settled that an injunction to the constructive trust claim").
cannot be used to restrain the use of a party's
unrestricted assets prior to the conclusion of In the instant case, contrary to Briceño's
an action at law."); Weinstein v. Aisenberg, argument, the res of the alleged constructive
758 So.2d 705, 706 (Fla. 4th DCA 2000) trust is limited to the $2,000,000, and does
("Even where the party seeking injunctive not include interest that accrued while the res
relief alleges that the opposing party may was in Bryden's possession in the Wachovia
dissipate bank assets, a judgment for money account. We acknowledge that if Briceño
damages is adequate and injunctive relief is prevails on the merits, not only would he be
improper, notwithstanding the possibility that entitled to recover the $2,000,000 res, but he
a money judgment will be would be entitled to prejudgment interest and
uncollectible."); Lawhon v. Mason, 611 So.2d costs. However, Briceño is not entitled to
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 Brice&#241;o v. Bryden Investments, Ltd., 973 So.2d 614 (Fla. App., 2008)

injunctive relief to protect the accrued interest Affirmed.

in order to ensure the collection of the
prejudgment interest and costs. Therefore, we ---------------
conclude that, on the merits,the trial court
did not abuse its discretion by denying Notes:
Briceño's Motion for Temporary Injunction
1. This order was stayed, and Briceño remains
Over Interest Proceeds.
in possession of the $2,000,000.
Briceño also argues that this Court must
---------------
reverse the order denying his motion for
temporary injunction because the trial court
failed to specify its reasons for denying the
motion. We disagree.

Florida Rule of Civil Procedure 1.610(c),

titled "Form and Scope," provides as follows:

Every injunction shall specify the reasons

for entry, shall describe in reasonable detail
the act or acts restrained without reference to
a pleading or another document, and shall be
binding on the parties to the action, their
officers, agents, servants, employees, and
attorneys and on those persons in active
concert or participation with them who receive
actual notice of the injunction.

(Emphasis added). Pursuant to rule

1.610(c), a trial court "shall specify" thereasons
for its decision only when it enters an
injunction. See E.S. Thomas & Assocs., Inc. v.
Powell, 827 So.2d 396, 397 (Fla. 2d DCA
2002) ("We recognize that trial courts are
required to, specify the reasons for their
decisions only when temporary injunctions are
granted. Fla. R. Civ. P. 1.610(c). However, it
would have been easier to assess the
correctness of the trial court's order [denying
the temporary injunction] if some explanation
had been provided."). Therefore, the trial
court's failure to specify its reasons for denying
Briceño's Motion for Temporary Injunction
Over Interest Proceeds does not warrant
reversal.

We do not address the remaining

arguments raised by Briceño as they lack
merit. Accordingly, we affirm the order under
review.

-3-
 Pianeta Miami, Inc. v. Lieberman, 949 So.2d 215 (Fla. App., 2006)

949 So.2d 215 purchasers of the hotel and could have

PIANETA MIAMI, INC., Appellant, prevented the fraud. Consequently, the sale of
v. the hotel was declared void, and possession of
Alan LIEBERMAN and Diane the hotel was returned to Pianeta.1 However,
Lieberman, Appellees. the trial court awarded the Liebermans a
No. 3D06-1025. judgment in the amount of $38,035.46,
District Court of Appeal of Florida, representing one year of property taxes they
Third District. paid while in wrongful possession of the hotel.
November 15, 2006.
Subsequently, the Liebermans moved for
[949 So.2d 216] relief from the final judgment awarding them
unjust enrichment damages, claiming that
Arnstein & Lehr and Franklin Zemel and Pianeta had misled the trial court. The
John M. Cooney, Ft. Lauderdale, for appellant. Liebermans alleged that Pianeta's president
provided false or misleading testimony at the
Kluger, Peretz, Kaplan & Berlin and Alan unjust enrichment trial regarding the
J. Kluger, Michael S. Perse, and Jennifer T. existence of any contractual offers for the
Oslé, Miami, for appellees. hotel. Specifically, the Liebermans claimed
that Pianeta's president testified that he did
Before WELLS, CORTIÑAS, and not have any serious proposals to buy the
ROTHENBERG, JJ. hotel, although they claim he had an executed
contract to sell the hotel for $5,000,000.
CORTIÑAS, Judge.
While their motion for relief from final
The petitioner, Pianeta Miami, Inc. judgment was still pending, the Liebermans
("Pianeta"), appeals from a non-final order also filed an emergency motion for an order
denying Pianeta's motion to release funds in requiring Pianeta to deposit $500,000 from
escrow. Because the non-final order the proceeds of the upcoming sale of the hotel
unjustifiably restrains Pianeta's assets that into an escrow account. On May 4, 2005, the
exceed the amount of the final judgment and trial court granted the order. Pianeta did not
applicable prejudgment interest, it constitutes appeal the order and, instead, deposited the
an improper injunction. We reverse. funds in escrow.

