#### 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.

May 18, 1972.

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

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

ON MOTION TO QUASH AND DISMISS APPEAL

RAWLS, Judge.

On February 21, 1972, Seminole Asphalt Company petitioned the Circuit Court of the Second Judicial Circuit for a temporary injunction, without notice, directed against United Steelworkers. The trial court issued the sought injunction.1 United Steelworkers moved to dissolve the subject order upon the grounds, inter alia: (1) That the affidavit in support of Seminole’s petition was insufficient to support the temporary injunction; and (2) neither the petition nor the supporting affidavit contained any allegations of fact constituting irreparable injury. On March 15, 1972, a full day’s evidentiary hearing was held by *216the trial judge on the motion to dissolve and other matters. The taking of evidence was not completed and the hearing was adjourned to be reconvened at a later time to be agreed upon by counsel for the respective parties. On March 20, 1972, United Steelworkers filed its notice of interlocutory appeal from the temporary injunction dated February 21, 1972.

The movant, Seminole Asphalt, contends that an order granting a temporary injunction cannot be appealed. It insists that such an order must first be challenged by a motion to dissolve, and only an order entered in those proceedings is subject to appellate review. In support of this contention Seminole relies upon Greater Miami Development Corporation v. Pender,2 Tower Credit Corporation v. State,3 and Local Lodge No. 1248 of International Ass’n of Machinists v. St. Regis Paper Co.4 The Greater Miami Development case dealt with a petition for statutory certiorari to review an interlocutory restraining order. The Supreme Court, in holding that same was premature, observed that petitioners had made no attempt to dissolve as provided by Section 4971, Compiled General Laws of 1927. Obviously, this case is not controlling because no such procedural rule has been promulgated by the Supreme Court. The Fourth District Court of Appeal considered the question being reviewed in Tower Credit Corporation. There, the Court observed that it recommended the filing of a motion to dissolve and a hearing where the “. . . *facts may be fully developed and an order entered.”*(Emphasis supplied.) However, it is noted that in Tower Credit the appellate court reviewed the temporary injunction and sustained same upon the pleadings. The Local Lodge No. 1248 case insofar as same is here applicable held that the divisible part of an order denying defendant's motion to dissolve the temporary injunction is interlocutory in character and properly reviewable under Rule 4.2, Florida Appellate Rules, 32 F.S.A., relating to interlocutory appeals. The above cited authorities do not resolve the instant judicial problem, which is: Does this Court have jurisdiction to review the sufficiency of the pleadings which constitute the foundation for issuance by a trial judge of a temporary injunction, without awaiting the trial judge’s decision upon a motion to dissolve? We answer the foregoing question in the affirmative.

Temporary injunctions are creatures of equity. An order by a trial court without notice restraining the activities of a labor organization and its members is a temporary injunction. In issuing the instant order, the trial judge of necessity held that the allegations set forth in the petition coupled with facts itemized in supporting affidavits, if true, were legally sufficient. Article V, Section 5(3), Constitution of the State of Florida, 1971, F.S.A., provides that the Supreme Court may provide for review of interlocutory orders by the District Courts of Appeal. Pursuant to the cited constitutional provision, the Supreme Court has promulgated Florida Appellate Rule 4.2, subd. a, which provides that an aggrieved litigant has a right of appeal from “interlocutory orders in civil actions that from the subject matter or relief sought, are such as formerly were cognizable in equity. . . ,”5 As stated above, a temporary injunction is an order which was formerly cognizable in equity. The cited constitutional provision and Supreme Court Rule are clear and unequivocal in that all such orders of prior equitable cognizance, are appealable as a matter of right.

*217In appealing the instant order granting a temporary injunction without notice, United Steelworkers is not seeking a review of factual matters. It is seeking a review of the legal sufficiency of Seminole’s initial pleading and supporting affidavits. Thus, all facts well pleaded in the petition and set forth in the supporting affidavits are admitted to be true for the purposes of the instant appeal. We pause to note that had the trial judge refused to issue a temporary injunction upon the same pleadings and affidavits, such action would have been reviewable by interlocutory appeal. By like token, the sufficiency of the pleadings to sustain the issuance of such order is reviewable without a decision by the trial court on factual questions.

The motion to quash and dismiss is denied.

SPECTOR, C. J., concurs.

JOHNSON, J., dissents.

1

. The subject order was entitled “Temporary Restraining Order”; although the term “restraining order” is often used by Florida appellate courts in lieu of the term “temporary injunction”, it is observed that this jurisdiction does not statutorily recognize the practice of issuing temporary restraining orders as does a number of our sister states. Cf., Ducros v. St. Bernard Parish Police Jury, 200 La. 766, 8 So.2d 694 (1942), and Edward E. Morgan Co. v. City of Natchez, 188 Miss. 781, 196 So. 251 (1940).

