#### UNITED STEELWORKERS OF AMERICA, AFL-CIO, a labor organization, Appellant, v. SEMINOLE ASPHALT REFINING, INC., a Florida corporation, Appellee.

No. R-42.

District Court of Appeal of Florida, First District.

Nov. 21, 1972.

See also, Fla.App., 262 So.2d 215.

Wilfred C. Varn, of Ervin, Varn, Jacobs & Odom, Tallahassee, and George C. Longshore, of Cooper, Mitch & Crawford, Birmingham, Ala., for appellant.

*29Julius F. Parker, Jr., of Madigan, Parker, Gatlin & Swedmark, and Walter O. Lambeth, Jr., and J. Alexander Porter, of Swift, Currie, McGhee & Hiers, Atlanta, Ga., for appellee.

RAWLS, Judge.

This is the second appearance of this case. Our previous decision denying ap-pellee’s motion to quash and dismiss this interlocutory appeal is reported in Fla.App., 262 So.2d 215. By the instant appeal appellant, United Steelworkers of America, challenges the trial court’s order granting a temporary injunction without notice which restrained it from conducting certain activities. The Steelworkers contend that the unverified petition and supporting affidavit of Seminole Asphalt Refining, Inc. is insufficient as a matter of law to support the temporary injunction. We agree.

The unverified petition for temporary injunction generally alleged that striking employees and other members of United Steelworkers were massed in such a manner as to block the entrance into Seminole’s plant and intimidate persons from entering same. These unverified allegations, standing alone, were of no legal significance. The unverified petition was supported solely by an affidavit of Maxwell J. Lewis which stated:

> “1. I am President and part owner of Seminole Asphalt Refining, Inc., with its plant located at St. Marks, Florida. I give this Affidavit in support of the attached Petition on behalf of Seminole Asphalt Refining, Inc.

> *“2.*Beginning approximately at 11:00 p. m., February 20, 1972, employees of Seminole Asphalt Refining, Inc. and members of the United Steelworkers of America, AFL-CIO, began picketing the plant located at St. Marks, Florida, on Main Street.

> “3. I arrived at the plant at approximately 8:30 a. m., February 21, 1972, at which time there were seven or eight employees carrying picket signs and walking a picket line directly across the only entrance and exit driveway into the plant. The pickets were partially blocking entrance to the plant.

> “4. In addition to the pickets there were other employees massed on the opposite side of the highway from the plant entrance; there were some men in addition to the pickets on the same side of the street as [the] plant, and there were approximately thirty employees, including the pickets, in and about the entrance to the plant and across the street. There were approximately eight to ten cars parked along the road shoulders in the proximity to the plant.

> “5. At about 10:00 a. m., February 21, at the direction of my Labor Counsel, I took five poloroid photographs, which depict the entrance to the plant, the pickets, the employees massed across the road from the plant entrance, and the automobiles parked on the roadside. At the time I took the photographs, the pickets had been reduced from seven or eight men to three men. At the time I left the plant at about 10:15 a. m., the men were still grouped and massed across the street and the automobiles still parked on the road shoulders. I attach the aforementioned five photographs as Exhibits 1 through 5, to this Affidavit.

> *“6.*I know of one customer of Seminole, Graceville Oil Company, who sent a tank truck to the plant and whose driver then turned back and did not enter the plant because of the picket line.”

As stated in paragraph 5 of the affidavit, five photographs were attached to same. Four of these photographs were apparently taken from the driveway of Seminole’s entrance and depict a group of men gathered at the Steelworkers’ Hall which is located across the street from Seminole’s plant entrance. We note that the Union members possess the same constitutional guarantees *30to gather at their Hall as does Seminole to have access to its property.

The well settled rule for issuance of temporary injunctions without notice in this jurisdiction was stated in National Dairy Products Corporation v. State,1 viz.:

> “As to granting of the temporary restraining order without notice, this court is wed to the opinion that injunctions or restraining orders should be granted without notice on only those rare occasions when the court is presented a sworn statement of facts, showing not only a strong probability of guilt of the act complained of, but also strong, concrete evidence that irreparable damage will be sustained if notice is given the party or parties against whom the injunction is prayed. F.R.C.P. 3.19, 31 F. S.A.” 2

In Sheetmetal Workers’ International Association v. Florida Heat and Power, Inc.,3 our Supreme Court, in reviewing proper cases for state courts to exercise jurisdiction in labor disputes, again reiterated the well established rule regarding ex parte injunctions in labor .disputes, when it stated:

> “Therefore, to avoid collision with federal labor policy and to help remove the obscurity as to proper state jurisdiction, the use of ex parte injunctions must be limited to those three areas where their use already has been established: Where it is absolutely clear no federally-protected or prohibited activities are involved, *where there is violence,*and where there is an affront to the state’s right-to-work policy.