This appeal arises out of litigation over the [949 So.2d 217]
fraudulent sale of Pianeta's hotel, the Angler
Hotel ("hotel"), to the respondents, Alan and In May 2005, the trial court also ordered
Diane Lieberman ("the Liebermans"). In a new trial on the Liebermans' unjust
December 2002, Pianeta brought an ejectment enrichment claim based on the likelihood that
action against the Liebermans, claiming that Pianeta's president perpetrated a fraud on the
the agent responsible for selling the hotel court. Thereafter, the trial court conducted a
fraudulently stole Pianeta's corporate identity new trial on the Liebermans' unjust
and sold the hotel to the Liebermans without enrichment claim and issued a final order,
Pianeta's consent. The Liebermans also reimbursing the Liebermans $167,355.74
brought a counterclaim for unjust enrichment ("the new final judgment"), excluding
damages based on certain payments they prejudgment interest, for their expenditures
made whilein possession of the hotel. A jury on the hotel. Immediately, the Liebermans
found that the Liebermans were not bona fide filed a motion for additur or rehearing on the

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 Pianeta Miami, Inc. v. Lieberman, 949 So.2d 215 (Fla. App., 2006)

new final judgment and a motion for Distrib., Inc. v. Resolution Trust Co., 593
determination of prejudgment interest. So.2d 593, 594 (Fla. 3d DCA 1992); Oxford
Int'l Bank & Trust Ltd. v. Merrill Lynch,
On December 27, 2005, Pianeta filed a Pierce, Fenner & Smith, Inc., 374 So.2d 54, 56
motion for remittitur or rehearing to set off (Fla. 3d DCA 1979).
damages for its loss of use or "reasonable
rental value" of the hotel during the Here, the non-final order denying
Liebermans' wrongful possession period. On Pianeta's motion to release the funds that
January 9, 2006, the trial court denied exceed the new final judgment operates with
Pianeta's motion for remittitur or rehearing as the same purpose as the pre-trial injunction
well as the Liebermans' motion for additur or in Konover. However, unlike the order in
rehearing.2 On January 10, 2006, Pianeta Konover, the non-final order is not a pre-trial
amended its motion for remittitur or rehearing injunction requiring the deposit of the amount
to include a request to release the funds in in controversy into the registry of the court.
escrow that exceed the new final judgment. Konover, 511 So.2d at 706. Nevertheless, the
non-final order effectively restrains the use of
In March 2006, the trial court conducted Pianeta's unrestricted assets, the funds in
a hearing on the Liebermans' motion for escrow that exceed
determination of prejudgment interest and $167,355.74, plus prejudgment
Pianeta's motion to release the funds in
escrow. Subsequently, the court issued an [949 So.2d 218]
order granting the Liebermans prejudgment
interest on the amount they paid in property interest, pending the conclusion of the parties'
taxes during their wrongful possession period, appeals. Clearly, the amount in excess of the
and denying Pianeta's motion to release the new final judgment, plus prejudgment
funds in escrow. interest, remains disputed by the Liebermans
and, thereby, is being used to improperly
Pursuant to Rule 9.130(a)(3)(B) of the secure the collection of a greater award of
Florida Rules of Appellate Procedure, we money damages in the future. The
review this order as one granting an Liebermans' argument that Pianeta would
injunction.3 Konover Realty Assocs., Ltd. v. make the assets unreachable by leaving the
Mladen, 511 So.2d 705, 706 (Fla. 3d DCA country before this court concluded the
1987); see Ramos v. Stabinski & Funt, P.A., pending appeals certainly does not provide a
494 So.2d 298 (Fla. 3d DCA 1986). It is well legal basis for injunctive relief. See Konover,
settled that an injunction cannot be used to 511 So.2d at 705-06 (holding that the trial
restrain the use of a party's unrestricted assets court erred in entering an order requiring
prior to the conclusion of an action at law. seller to deposit $500,000 in escrow pending
Konover, 511 So.2d at 706; Leight v. Berkman, the outcome of the case, despite purchaser's
483 So.2d 476, 477 (Fla. 3d DCA 1986) claim that recovery may be impaired because
(citations omitted); Supreme Serv. Station seller was ill, and if he died, the money would
Corp. v. Telecredit Serv. Ctr., Inc.,424 So.2d be tied up in the estate).
844, 844 (Fla. 3d DCA 1982).
Furthermore, we have found that the We reject the Liebermans' contention
preservation of funds in a contingent claim that the order denying the release of the
for money damages does not constitute a escrowed funds was a sanction against Pianeta
sufficient basis for injunctive relief. See, e.g., for perpetrating a fraud on the court. It
Konover, 511 So.2d at 706; Leight, 483 So.2d appears from the May 4, 2005 orderrequiring
at 477; Ramos, 494 So.2d at 298; CMR Pianeta to deposit $500,000 in escrow that
the trial court was concerned
-2-
 Pianeta Miami, Inc. v. Lieberman, 949 So.2d 215 (Fla. App., 2006)

about the preservation of the integrity of the possession of property. Konover, 511 So.2d at
judicial system. However, to date, the trial 706 n. 2 (citation omitted).
court has not made any findings of fraud or
misconduct. Rather, it is clear from the record, ---------------
the trial court continued to restrain Pianeta's
funds after the new final judgment was issued
and prejudgment interest was determined,
because it was concerned about the potential
dissipation and/or future unavailability of the
assets from the sale of the hotel.

Moreover, we find the Liebermans'

alternative argument, that the trial court
improperly considered Pianeta's motion to
release the escrowed funds, is without merit.
In the May 4, 2005 order compelling Pianeta
to escrow the funds, the court stated that the
proceeds of the sale of the hotel would be
escrowed "pending further order of the court."
Here, it is of no consequence whether the
request was raised in an amendment to a
motion, a separate motion, or sua sponte by
the trial court. Indeed, the court entertained
the motion and unjustifiably denied the
release of Pianeta's unrestricted assets.

Reversed and remanded.

