Housman v. Housman

1

GARY HOUSMAN, Appellant, v. PEGGY HOUSMAN, Guardian of the Person and Co-Guardian of the Property of the Ward, Hikoro Housman, and MARK HOUSMAN, Co-Guardian of the Property of the Ward, Hikoro Housman, Appellees.

No. 5D21-3011

Florida Court of Appeals, Fifth District

September 15, 2023

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Brevard County. Morgan Laur Reinman, Judge LT Case No. 2018-GA-057142.

Roberta G. Mandel, of Mandel Law Group, P.A., Miami, for Appellant.

Elizabeth Siano Harris, of Harris Appellate Law Office, Mims for Appellees.

BOATWRIGHT, J.

Appellant Gary Housman, appeals the guardianship court's order freezing his assets (the "freeze order"), arguing, inter alia, that the Appellees' motion and court's order failed to comply with the legal requirements for the issuance of an ex parte order freezing assets. We agree that the freeze order was legally insufficient and therefore reverse.

I.

To briefly recap the procedural history of this case, Appellees, who are the brother and sister of Appellant, initiated guardianship proceedings on behalf of their mother ("the Ward") by petitioning to be appointed as co-guardians of the Ward. Appellant filed a counter-petition for appointment as guardian of the Ward, and the guardianship court held a five-day trial. After the trial, the guardianship court entered a final judgment which appointed Appellees as co-guardians of the Ward. The final judgment also required Appellant, who had been overseeing the Ward's finances prior to the trial, to facilitate the transfer of the Ward's assets to Appellees, as the co-guardians of the Ward, and to retitle any jointly titled assets of the Ward either solely in the name of the Ward or in the name of the guardianship. In particular, the guardianship court specified that a Chase account and a SunTrust account, which contained the Ward's funds, were to be titled in Appellees' names as co-guardians of the Ward.

Instead of complying with the final judgment, Appellant removed a total of $173,709.97 from the Chase and SunTrust accounts and placed the funds in his own account. Therefore, the guardianship court subsequently entered an order for enforcement of the final judgment, which required Appellant to return the funds to Appellees' attorneys to be placed in their firm's trust account.^[1] Appellant failed to comply with the order for enforcement, and Appellees filed a verified ex parte motion to freeze Appellant's assets, fearing Appellant might waste or fraudulently transfer the Ward's assets. The guardianship court granted Appellees' motion and entered an order freezing Appellant's assets. Appellant directly appealed the freeze order without first filing a motion to dissolve the order per Florida Rule of Civil Procedure 1.610(d).

II.

"[A]n order temporarily freezing assets is effectively an order granting a temporary injunction." Leposky v. Ego, 348 So.3d 1160, 1162 (Fla. 4th DCA 2022) (holding that an order temporarily freezing assets in a guardianship proceeding is effectively an order granting a temporary injunction); see also Pendergraft v. C.H., 225 So.3d 420, 421 (Fla. 5th DCA 2017) ("An order freezing assets for further determination of the ownership right to those assets is in the nature of an injunction."); Lerma-Fusco v. Smith, 220 So.3d 562, 565 (Fla. 5th DCA 2017) (noting that an order freezing assets is a temporary injunction). As a result, the laws and rules governing temporary injunctions apply when a court enters a temporary order freezing assets. Leposky, 348 So.3d at 1162; see also Merrett v. Nagel, 564 So.2d 229, 230-32 (Fla. 5th DCA 1990) (applying rule 1.610, which governs temporary injunctions, to a guardianship case).

"The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1258 (Fla. 2017) (citation omitted). "However, when the party against whom a preliminary injunction is entered does not file a motion to dissolve the injunction pursuant to rule 1.610(d) prior to the direct appeal, the appellate court may not inquire into the factual matters presented . . . ." Yardley v. Albu, 826 So.2d 467, 469 (Fla. 5th DCA 2002). "[I]nstead, the court's inquiry is limited to the legal sufficiency of the trial court's order, the complaint, and any supporting documents." Id.

In order to receive a temporary injunction, the moving party must establish: "(1) the likelihood of irreparable harm; (2) the lack of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) considerations of the public interest." Dickerson v. Senior Home Care, Inc., 181 So.3d 1228, 1229 (Fla. 5th DCA 2015) (citing Yardley, 826 So.2d at 470). If a motion for temporary injunction meets the four criteria, the court must make findings in the order granting the injunction as to each of the criteria. Id. (citing rule 1.610(c)). The court's order "must contain [c]lear, definite, and unequivocally sufficient factual findings to support each of the four elements." Leposky, 348 So.3d at 1162 (quoting Bautista REO U.S., LLC v. ARR Invs., Inc., 229 So.3d 362, 365 (Fla. 4th DCA 2017)). However, if the movant fails to establish any element, the trial court must deny the temporary injunction. See Fla. Assn of Realtors v. Orange Cnty., 350 So.3d 115, 123 (Fla. 5th DCA 2022).

"While a trial court is afforded discretion in setting the amount of bond for a temporary injunction, the court cannot waive the bond requirement of rule 1.610(b), nor can it comply by setting a nominal amount." See St. Marks Pond Indus., LLC v. Boles, 361 So.3d 940, 941 (Fla. 5th DCA 2023) (citations omitted). Rule 1.610 requires the trial court to set a bond when entering a temporary injunction, but it provides two exceptions where a bond can be waived: (1) when an injunction is issued on the pleading of a "municipality or the state or any officer, agency, or political subdivision thereof," or (2) when a temporary injunction is "issued solely to prevent physical injury or abuse of a natural person." Fla. R. Civ. P. 1.610(b). However, a trial court's failure to set a bond does not invalidate the temporary injunction on its own. See Graham v. Battey, 347 So.3d 515, 522 (Fla. 5th DCA 2022) ("[T]he lack of a...