DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THOMAS G. HINNERS, MARY J. WAMSER,

and FLORIDA AFFORDABLE HOUSING, INC.,

Appellants,

v.

BRIAN J. HINNERS,

Appellee.

No. 4D20-1320 

[March 3, 2021]

Appeal of nonfinal orders from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Gerald Joseph Curley Jr., Judge; 

L.T. Case No. 50-2017-CA-009076-XXXX-MB.

Michael J. Pike and Daniel Lustig of Pike & Lustig, LLP, West Palm 

Beach, for appellants.

Michael H. Nullman of Nason, Yeager, Gerson, Harris & Fumero, P.A., 

Palm Beach Gardens, for appellee.

PER CURIAM.

Appellants Tom Hinners, Mary Wamser, and Florida Affordable 

Housing, Inc. (“FAHI”) timely appeal nonfinal orders denying their motion 

for prejudgment writ of replevin and granting a temporary injunction in 

favor of Appellee Brian Hinners. Appellants’ prejudgment writ of replevin 

should have been granted in part, and the temporary injunction should 

not have been entered. We reverse in part. This Court has jurisdiction 

over appeals from orders granting injunctions or determining the right to 

immediate possession of property. Fla. R. App. P. 9.130(a)(3)(B), 

(a)(3)(C)(ii).

Background

In 2016, Tom and Brian entered into the Hinners Trust Agreement 

(“Agreement”) providing that Tom and Brian would have equal control 

and ownership of each of the family business entities, including FAHI. 

Some provisions of the Agreement required amendments to certain 
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entities’ bylaws. FAHI’s bylaws were to be amended so that Tom and 

Brian must agree on designating directors. At the time of signing, Tom, 

Mary, and Brian were FAHI’s directors, but Mary was not a party to the 

Agreement. FAHI’s bylaws were never amended, and Brian did not seek 

to have them amended in the underlying case.

In August 2017, Brian sued Tom, Mary, and several of the business 

entities regarding the governance and liquidity of the entities. 

Prior to the suit, Tom and Mary voted to remove Brian as a signatory 

of FAHI’s bank accounts, and Brian’s company health insurance was 

terminated because he did not pay his share of the group policy through 

another business entity. He obtained private health insurance 

thereafter. 

In November 2019, Tom and Brian entered into a written agreement 

that allowed Brian and his family to be added back to FAHI’s group 

health insurance if Brian paid his share through the other business 

entity. Brian never rejoined the group health insurance and instead filed 

a motion to compel issuance of benefits. He wanted to be made a 

“contract signer” on the entities’ payroll provider to control enrollment in 

the group policy. He did not request any injunctive relief.

The trial court held a non-evidentiary hearing on Brian’s motion to 

compel and entered an order requiring Appellants to provide Brian with 

health insurance but did not make Brian a contract signer. The trial 

court ordered Brian to pay a $1,000 bond without holding an evidentiary 

hearing.

FAHI generated income through management fees of an affordable 

housing development, which were typically wired to FAHI twice per year. 

For some reason, the housing development mailed two checks made 

payable to FAHI instead of wiring the funds. Brian intercepted the 

checks and claims he deposited the funds into a corporate bank account 

in FAHI’s name, though he would not disclose the bank, and the trial 

court did not compel him to do so.

FAHI sought a writ of replevin to recover the funds, or if the funds 

were deposited, the checkbook and check card of the bank account. 

FAHI argued it was entitled to immediate possession because its bylaws 

provided that “[t]he Treasurer shall retain custody of all corporate funds 

and financial records.” FAHI’s annual report, which was filed by Brian in 

May 2019, provides that Tom is Treasurer. The trial court denied FAHI’s 

motion and found that replevin was not available to recover deposited 
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funds in a bank account and that FAHI had not met the statutory 

burden to establish the right to replevin. 

Analysis

Injunction

Appellants argue that the trial court erred and denied them due 

process by issuing a temporary injunction that Brian did not request.

“The party seeking the injunction must prove: (1) it will suffer 

irreparable harm unless the injunction is entered, (2) there is no 

adequate remedy at law, (3) there is a substantial likelihood that the 

party will succeed on the merits, and (4) that considerations of the public 

interest support the entry of the injunction.” Concerned Citizens for 

Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72 (Fla. 4th DCA 2014). 

“Clear, definite, and unequivocally sufficient factual findings must 

support each of the four conclusions necessary to justify entry of a 

preliminary injunction.” City of Jacksonville v. Naegele Outdoor Advert. 

Co., 634 So. 2d 750, 754 (Fla. 1st DCA 1994).

Brian’s motion to compel did not request injunctive relief requiring 

Appellants to provide him with health insurance. Brian’s only reference 

to a temporary injunction was the final paragraph of his post-hearing 

memorandum, which contained conclusory statements that he would 

suffer irreparable harm with no remedy at law and was likely to succeed 

on the merits. 

An injunction entered in the absence of proper pleading and without 

an evidentiary hearing is a violation of due process. See DeMaio v. Starr, 

791 So. 2d 1116, 1117 (Fla. 4th DCA 2000) (“Without pleadings to 

support a request for relief and the right to be heard on the issue, the 

entry of a temporary injunction in favor of appellee over appellant's 

objection was error.”). In this case, the trial court entered a temporary 

injunction without a proper pleading and without an evidentiary hearing. 