Notes:

1. The Liebermans appealed the final

judgment in Pianeta's favor quieting title and
granting ejectment. We affirmed the final
judgment. Lieberman v. Pianeta Miami, Inc.,
865 So.2d 662 (Fla. 3d DCA 2004).

2. The Liebermans appealed the denial of

their motion for additur or rehearing on the
final judgment. Currently, that appeal is
pending with this court.

3. In Konover, we noted that an order

requiring a court deposit may be reviewable
under Rule 9.130(a)(3)(C)(ii) of the Florida
Rules of Appellate Procedure, as one
determining the immediate right to the

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 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

758 So.2d 705 authorization by forging Aisenberg's signature

on the withdrawal authorization form.
Abraham WEINSTEIN a/k/a Abe Aisenberg further alleged that Chava
Weinstein and Chava Weinstein, Weinstein deposited the money in newly-
Appellant, opened bank accounts at Nationsbank, N.A.
v. and Washington Mutual Bank. The lower
Yoram AISENBERG, Appellee. court entered an ex parte injunction
prohibiting the two banks from allowing
No. 4D99-0279. withdrawal of those monies. The Weinsteins
appeal the injunction, arguing that the
District Court of Appeal of Florida, complaint failed to state a cause of action for
Fourth District. injunctive relief in that it did not set forth a
showing of irreparable harm, a clear legal
March 9, 2000.
right, an inadequate remedy at law, or that an
injunction would serve the public interest.
Additionally, appellants contend that the
order imposing the injunction failed to
[758 So.2d 706]
comply with the requirements of Florida Rule
Louise H. McMurray, Miami, and Stephens, of Civil Procedure 1.610 in that it did not make
Lynn, Klein & McNicholas, P.A., Fort the necessary findings to support an order
Lauderdale, for appellant. imposing an injunction and was not endorsed
with the date and time it was granted.
Victor K. Rones of Margulies and Rones,
An order granting injunctive relief lies
P.A., North Miami, and Kris E. Penzell,Miami,
within the sound discretion of the trial court
for appellee.
and will be affirmed absent an abuse of
PER CURIAM. discretion. Precision Tune Auto Care, Inc. v.
Radcliff, 731 So.2d 744 (Fla. 4th DCA 1999);
Appellants, Abraham and Chava Browning-Ferris Indus. of Florida, Inc. v.
Weinstein, appeal a non-final order Manzella, 694 So.2d 110, 112 (Fla. 4th DCA
temporarily enjoining their withdrawal of 1997). A party seeking temporary injunctive
funds at two nonparty banks. The injunction relief must demonstrate: (1)irreparable harm;
was entered soon after the appellee, Yoram (2) a clear legal right; (3) an inadequate
Aisenberg, filed a verified complaint against remedy at law; and (4) that the public interest
the Weinsteins for conversion, injunctive will be served. Oxford Int'l Bank and Trust,
relief, and unjust enrichment. We reverse. Ltd. v. Merrill, Lynch, etc., 374 So.2d 54 (Fla.
3d DCA 1979); Islandia Condominium, Inc. v.
Appellant, Abraham Weinstein, and Vermut, 438 So.2d 89 (Fla. 4th DCA 1983);
appellee, Yoram Aisenberg, are business Contemporary Interiors v. Four Marks, Inc.,
partners and shareholders in a foreign 384 So.2d 734 (Fla. 4th DCA 1980). We agree
corporation known as "Nitro Plastic with appellants that the appellee failed to meet
Technologies Ltd." The corporation the requirements for issuance of atemporary
maintained a bank account at the Union Bank injunction to prevent them from withdrawing
of Israel, on which both Weinstein and funds from the subject banks. The appellee has
Aisenberg were authorized signers. Aisenberg an adequate remedy at law, i.e., money
filed a verified complaint against Weinstein damages. A claim for money damages does
and his wife, Chava, alleging that the not provide a sufficient basis
Weinsteins withdrew $760,000 from the for injunctive relief. Hiles v. Auto Bahn Fed'n
corporate account without Aisenberg's
-1-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

Inc., 498 So.2d 997 (Fla. 4th DCA 1986). INCIDENT TO AN ACTION FOR
Even where the party seeking injunctive relief CONVERSION, MAY A TRIAL COURT
alleges that the opposing party may dissipate ISSUE AN INJUNCTION TO FREEZE
bank assets, a judgment for money damages ASSETS OF A DEFENDANT, WHERE
is adequate and injunctive relief is improper, THE PLAINTIFF HAS
notwithstanding the possibility that a money DEMONSTRATED: (1) THAT THE
judgment will be uncollectible. Id. at 999. DEFENDANT WILL TRANSFER,
DISSIPATE, OR HIDE HIS/ HER
In Lopez-Ortiz v. Centrust Sav. Bank, ASSETS SO AS TO RENDER A TRIAL
546 So.2d 1126 (Fla. 3d DCA 1989), the trial JUDGMENT UNENFORCEABLE; (2) A
court granted an ex parte injunction upon the CLEAR LEGAL RIGHT TO THE RELIEF
filing by Centrust Bank of a one-count REQUESTED; (3) A SUBSTANTIAL
complaint alleging that Ortiz had converted LIKELIHOOD OF SUCCESS ON THE
funds while employed by the MERITS, AND (4) THAT A
TEMPORARY INJUNCTION WILL
[758 So.2d 707] SERVE THE PUBLIC INTEREST?

bank. On appeal, the court reversed the REVERSED.

