### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

THOMAS G. HINNERS, MARY J. WAMSER
, and FLORIDA AFFORDABLE HOUSING, INC.
, Appellant s ,

v.

BRIAN J. HINNERS
, Appellee

.

No. 4D 20

- 1320

[ March 3, 2021 ]

Appeal of non final ord ers from the Ci r cuit 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. P i ke and Daniel Lustig of Pike & Lustig, LLP, West Palm Beach, for appellants

.

Michael H. Nullman of N ason, Yeager, Gerson, Harris & Fumero, P.A., Palm Beach Gardens, for appellee.

P ER C URIAM

.

Appellants Tom Hinners, Mary Wamser , and Florida Affordable Housing, Inc. (“FAHI”) timely appeal nonfinal orders denying their motion for prejudgme nt writ of repl e vin and granting a temporary injunction in favor of Appellee Brian Hinners. Appellants’ prejudgment writ of replevin

should hav e been granted in part, and the temporary injunction should not have been entered. We reverse in part. This Co urt has jurisdi c tion 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).

B ackground

In 2016, Tom and Brian entered into the Hinners Trust Agreement (“ Agr eement”) pro v iding that Tom and Brian would have equal control and ownership of each of the family business entities, including FAHI. Some p rovisions of the Agreement required amendments to certain2 entities’ bylaws. FAHI’s bylaws were to be amended so th at Tom and

B r ian 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 u nde rlying case.

In August 2017, Brian sued Tom, Mary, and several of the business entities regarding the governance and liquidity of the entitie s.

Prior to the suit, Tom and Mary voted to remove Brian as a signatory of FAHI’s bank accounts, and Brian’s co mpany health insurance was terminated because he did not pay his share of the group policy through another business entity. He obtained privat e health insurance

thereafter.

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

that allowe d B rian 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 re joined the group health insurance and instead filed a motion to compel issuance of benefits. He wanted to be ma de a

“contra c t 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 App ell ants to prov i de Brian with health insurance but did not make Brian a contract signer. The trial court ordered Brian to pay a $1,000 bond withou t holding an evidentiary hearing.

FAHI generated income through management fees of an affordable housing dev elo pment, which were typically wired to FAHI twice per year. For some reason, the housing development mailed two checks made payable to FAHI instea d of wiring the funds. Brian intercepted the checks and claims he deposited the funds into a corporate bank ac count

in FAH I ’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 r ecover the funds, or if the funds were deposited, the checkbook and check card of the bank account.

FAHI a rgu ed it was en t itled to immediate possession because its bylaws provided that “[t]he Treasurer shall retain custody of all corporate funds

and finan cial records.” FAHI’s annual report, which was filed by Brian in May 2019, provides that Tom is Treasurer. T he trial cou r t denied FAHI’s motion and found that replevin was not available to recover deposited3 funds in a bank account and that FAHI had not m et 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 re med y at law, (3 ) there is a substantial likelihood that the party will succeed on the merits, and (4) that considerations of the public interest suppor t the entry of the injunction.” Concerned Citizens for Judicial Fairness, Inc. v. Yacucci , 162 So. 3d 68 , 7 2 (Fla. 4th D CA 2014). “Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justi fy entry of a preliminary injunction.” City of Jacksonville v. Naegele Outdoor Advert.

Co. , 634 So. 2d 7 50, 754 (Fla. 1 s t DCA 1994).

Brian’s motion to compel did not request injunctive relief requiring Appellants to provide him with health insurance. Bri an’s only reference to a temporary injunction was the final paragraph of his post

- hearing memorandum, wh ich contained c o nclusory 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 pro ces s. See DeMa i o 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 th e issue, the entry of a temporary injunction in favor of appellee over appellant's objection was error. ”). In this ca s e, 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 wit hou t notice if t he

movant shows: (1) that immediate, irreparable harm will result before the adverse party can be heard and (2) the movant’s attorney cert ifies in writing any efforts made to give notice and reasons why notice should not be required. Fla. R. Civ. P. 1.6 1 0 (a)(1).4 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 t o t he inabilit y 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 n ot at risk of i r reparable harm due to lack of insurance coverage because he has private insurance. He noted in his motion to compel that the cost of privat e insurance is approximately double the cost of the group policy. Those additional costs can be rem edi ed with

mon e t ary 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 c our t erred by re quir i n g Brian to pay a $1,000 bond without holding an evidentiary hearing. We agree. “No temporary injunction shall be entered unless a bon d is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damage s sust aine d 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 th e opportunity to present evidence regarding the appropriate amount of the injunction bond.” Offsho re Marine T owing , In c

. 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 avail able to recover a sum of ‘money’ claimed by the plaintiff and ‘possessed’ by the plaintiff only i n th e form o f ‘fu nds’ on d eposit in the defendant ’ s bank checking account.” Williams Mgmt. Enters. , Inc. v. Buonauro , 489 So. 2d 160, 168 (Fla. 5th

DCA 19 86). The property must be capable “of being specifically described in a writ of replevin and located, id entified, and seized b y the sheriff executing the writ.” Id. at 163.

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

those f unds. However, Appellants are entitled to possession of the

checkbook and check card of the bank acc oun t.

In Land

- Cellul a r 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 Southern5 District relied on Willia m s and fo und that the fun ds in t h e 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

checkb o oks thems el v es.” Id. at 1353.

Brian relies on Lan d

- 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. H ere, the ba n k account was allege d l y 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 re t ain custo dy of corporate funds. O n 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. B luewater

Ke y RV Ownership Park

, 1 9 7 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 co n veyance o f m onies
prematu re. Th e recourse for potentia l 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).

F i nally, Ap pe l lants argue t hat the t rial court analyzed it s 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 impo s es a high er standard for obtaini n g a writ of replevin wi thout 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. Re y nolds , 87 2 S o. 2d 290, 29 4 (Fla. 2 d DCA 2004). The tria l 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 o f replevin

. We reverse in part a n d remand

for the trial co urt to dissolve the temporary injunction and issue a6 prejudgment writ of replevin granting FAHI possession of the checkbook

and check card.

Reversed in part and r emanded with instructions

.

L EVINE
, C.J., G ROSS and K UNTZ

, JJ., co nc ur.

* * *

Not fin al unti l disposition of timely filed motion for rehear ing.