Further, the injunction did not meet the requirements of Rule 1.610, 

which allows for the entry of a temporary injunction without notice if the 

movant shows: (1) that immediate, irreparable harm will result before the 

adverse party can be heard and (2) the movant’s attorney certifies in 

writing any efforts made to give notice and reasons why notice should 

not be required. Fla. R. Civ. P. 1.610(a)(1). 
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Appellants also argue that Brian did not establish the four elements 

required for issuance of a temporary injunction. The trial court found 

that, if Appellants did not provide insurance, Brian could suffer 

irreparable harm due to the inability to obtain medical treatment. The 

court concluded that Brian had no adequate remedy at law because 

damages would not be a solution for the potential absence of medical 

coverage. These findings are not supported by the record. 

Brian is not at risk of irreparable harm due to lack of insurance 

coverage because he has private insurance. He noted in his motion to 

compel that the cost of private insurance is approximately double the 

cost of the group policy. Those additional costs can be remedied with 

monetary damages. “Irreparable harm is not established if the harm can 

be adequately compensated by a monetary award.” Bautista REO U.S., 

LLC v. ARR Invs., Inc., 229 So. 3d 362, 365 (Fla. 4th DCA 2017).

Appellants also argue the trial court erred by requiring Brian to pay a 

$1,000 bond without holding an evidentiary hearing. We agree. “No 

temporary injunction shall be entered unless a bond is given by the 

movant in an amount the court deems proper, conditioned for the 

payment of costs and damages sustained by the adverse party if the 

adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b). “[B]oth 

parties must be provided with the opportunity to present evidence 

regarding the appropriate amount of the injunction bond.” Offshore 

Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So. 2d 510, 511 (Fla. 

4th DCA 2001).

Replevin

Generally, “[t]he action of replevin is not available to recover a sum of 

‘money’ claimed by the plaintiff and ‘possessed’ by the plaintiff only in

the form of ‘funds’ on deposit in the defendant’s bank checking account.” 

Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 168 (Fla. 5th 

DCA 1986). The property must be capable “of being specifically 

described in a writ of replevin and located, identified, and seized by the 

sheriff executing the writ.” Id. at 163. 

If Brian deposited the checks, then replevin is not available to recover 

those funds. However, Appellants are entitled to possession of the 

checkbook and check card of the bank account. 

In Land-Cellular Corp. v. Zokaites, 463 F. Supp. 2d 1348 (S.D. Fla. 

2006), the defendant sought a writ of replevin to recover funds from the 

plaintiff’s bank account and the checkbook. Id. at 1352. The Southern 
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District relied on Williams and found that the funds in the bank account 

were not recoverable and “neither is Defendant entitled to recover 

Plaintiffs’ checkbooks, as the issue in this case is the intangible debt 

represented by the checkbooks, rather than possession of the 

checkbooks themselves.” Id. at 1353. 

Brian relies on Land-Cellular for the proposition that the checkbook 

and check card are not recoverable, but this case is distinguishable. In 

Land-Cellular, the defendant sought possession of the plaintiff’s

checkbook. Here, the bank account was allegedly opened in FAHI’s 

name, so the check card and checkbook belong to FAHI.

Appellants established an immediate right to possession of the check 

card and checkbook. FAHI’s bylaws provide that the Treasurer of FAHI 

shall retain custody of corporate funds. On May 1, 2019, Brian filed 

FAHI’s Annual Report, which shows that Tom is Treasurer. Although 

Tom and Brian entered into the Agreement, FAHI’s bylaws were never 

amended and remain the controlling authority. See Clark v. Bluewater 

Key RV Ownership Park, 197 So. 3d 59, 62 (Fla. 3d DCA 2012).

The trial court also improperly reasoned that alleged set-offs “between 

Brian and Tom, and Brian and FAHI, and Brian, Tom and the other 

[business entities]” made forcing prejudgment conveyance of monies 

premature. The recourse for potential set-offs is money damages, not 

retention of the property subject to replevin. See Prestige Rent-A-Car, Inc. 

v. Advantage Car Rental & Sales, Inc. (ACRS), 656 So. 2d 541, 545 (Fla. 

5th DCA 1995).

Finally, Appellants argue that the trial court analyzed its motion 

under the incorrect statute. FAHI sought relief pursuant to sections 

78.065 and 78.067, Florida Statutes. The trial court order denying 

FAHI’s motion relies upon section 78.068, which imposes a higher

standard for obtaining a writ of replevin without notice and hearing. 

Compare § 78.067(2), Fla. Stat. (2019) with § 78.068, Fla. Stat. (2019). 

Section 78.068 is inapplicable to this case because there was notice and 

hearing. See Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA 

2004). The trial court should have analyzed FAHI’s motion under section 

78.067, not section 78.068.

Conclusion

The trial court erred in entering the temporary injunction and denying 

Appellants’ prejudgment writ of replevin. We reverse in part and remand 

for the trial court to dissolve the temporary injunction and issue a 
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prejudgment writ of replevin granting FAHI possession of the checkbook 

and check card.

Reversed in part and remanded with instructions. 

LEVINE, C.J., GROSS and KUNTZ, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.