injunction freezing Ortiz's bank account and
safe deposit box, because the bank had an KLEIN and TAYLOR, JJ., concur.
adequate remedy at law—money damages for
conversion. "An action at law does not become GROSS, J., concurs specially with
an equitable action simply because a request opinion.
for an injunction has been made." Id. at 1127.
Similarly, in Digaeteno v. Perotti, 374 So.2d GROSS, J., concurring specially.
1015 (Fla. 3d DCA 1979), which wasfollowed
by this court in Cannon v. Danziger,454 So.2d The majority opinion has reached the
59 (Fla. 4th DCA 1984), the court held that the correct result, based on an abundance of
trial court erred in enjoining the defendants in authority. The holding harmonizes with legal
a suit for conversion and fraud from removing precepts that had their beginnings in the
assets, since the plaintiffs had an adequate fourteenth century. However, at the beginning
remedy at law in the form of money damages. of a new century, Florida should reexamine
these principles and enable the trial judge to
The order granting the temporary fashion a remedy that does justice in this case.
injunction must be reversed because the
complaint failed to show lack of an adequate Aisenberg's complaint alleged that Abe
remedy at law justifying issuance of an Weinstein, "by the artful use of a copy and
injunction. We need not, therefore, determine facsimile machine," caused the "wrongful
whether the order complied with Rule 1.610. withdrawal of $760,000.00" from a business
We agree, however, with Judge Gross' account. The complaint also alleged that there
concurring opinion concerning the "no was a "substantial likelihood that the
adequate remedy at law" requirement for Defendants will abscond with whatevermonies
temporary injunctions in cases like this one. are not restrained" and "that there is a great
Accordingly, we certify the following question likelihood that the Defendants will be
to the Florida Supreme Court as one of great candidates for flight to a foreign jurisdiction."
public importance: In his brief, Aisenberg emphasizes that
without an injunction, he will be left with an
empty "piece of paper entitled judgment."

-2-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

Aisenberg's complaint contained three plaintiff must establish in order to obtain

counts. The count for injunctive relief sought injunctive relief. Numerous cases have held
to freeze the Weinsteins' bank accounts. The that a party seeking an injunction in Florida
counts for conversion and unjust enrichment "must demonstrate: 1) irreparable harm; 2) a
were both actions at law. See Commerce clear legal right; 3) an inadequate remedy at
Partnership 8098 Ltd. v. Equity Contracting law; [and] 4) consideration of the public
Co., Inc., 695 So.2d 383, 386-87 (Fla. 4th interest." Hiles v. Auto Bahn Fed'n, Inc., 498
DCA 1997); In re Estate of Corbin, 391 So.2d So.2d 997, 998 (Fla. 4th DCA 1986) (citation
731, 732 n. 1 (Fla. 3d DCA 1980). Aisenberg did omitted).
not pursue the relief available under the
prejudgment garnishment statute, section In Hiles, we explained that the "loss of
77.031, Florida Statutes (1999). Nor did money from a corporate bank account does not
Aisenberg seek an injunction incident to an constitute irreparable harm because the loss
action to impose a constructive trust on the can be compensated for by money damages."
bank accounts. See Castillo v. Vlaminck de 498 So.2d at 998 (citing Goldberger v.
Castillo, 701 So.2d 1198, 1199 (Fla. 3d DCA Regency Highland Condominium Ass'n, 383
1997); Korn v. Ambassador Homes, Inc., 546 So.2d 1173 (Fla. 4th DCA 1980)); see
So.2d 756, 757 (Fla. 3d DCA 1989); see Digaeteno, 374 So.2d at 1016; Adjmi v.
generally, Quinn v. Phipps, 93 Fla. 805, 113 Pankonin, 126 So.2d 153, 155 (Fla. 3d DCA
So. 419 (1927); 1961).

[758 So.2d 708] Other cases denying injunctive relief

incident to actions at law emphasize that the
Staples v. Battisti, 191 So.2d 583, 585 (Fla. 3d availability of a money judgment provides an
DCA 1966). adequate remedy at law. See Oxford Int'l Bank
& Trust, Ltd. v. Merrill Lynch, Pierce, Fenner
Many district court of appeal cases have & Smith, Inc., 374 So.2d 54, 56 (Fla.
held that a court may not grant the equitable 3d DCA 1979); Adjmi, 126 So.2d at 155. The
relief of an injunction incident to an action at test of the "inadequacy of [a] remedy at law is
law, such as conversion. See St. Lawrence Co., whether a judgment can be obtained, not
N.V. v. Alkow Realty, Inc., 453 So.2d 514, 515 whether, once obtained, it will be collectible."
(Fla. 4th DCA 1984); Lopez-Ortiz v. Mary Dee's, Inc. v. Tartamella, 492 So.2d 815,
Centrust Sav. Bank, 546 So.2d 1126, 1127 (Fla. 816 (Fla. 4th DCA 1986) (citing St.
3d DCA 1989); Digaeteno v. Perotti, 374So.2d Lawrence, 453 So.2d at 514).
1015, 1016 (Fla. 3d DCA 1979). The
locution appearing in the older cases is that Florida cases often discuss irreparable
an action for equitable relief, such as an harm and the inadequacy of a remedy at law as
injunction, cannot be maintained unless it falls if they were distinct concepts. However,
"`within some acknowledged head of equity Florida's application of the irreparable injury
jurisprudence.'" Action Elec. & Repair, Inc. v. rule is consistent with Professor Laycock's
Batelli, 416 So.2d 888, 889 (Fla. 4th DCA observation that
1982) (quoting Acquafredda v. Messina, 408
So.2d 828, 829 (Fla. 5th DCA 1982) [t]he irreparable injury rule has
(quoting B.L.E. Realty Corp. v. Mary two formulations. Equity will act
Williams Co., 101 Fla. 254, 134 So. 47, 50 only to prevent irreparable
(1931))). injury, and equity will act only if
there is no adequate legal
Many cases explain this rule by focusing remedy. The two formulations
on the absence of two of the elements that a are equivalent; what makes an
-3-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