> “In all other cases, injunctions should not be issued without a prior opportunity to be heard by both sides to the dispute, so that emergent state interests, as well as competing private interests, can be litigated and built into the record. The future emergence of state labor jurisdiction will occur most successfully only if Florida courts refrain from tweaking the federal nose by precipitously issuing injunctions, and focus upon record-building and early adversarial litigation.” (Emphasis supplied.)

Reverting to the instant cause, the sole proof for the ex parte injunction was Mr. Maxwell’s affidavit which stated that seven or eight employees were carrying picket signs across the only entrance and exit driveway into the plant; that automobiles were parked on both sides of the road; and thirty men were gathered about the area. Such allegations and proof are patently insufficient to support a temporary injunction without notice. The temporary restraining order entered on February 21, 1972, is dissolved.

Reversed.

CARROLL, DONALD K„ Acting C. J„ concurs.

JOHNSON, J., dissents.

1

. National Dairy Products Corporation v. State, 189 So.2d 811, 813 (1 Fla.App.1966); also see Gustafson’s Dairy, Inc. v. State, 189 So.2d 814 (1 Fla.App.1966).

2

. Compare Rule 1.610, Florida Rules Civil Procedure, 31 F.S.A., which provides, inter alia:

> “ . . . No temporary injunction shall be granted except after notice to the adverse party unless it is manifest from the allegations of a verified complaint or supporting affidavits that the injury will be done if an immediate remedy is not afforded. ...”

3

. Sheetmetal Workers’ Int. Ass’n v. Florida H. & P., Inc., 230 So.2d 154, 159 (Fla.1970).

JOHNSON, Judge

(dissenting):

I cannot agree with the majority opinion in this case. When this case was before us before (Fla.App., 262 So.2d 215) it was upon appellee’s motion to quash and dismiss this interlocutory appeal. Although *31the former decision, supra, primarily dealt with the motion to quash and dismiss, the majority opinion in said case did, in effect, decide adversely to the appellee in its strongest point raised m its brief in this case, to wit: that the appeal was premature. I dissented in the former opinion, and I dissent in the present majority opinion, for all the reasons I set forth in my first dissent, which will not be repeated here, except, I want said reasons to be incorporated into this dissent by reference, and I give the additional arguments and opinions in support of my dissenting opinion, as follows:

In the appellant’s brief there are two points of law raised:

> I. Did the entry of the temporary restraining order on February 21, 1972, without notice and without bond, comply with the provisions of Florida Rule of Civil Procedure 1.610?

> II. Was the action of the Circuit Court in entering its order of March 7, 1972, without notice valid under Florida Rule of Civil Procedure 1.-610 and the Florida and United States Constitutions ?

In its statement of the case, or facts involved, appellant does not recite the fact that pursuant to the notice of hearing set for March 15, 1972 (which date was chosen by the appellant), the trial court permitted the appellant to submit testimony all day of March 15, and until 6:00 p. m., and that the hearing was adjourned at that time, to be resumed at a time to be agreeable to respective counsel.

It is my opinion that when the Supreme Court of Florida rendered its opinion on June 15, 1966 (187 So.2d 598), adopting the Florida Rules of Civil Procedure 1967 Revision, these Rules should control issuance of injunctions. We find this language in said opinion, supra:

> “ . . . This compilation and revision shall supersede all conflicting rules and statutes . . . .”

Also we find in Rule 1.010, F.R.C.P., the following language:

> “These rules apply to all suits of a civil nature and all *special statutory proceedings*in the Circuit Courts, . . . the form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes providing for such proceedings unless these rules specifically provide to the contrary.” (Emphasis supplied.)

Rule 1.610, F.R.C.P., makes provision for temporary injunctions, with or without notice, and at section (c) provides for a “motion to dissolve” any injunction which may be done at any time.