2

. Greater Miami Development Corporation v. Pender, 142 Ma. 390, 194 So. 867 (1940).

3

. Tower Credit Corporation v. State, 183 So.2d 255 (4 Fla.App.1966).

4

. Local Lodge No. 1248 of International Ass’n of Machinists v. St. Regis Paper Co., 125 So.2d 337 (1 Fla.App.1961).

5

. State v. Smith, 260 So.2d 489, filed March 29, 1972 (Ma.); State v. Smith, 254 So.2d 402 (1 Fla.App.1971).

JOHNSON, Judge

(dissenting) :

I would grant the appellee’s motion to quash and dismiss this interlocutory appeal upon the ground that it is prematurely brought.

Subsequent to the entry of the Temporary Restraining Order on, to wit: March 2, 1972, the Respondent filed its answer in which, inter alia, it contends the Circuit Court lacked jurisdiction of the subject matter of the cause and other affirmative defenses. At the same time, March 2, 1972, Respondent filed its motion to dissolve the temporary injunction in which six grounds were alleged as reasons for dissolving the said temporary injunction. One of the grounds contained in the motion to dissolve is that the affidavit filed with the petition is insufficient to support the issuance of said temporary injunction. One other ground of the motion to dissolve was that the bond had not been posted pursuant to Fla.Rule Civ. Proc. 1.610, 31 F.S.A. This defect was corrected and approved by the trial court by entry of its order of March 7, 1972, with a nunc pro tunc effective date of February 21, 1972.

Respondent, in addition to filing its answer and motion to dissolve, also moved for judgment on the pleadings and served notice of hearing on the motion to dissolve and the first and second defenses contained in its answer, which hearing was set for March 15, 1972. Pursuant to this notice, hearing was held, consuming most of the day and into the first night, before the court recessed because of the lateness of the hour and that the court reporter was tired. The court suggested that the respective counsel meet with the court the next day to agree upon a mutual date to resume the hearing. Instead of trying to get another hearing date, the respondent filed notice of this interlocutory appeal in which is appealed the order of February 21, 1972, the temporary injunction, as well as the order of March 7, 1972, approving the bond and reaffirming the temporary injunction.

The appellee has filed its motion to quash and dismiss the interlocutory appeal upon the grounds that the same is premature and frivolous. At the hearing before this Court, the appellee admits that the main thrust of his motion is the fact that the appeal is premature and therefore frivolous.

I agree with the appellee that this appeal is premature and that same should be dismissed. Rule 1.610, Fla.Rule Civ.Proc., provides for the issuance of temporary injunctions and also provides for a motion to dissolve. I think the question of whether there is a manifest need of issuing the temporary injunction without notice is a question of judicial discretion and the issuance of such temporary injunction is not such an order that is appealable unless the motion to dissolve has first been acted upon by the trial court.

*218I think the law is well-stated as found in appellee’s brief where he quotes from citations with which I agree, as follows:

> “Defendants did not move to dissolve the injunction but short-circuited the trial court procedure by this appeal. In the absence of a motion to dissolve, review of a temporary restraining order has been denied. (Citing Greater Miami Development Corp. v. Pender, 142 Fla. 390, 194 So. 867) We strongly recommend filing a motion to dissolve and a hearing where the facts may be fully developed and an order entered. . . .” Tower Credit Corp. v. State (Fla.App.4th, 1966), 183 So.2d *255, 256.*

Among other jurisdictions:

> “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 its error if an adverse party is heard, as well as upon the theory that to allow an appeal from an ex parte order would violate the fundamental principle of appellate procedure that the appellate court should only review questions already considered and determined by the lower court.” 4 Am.Jur.2d, Appeal and Error, § 120, p. 636. See Also 42 Am.Jur.2d, Injunctions, § 347, p. 1152.

I think the law to be also well-stated in 17 Fla.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. . . . ”

The temporary injunction was to hold everything in status quo. The appellants had filed an answer as well as motion to dissolve, and at this state of the proceedings, the appellants had elected to pursue the provisions of Civil Procedure Rule 1.610(c) and (d) and therefore, in addition to the case law and decisions supra, the Circuit Court should not be short-circuited. The allegations in the affidavits and complaint are presumed to be true, and granting or dissolving of such temporary order is within the discretion of the chancellor and as such he should be permitted to review his own acts to correct, if in error.

For the reasons given supra, I cannot agree with the majority opinion, and I would grant the motion to dismiss the appeal on the ground that the same is prematurely brought.