injury irreparable is that no which should be properly tried in a trial on the

other remedy can repair it. law side of the docket." 89 So.2d at 670. The
Attempts to distinguish the two court observed that while an injunction is a
formulations have produced no matter for equity jurisdiction, "merely praying
common usage. for an injunction does not mean that equity
jurisdiction of the whole cause isautomatically
Douglas Laycock, The Death of the invoked." Id.
Irreparable Injury Rule, 103 HARV. L. REV.
687, 694 (1990) (footnotes omitted). Tampa & G.C.R. Co. contains thesupreme
court's most often cited analysis of what it
The district court of appeal cases derive means for a remedy at law to be inadequate.
from Florida Supreme Court cases which The plaintiff in Tampa sought equitable relief
predate the 1967 merger of the law and equity for "damage and injury arising from tort,"
courts.1 See Ramsey v. Lovett, 89 So.2d 669 arguing that the defendant was an insolvent
(Fla.1956) (determining equity jurisdiction); railroad, and "that a judgment atlaw against it
West v. Shirley, 69 So.2d 182 (Fla.1953); would be uncollectible and of novalue." 73 Fla.
Stewart v. Manget, 132 Fla. 498, 181 So. 370 at 151, 74 So. at 299. The supreme court
(1938) (citing B.L.E. Realty Corp. v. Mary rejected this claim of an inadequate remedy at
Williams Co., 101 Fla. 254, 134 So. 47 (1931)); law:
Tampa & G.C.R.
The inadequacy of a remedy at
[758 So.2d 709] law to produce money is not the
test of the applicability of the
Co. v. Mulhern, 73 Fla. 146, 74 So. 297 (1917). rule. All remedies, whether at
law or in equity, frequently fail to
For example, in Ramsey, the plaintiffs do that; and to make that the test
filed a bill of complaint in equity claiming that of equity jurisdiction would be
the "plaintiffs had been damaged by substituting the result of a
defendants having fraudulently proceeding for the proceeding
misrepresented material facts regarding lands which is invoked to produce the
and improvements sold by defendants to result. The true test is, could a
plaintiffs." 89 So.2d at 669. The plaintiffs judgment be obtained in a
alleged that the defendants were either out of proceeding at law, and not,
the state or concealing themselves and that would the judgment procure
they had sold all of their property, except "one pecuniary compensation.
parcel of real estate which they were
attempting to sell." Id. The plaintiffs 73 Fla. at 151-52, 74 So. at 299.
contended that they had no adequate remedy
at law, because if the defendants sold their The "no adequate remedy at law"
parcel of land, they would have no assets in the requirement was adopted "to reduce the
state upon which the plaintiffs could levy to tension that plagued the relationship between
satisfy a judgment for damages. The plaintiffs the Chancery and the common law courts
sought an injunction preventing the during the seventeenth century." Rhonda
defendants from disposing of the property. See Wasserman, Equity Renewed: Preliminary
id. Injunctions to Secure Potential Money
Judgments, 67 WASH. L.REV. 257, 319
The supreme court reversed a final decree (1992) (footnote omitted). As Professor
in favor of the plaintiffs, holding that the case Laycock has explained:
"was essentially a suit for damages

-4-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

Equity developed in the court of To modern lawyers, the "choice between

chancery, which emerged in the legal and equitable remedies is historical and
fourteenth century, when the almost wholly dysfunctional." Laycock, 103
Chancellor began to regularize a HARV. L.REV. at 696. Prior to the merger of
procedure for dealing with the courts, lawyers had to be skilled atdrawing
petitions of the King's personal the distinction between legal and equitable
justice. Not surprisingly, there remedies. The penalty for bringing acase in the
were intermittent complaints wrong court was dismissal or transfer to the
about this bypass of the regular correct side of the docket. See Ramsey, 89
courts. But the intermittent So.2d at 670; Stewart, 181 So. at
attacks on chancery did not 374.
preclude cooperation between
chancery and the common law Under modern pleading rules, equitable
courts. Chancery was doing and legal causes of action may travel in the
judicial work that the common same complaint. See, e.g., Billian v. Mobil
law courts were ill-equipped to Corp., 710 So.2d 984, 991-92 (Fla. 4th DCA),
do. Gradually, the two courts rev. denied, 725 So.2d 1109 (Fla. 1998). Such
reached an accommodation. a joinder of legal theories presents difficulty in
Chancery would not duplicate trial management, because fact issues may
the work of the common law overlap and a litigant is entitled to a jury trial
courts, but it would do other for actions at law. See id. at 992. Among
judicial work that the common modern lawyers and judges, "[c]onfusion
law courts had never done. In between [legal and equitable causes of action]
short, equity would take persists." Laycock, 103 HARV. L.REV. at 696.
jurisdiction only if there were no Lawyers sensitive to the distinction between
adequate remedy at law. This is the remedies often try to force a case into an
the origin of the irreparable equitable pigeonhole in order to obtain
injury rule. injunctive relief that will make a final
judgment meaningful.
Laycock, 103 HARV. L.REV. at 699
(footnotes omitted). Professor Wasserman has made a
compelling argument that a preliminary
With the merger of the law and equity injunction should be available to a plaintiff in
courts, the historical reasons for equity's an action at law who demonstrates that a
deference to common law courts and remedies defendant will dissipate or hide her assets
disappeared. See Wasserman, 67 WASH. unless restrained by the court. See 67 WASH.
L.REV. at 319. The pre-merger Florida cases L.REV. at 266, 348. To obtain a temporary
reflect the need to preserve the structural injunction, a plaintiff must prove that: (1) she
distinction between law and will suffer irreparable harm unless the status
quo is maintained; (2) she has no adequate
[758 So.2d 710] remedy at law; (3) she has a clear legal right
to the relief requested and a substantial
equity in the court system. Post-merger cases likelihood of success on the merits; and (4) a
are hamstrung by the language of the older, temporary injunction will serve the public
binding authority and are therefore prevented interest. See, e.g., Singletary v. Costello, 665
from looking behind the irreparable injury So.2d 1099, 1102 (Fla. 4th DCA 1996)
rule of Tampa & G.C.R. Co. to consider its logic (citation omitted); Taylor v. Cesery, 717
and justice. So.2d 1112, 1114 (Fla. 1st DCA 1998) (citation
omitted).
-5-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