The majority opinion recognizes F.R.C. P., Rule 1.610, but does not attach any significance to 1.610(c) which provides for the motion to dissolve. It is my opinion now, as it was in the former appearance of this case, supra, that once the appellant had invoked the Rule 1.610, and had invoked the jurisdiction of the trial court into a hearing upon the issues, then it is incumbent upon the appellant to let the trial court exercise its authority on the motion to dissolve as provided by the Rule.

The majority opinion cites with approval the decision of this court in National Dairy Products Corp. v. State, and quotes therefrom the following quotation:

> “As to granting of the temporary restraining order without notice, this court is wed to the opinion that injunctions or restraining orders should be granted without notice on only those rare occasions when the court is presented a sworn statement of facts, showing not only a strong probability of guilt of the act complained of, but also strong, concrete evidence that irreparable damage will be sustained if notice is given the party or parties against whom the injunction is prayed. F.R.C.P. 3.19, 31 F. S.A.”

I do not thihk the facts in the case sub judice coincide with the facts in the cited *32case supra. Further, we find that in the cited case, National Dairy Products Corporation v. State, 189 So.2d 811, 814 (Fla.App.1st, 1966), this court said:

> “The assignments 7 and 8, we will treat conjunctively. The court having erroneously entered its temporary restraining order without notice as pointed out supra, we think the court further erred in not hearing the appellant’s motions on November 2, 1965, as scheduled. To restrain the operation of a business as large in volume as indicated by the pleadings, and without bond, as is authorized, is in itself a harsh remedy. A *full hearing should be had thereon*by the court at its earliest reasonable time.” (Emphasis supplied.)

In the National Dairy Products case, we recognized that the motion to dissolve the temporary injunction *should have been heard*before appeal, so that if the trial court had used a reasonable time table in hearing the motion to dissolve, as was done in the case sub judice, the error could have been corrected if found to be erroneously entered.

I think the correct opinion in this case was fixed by the Supreme Court of Florida in Greater Miami Development Corp. v. Pender, 142 Fla. 390, 194 So. 867 (1940), wherein the court refused to allow certio-rari to review an order by a trial court granting a temporary restraining order when *the petitioner’s statutory remedy of motion to dissolve was not pursued.*Also, I agree with the Fourth District Court in Tower Credit Corp. v. State, 183 So.2d 255 (Fla.App.4th, 1966), in which the court approved the holding of the Greater Miami Development Corp., supra, and, cases in which a motion to dissolve is not filed, it appears that an appellate court, lacking some unusual circumstances, such as an unreasonable delay in acting on the motion to dissolve, will refuse to entertain the interlocutory appeal.

In support of this theory, we find from Am.Jur., Vol. 4, “Appeal & Error”, § 120, and Vol. 42, “Injunctions”, § 347, annotations, to this effect:

> “The general rule seems to be that an ex parte order is not a final order and therefore not directly appealable, the view ordinarily taken being that the party aggrieved by such an order must first move to vacate or set aside the order and may then appeal from the decision on the motion. This refusal to permit direct appeals is based upon the theory that a trial court which may have acted erroneously on a one-sided application, will proceed and correct error if an adverse party is heard . . . .”

and I think the law in Florida to be also well-stated in 17 Am.Jur. page 119, Supp., where we find the following:

> “In the absence of a motion to dissolve a temporary restraining order, review of the order has been denied . . .”

It is therefore my opinion, based upon the law and decisions cited supra, that there is not an appealable order until the trial court has exerted its authority on the motion to dissolve, if said motion is timely filed and a timely hearing is offered and held. I don’t think we should take *any cognizance*of the appeal from the temporary injunction until the trial court has first had an opportunity to overlook its orders to correct the same, if the same is erroneously entered.

Another reason to add to my reason for dissenting, I find in a decision of the Third District Court of Appeal, when Judge Charles Carroll, in Belk’s Department Store, Miami, Inc. v. Scherman, Fla.App., 117 So.2d 845, 847, stated:

> “. . . Also, it has been held that appearing and moving to dissolve an injunction or vacate the appointment of a receiver on grounds going to the propriety and merits of the granting of the injunction or appointment of the receiver, and not challenging lack of notice alone, operates to *waive*and *cure the defect of want of notice.”*(Emphasis supplied.)

*33In the case sub judice, by filing the motion to dissolve and an answer, and setting the same for hearing, and actually taking testimony, the defects complained of in the motion to dissolve and in the answer, are waived, at least until the trial court has an opportunity to rule on the same.

For these reasons, I dissent and would return this appeal to the lower court to resume its hearings on the issues raised.