As to the irreparable harm/inadequate conduct designed to render the

remedy aspects of the showing necessary for a judgment unenforceable.
preliminary injunction, Professor Wasserman
concludes that "in cases in which the plaintiff
sues to collect money damages and can
demonstrate that the defendant is about to [758 So.2d 711]
dissipate her assets to frustrate the potential
money judgment," the plaintiff's harm should 67 WASH. L.REV. at 293, n. 143.2
be considered irreparable. 67 WASH. L.REV.
If the irreparable injury/inadequate
at 293. She points out that
remedy portion of the temporary injunction
[i] f, as Professors Wright and equation were expanded, the other
Miller have suggested, "the most prerequisites to such relief, combined with the
compelling reason in favor of requirements of Florida Rule of Civil
entering a preliminaryinjunction Procedure 1.610, would create a workable
is the need to preventthe judicial legal framework for ruling on the issuance of
process from being rendered a temporary injunction that balances the
futile by defendant's action or interests of a defendant with those of the
refusal to act," then the case in plaintiff and the public. To decide whether a
favor of preliminary injunctions preliminary injunction should issue, a trial
to enjoin the dissipation of assets court must balance the hardships between the
iscompelling indeed. plaintiff and the defendant. The bond
requirement of Rule 1.610(b) reduces the risk
Id. at 286 (footnotes omitted) (quoting 11 of harm to a defendant. A trial court can
Charles A. Wright & Arthur R. Miller, Federal fashion a flexible temporary injunction that
Practice and Procedure § 2947, at 424 (1973)). gives the defendant some access to funds.
During the pendency of a temporary
Recognizing that this approach is injunction, a defendant may seek modification
contrary to the holding of Tampa & G.C.R. Co. to obtain funds for specified uses. See 67
and its progeny, Professor Wasserman argues: WASH. L.REV. at 296 (discussing ways courts
reduce risk of harm todefendants).
If the plaintiff can prove that the
defendant is about to dissipate Finally, a temporary injunction
assets to render herself preventing a defendant from rendering herself
judgment-proof, it is difficult to judgment proof serves the publicinterest in six
see how the potential money ways: 1) the injunction protects the integrity of
judgment will be an adequate the judicial process; 2) the injunction reduces
remedy for the plaintiff. The any incentive the defendant would have to
author believes [Oxford Int'l delay the litigation;
Bank & Trust and Stewart v. 3) as compared to prejudgment attachment,
Manget] are incorrect to the the temporary injunction diminishes a
extent they hold that a money plaintiff's leverage over a defendant; 4) a
judgment is an adequate remedy temporary injunction "reduces the likelihood
regardless of whether the that other creditors of the defendant will rush
defendant is engaged in to file claims against her or even force herinto
involuntary bankruptcy"; 5) a preliminary
injunction is less likely to affect the rights of
innocent third parties who may

-6-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

be in possession of a defendant's property than A "deliberate reconsideration" of the

prejudgment attachment orgarnishment; and irreparable injury rule compels the conclusion
6) because of the geographical limitations of that, assuming the other prerequisites are met,
garnishment and attachment, an injunction, a temporary injunction may issue where the
which operates in personam on a defendant, plaintiff has proven a demonstrable risk that
"eliminates the need for duplicative actions in the defendant will transfer, hide, or dissipate
multiple states." 67 WASH. L.REV. at 299- her assets, even if the plaintiffs claim is based
305. on an action at law. In this context, Florida's
preference
Florida law has tied itself to a rule of law
firmly rooted in history, but for which the [758 So.2d 712]
original justification has evaporated. As
Justice Holmes wrote in 1897: for legal remedies over equitable ones no
longer serves any useful purpose.
The rational study of law is still
to a large extent the study of
history. History must be a part of
the study, because without it we --------
cannot know the precise scope of
rules which it is our business to
know. It is a part of the rational
study, because it is the first step Notes:
toward an enlightened
1. "In 1967, Florida adopted rules of civil
skepticism, that is, toward
procedure which gave the circuit courts
a deliberate
jurisdiction to hear cases in which counts at
reconsideration of the worth of
law and counts in equity were pled in the same
those rules. When you get the
complaint as alternative grounds for relief. In
dragon out of his cave on to the
re Florida Rules of Civil Procedure 1967
plain and in the daylight, you can
Revision, 187 So.2d 598, 600 (Fla.1966); Ch.
count his teeth and claws, and
67-254, Laws of Fla.; Fla. R. Civ. P. 1.040,
see just what is his strength.But
1.110(g)." Billion v. Mobil Corp., 710 So.2d
to get him out is only the first
984, 991 (Fla. 4th DCA), rev. denied, 725 So.2d
step. The next is either to kill
1109 (Fla.1998). Prior to that time Florida's
him, or to tame him and make
courts of law were separate from its courts of
him a useful animal. It
equity.
is revolting to have no better
reason for a rule of law than that 2. To support her view, Professor
so it was laid down in the time of Wasserman cites to cases which have held that
Henry IV. It is still more the "unsatisfiability of a money judgmentcan
revolting if the grounds upon constitute irreparable injury." See Rhonda
which it was laid down have Wasserman, Equity Renewed: Preliminary
vanished long since, and the rule Injunctions to Secure Potential Money
simply persists from blind Judgments, 67 WASH. L.REV. 257, 292-93 at
imitation of the past. n. 141-42 (1992) (citing Hoxworth
v. Blinder, Robinson & Co. 903 F.2d 186, 206
O.W. Holmes, The Path of the Law, 10
(3d Cir.1990); In re Feit & Drexler, Inc., 760
HARV. L.REV. 457, 469 (1897).
F.2d 406, 416 (2d Cir.1985); Roland Mach. Co.
v. Dresser Indus., Inc., 749 F.2d 380, 386

-7-
 Weinstein v. Aisenberg, 758 So.2d 705 (Fla. App., 2000)

(7th Cir.1984); Teradyne, Inc. v. Mostek

Corp., 797 F.2d 43, 52-53 (1st Cir. 1986)).

-8-
 Lawhon v. Mason, 611 So.2d 1367 (Fla.App. 2 Dist., 1993)

Page 1367 counsel expressed his "concern" that Lawhon

might be prepared to dissipate or conceal
611 So.2d 1367 assets, though he admitted she had not
18 Fla. L. Week. D351 attempted to do so up to that point.

Joan Downing LAWHON, Petitioner, judgments." Respondents'

v.
Roger MASON and Marie Mason, as
natural parents and
guardians of John Paul Mason, a
minor; and
Government Employees Insurance
Company,
Respondents.
No. 92-04190.
District Court of Appeal of Florida,
Second District.
Jan. 22, 1993.

Bonita L. Kneeland of Fowler, White,

Gillen, Boggs, Villareal & Banker, P.A., Tampa,
for petitioner.

Bruce Rogow of Bruce S. Rogow, P.A.,

Fort Lauderdale; Beverly A. Pohl, Fort
Lauderdale; and Christopher M. Larmoyeux
of Montgomery & Larmoyeux, West Palm
Beach, for respondents.

PER CURIAM.

Joan Lawhon seeks a writ of certiorari to

review a prejudgment order entered by the
circuit court in connection with an ongoing
automobile negligence action. We find no
authority for the order under review, and grant
the petition.

Lawhon is the defendant below. Shortly

after her request for continuance was granted,
respondents filed a "motion to prohibit
defendant from transferring assets." The
motion cited the extensive injuries suffered in
the accident, a perceived lack of sufficient
insurance coverage, the belief that Lawhon has
"substantial assets" that would be subject to
execution in the event of a plaintiffs' verdict,
and the fact Lawhon "had hired personal
counsel skilled in the area of execution of

-1-
 Lawhon v. Mason, 611 So.2d 1367 (Fla.App. 2 Dist., 1993)
The trial court's order requires that Lawhon give
plaintiffs ten days notice prior tothe transfer of any
assets in excess of $500. The order has the effect of a
series of temporary injunctions, without the
necessary showing of entitlement to injunctive relief.
An injunction cannot be used to enforce money
damages or prevent a party from disposing of assets
prior to the conclusion of an action at law. Hiles v.
Auto Bahn Federation, Inc., 498 So.2d 997 (Fla. 4th
DCA1986); Action Electric & Repair, Inc. v. Batelli,
416 So.2d 888 (Fla. 4th DCA1981). The order also
bears aspects of a prejudgment writ of attachment,
without requiring respondents to satisfy the statutory
requirements for same. A writ of attachment cannot
issue unless there is a debt due or an existing debt not
yet due. There must also bea verified complaint or
sworn allegation that the defendant is removing or
disposing of property. Hearsay or "subjective belief"
will not suffice. Hordis Bros., Inc. v. Sentinel
Holdings, Inc., 562 So.2d 715 (Fla. 3d DCA1990).

Respondents contend that a tort claimantmay be

entitled to enjoin fraudulent transfers of assets even
though the claim is contingent and not yet reduced to
judgment. Cook v. Pompano Shopper, Inc., 582
So.2d 37 (Fla.4th DCA1991). While this may be so,
respondents have yet to file suit under the Uniform
Fraudulent Transfer Act. Thus Lawhon appropriately
describes their approach as "attempting to
'piggyback' the discovery process of an unfiled
Chapter 726 lawsuit onto a simple negligence claim."

The petition for certiorari is granted, the order

under review is quashed, and this caseis remanded
to circuit court for further proceedings consistent
with this opinion.

-2-
 Lawhon v. Mason, 611 So.2d 1367 (Fla.App. 2 Dist., 1993)

RYDER, A.C.J., and HALL and

PATTERSON, JJ., concur.

-3-
 Konover Realty Associates, Ltd. v. Mladen, 511 So.2d 705, 12 Fla. L. Weekly 2039 (Fla. App. 3 Dist., 1987)

Page 705 sellers to deposit $500,000 in the court

registry pending the outcome of the case.
511 So.2d 705
12 Fla. L. Weekly 2039 We review this order under Fla.R.App.P.

KONOVER REALTY ASSOCIATES, 9.130(a)(3)(B) as one granting an injunction,

LTD., Harold Konover and Konover 2 Action Electric & Repair, Inc. v. Batelli, 416

Hotels Corporation, Appellants, So.2d 888 (Fla. 4th DCA 1982); see Ramos v.
v. Stabinski & Funt, P.A., 494 So.2d 298 (Fla. 3d
David MLADEN, Appellee. DCA 1986), and summarily reverse. It is
No. 87-1095. entirely settled by a long and unbroken line of
District Court of Appeal of Florida, Florida cases that in an action at law for money
Third District. damages, there is simply no judicial authority
Aug. 18, 1987. for an order requiring the deposit of the
amount in controversy into the registry of the
Young, Stern & Tannenbaum and Glen court, Ramos, 494 So.2d at 298; Law v. NCNB
Rafkin, North Miami Beach, for appellants. National Bank of Florida, 452 So.2d 1119 (Fla.
4th DCA 1984); Wincast Associates, Inc. v.
Lee Milich, Miami, and Bruce L. Hickey, 320 So.2d 17 (Fla. 4th DCA 1975), or
Hollander, Hollywood, for appellee. indeed for any restraint upon the use of a
defendant's unrestricted assets 3 prior to the
Before SCHWARTZ, C.J., and DANIEL S. entry of judgment. Stewart v. Manget, 132 Fla.
PEARSON and JORGENSON, JJ. 498, 181 So. 370 (1938); Leight v. Berkman,
483 So.2d 476 (Fla. 3d DCA 1986); Stading v.
SCHWARTZ, Chief Judge.
Equilease Corp., 471 So.2d 1379 (Fla. 4th DCA
1985); Ciabotti v. Milo, 432 So.2d 792 (Fla. 3d
Pursuant to a contract under which the
DCA 1983); Supreme Service Station Corp. v.
appellee Mladen agreed to purchase and the
TeleCredit Service Center, Inc., 424 So.2d 844
appellants to sell the Konover Hotel on Miami
(Fla. 3d DCA 1982). The rule has been
Beach, Mladen made a $500,000 unrestricted
specifically applied, as on general principles it
deposit payment 1 to the sellers to be applied to
must be, to an action like this one for the
the purchase price at closing. The deal did not
recovery of unsegregated earnest money,
close and each side claimed that the other was
Digaeteno v. Perotti, 374 So.2d 1015 (Fla. 3d
in default. The purchaser then brought this
DCA 1979), and is unequivocally not affected
action to recover a $500,000 money judgment
by the claim that recovery upon any
in the amount of the deposit. The sellers
subsequently-entered judgment may be made
counterclaimed that they were entitled to
difficult by the dissipation or unreachability of
retain the sum as liquidated damages for what
the debtor's assets. 4 , 5 Leight, 483 So.2d at
they said was the buyer's breach and for other
476; Oxford International Bank and Trust,
relief. In the course of the litigation,which is to
Ltd. v. Merrill, Lynch, Pierce, Fenner & Smith,
be resolved by jury trial, Mladen, on the
Inc., 374 So.2d 54 (Fla. 3d DCA 1979), cert.
asserted ground that the individual seller,
dismissed, 383 So.2d 1199 (Fla.1980).
Harold Konover, "is in serious health [sic[k]]"
and that "in the event of [his] death, this Reversed.
money would be tied up in his estate," moved
for and the trial court entered an order ---------------
requiring the defendants-
1 No escrow fund was established with the
Page 706

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 Konover Realty Associates, Ltd. v. Mladen, 511 So.2d 705, 12 Fla. L. Weekly 2039 (Fla. App. 3 Dist., 1987)

broker or anyone else. $500,000 was simply

paid to the sellers.

2 We need not squarely decide, although we

incline to that view, that an order requiring
such a court deposit (or establishing a
receivership) is reviewable also under
Fla.R.App.P. 9.130(a)(3)(C)(ii) as one
determining the right to the immediate
possession of property. Thunderbird, Ltd. v.
Great American Insurance Co., 470 So.2d 2
(Fla. 1st DCA 1985). We note that in Florida
Reinvestment Corp. v. Cypress Savings Ass'n,
509 So.2d 1352 (Fla. 4th DCA 1987), the fourth
district has overruled its previously held view
to the contrary in Mann v. Stein,
379 So.2d 978 (Fla. 4th DCA 1980) (order
reviewable under (C)(ii) only if possession is
granted to opposing party), cert. denied, 389
So.2d 1112 (Fla.1980).

3 See supra note 1.

4 We note that the principle is applicable even

when, as in Leight, it seems clear that the
plaintiff will eventually actually recover a
judgment. In this case, it is far from certain
that Mladen will prevail in the underlying
litigation.

5 The appellee has not attempted to conform

to the requirements of the remedy which
would satisfy his alleged concerns,
prejudgment attachment. §§ 76.01-.32,
Fla.Stat. (1985); Leight, 483 So.2d at 476.

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