Opinion
No. 2D22-464.
11-30-2022
GULF COAST COMMERCIAL, LLC, d/b/a Hybridge, Appellant, v. KOS CORP., Winbran, Inc., Sarabara Corp., and Nickanna Corp., Appellees.
Shane T. Costello and A. Evan Dix of Hill, Ward & Henderson, P.A., Tampa, for Appellant. Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa; Michael J. Labbee and Tyler A. Hayden of Phillips, Hayden & Labbee, LLP, St. Petersburg, for Appellees.
Shane T. Costello and A. Evan Dix of Hill, Ward & Henderson, P.A., Tampa, for Appellant.
Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa; Michael J. Labbee and Tyler A. Hayden of Phillips, Hayden & Labbee, LLP, St. Petersburg, for Appellees.
ATKINSON, Judge.
Gulf Coast Commercial, LLC, doing business as Hybridge (Hybridge), appeals the trial court's nonfinal order granting KOS Corp.; Winbran, Inc.; and Sarabara Corp.'s (collectively, Property Owners) motion for temporary injunction. We reverse because the trial court altered the status quo and resolved the merits of counts 2, 4, and 6 of the Property Owners' complaint by granting the temporary injunction. Because we reverse on this basis, we do not reach the other issues Hybridge raised on appeal.
A fourth entity, Nickanna Corp., is also a plaintiff in the underlying lawsuit with the other Property Owners. However, Nickanna Corp. had withdrawn its motion for temporary injunction prior to the hearing on the Property Owners' motions for temporary injunction. Therefore, the trial court denied Nickanna Corp.'s motion as moot. Hybridge has not challenged this ruling in this appeal.
The Property Owners each own and operate shopping centers on their respective properties in Pinellas, Polk, and Manatee counties. Hybridge is a commercial property management firm. The Property Owners each entered into separate agreements with Hybridge to manage their respective properties.
In relevant part, Article 10.3 of each of the agreements provided the following:
Upon termination of this Agreement for any reason [Hybridge] shall deliver to [the Property Owner] the following with respect to the property:
(a) a final accounting, reflecting the balance of income and expenses on the Property as of the date of termination or withdrawal to be delivered within fifteen (15) days following such termination.... [and]
...
(c) All records, contracts, leases, checks, ledgers, receipts for deposits, unpaid bills and other papers or documents which pertain to the Property in [Hybridge's] possession, same to be delivered to [the Property Owner] promptly following such termination....
On May 14, 2021, Hybridge terminated its agreements with the Property Owners, effective July 13, 2021. Hybridge did not deliver a final accounting and the other required documents to any of the Property Owners within fifteen days following termination, as provided in Article 10.3(a) and (c).
The Property Owners filed a lawsuit against Hybridge. In the complaint, each Property Owner brought two counts alleging breach of contract—one each requesting damages (Counts 1, 3, and 5) and one each requesting injunctive relief (Counts 2, 4, and 6)—and one count alleging breach of fiduciary duty against Hybridge (Counts 9, 10, and 11). In Counts 2, 4, and 6, the Property Owners alleged that Hybridge breached the agreements in several ways, including by failing to comply with its obligations under Article 10.3(a) and (c). The Property Owners alleged that as a result they have been unable to prepare their taxes, collect rents, pay vendors, and otherwise manage their properties. Therefore, they requested an injunction requiring Hybridge to deliver a final accounting and all required documentation pursuant to Article 10.3 of the agreements. The Property Owners filed a motion, seeking a temporary injunction requiring Hybridge to provide the documentation and final accounting pursuant to Article 10.3 of the agreements. The trial court granted the Property Owners' motion and ordered Hybridge to deliver a final accounting and all the required documentation to the Property Owners. Hybridge timely appealed.
"[A] temporary injunction is an extraordinary remedy that can only be granted if the movant establishes (1) a likelihood of irreparable harm, (2) unavailability of an adequate legal remedy, (3) substantial likelihood of succeeding on the merits, and (4) support for the injunction within considerations of public interest." Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1014 (Fla. 2d DCA 2005).
"The general function of a temporary injunction is to preserve the status quo for disputing parties until the court is able to resolve the underlying dispute on its merits." Coscia v. Old Fla. Plantation, Ltd., 828 So.2d 488, 490 (Fla. 2d DCA 2002) (citing State Agency for Health Care Admin. v. Cont'l Car Serv., Inc., 650 So.2d 173 (Fla. 2d DCA 1995)). The status quo is "the last, actual, peaceable, noncontested condition which preceded the pending controversy." Nazia, Inc. v. Amscot Corp., 275 So.3d 702, 705 (Fla. 5th DCA 2019) (quoting Chi. Title Ins. Agency of Lee Cnty. v. Chi. Title Ins. Co., 560 So.2d 296, 297 (Fla. 2d DCA 1990)). "A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction." Nazia, 275 So. 3d at 706 (quoting Charlotte County v. Vetter, 863 So.2d 465, 469 (Fla. 2d DCA 2004)); see also LaRose v. A.K., 32 So.3d 77, 78 (Fla. 2d DCA 2009).
In Counts 2, 4, and 6 of their complaint, the Property Owners requested that the trial court enter an injunction requiring Hybridge to prepare and deliver a final accounting and provide certain documentation to the Property Owners. In their motion for temporary injunction, the Property Owners sought and were awarded the same relief. See Garcia v. Dumenigo, 46 So.3d 1085, 1087 (Fla. 3d DCA 2010) ("[T]he purported shareholder distribution to Garcia and Chavez [in the motion for temporary injunction] is, in actuality, part of the `controversy' between the parties."). Therefore, the trial court abused its discretion by going beyond preserving the status quo and granting the ultimate relief requested by the Property Owners without holding the final evidentiary hearing. See id.; cf. Nazia, 275 So. 3d at 706.
The Property Owners argue that the trial court's order preserves the status quo—that is, the last peaceable, noncontested condition before the parties' current dispute—by requiring Hybridge to provide the final accounting and business records which are critical for the Property Owners to run their businesses. Although the trial court's order arguably could have preserved some incidental aspect of the status quo by allowing the Property Owners to continue to conduct their affairs, it does not preserve the last peaceable, noncontested status quo because the Property Owners' assertion that Hybridge has an obligation to perform the accounting is precisely what Hybridge contests in the lawsuit. In other words, the current dispute in the litigation is whether Hybridge has a contractual obligation to do the thing ordered in the temporary injunction.
The Property Owners also argue that preservation of the status quo does not "permit a wrongdoer to shelter himself behind a suddenly and secretly changed status." See Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541, 544 (1931). The Property Owners are correct that "where, before the granting of the injunction, the defendant has ... changed the condition of things [suddenly and secretly], the court ... may ... by preliminary mandatory injunction, compel him to restore the subject-matter of the suit to its former condition" and that "in so doing the court acts without any regard to the ultimate merits of the controversy." Id.
However, Bowling does not have any application in this case. Hybridge did not "suddenly and secretly" change the status quo. Id. Hybridge did not recently begin doing something the Property Owners insist it should be enjoined from doing to limit further damage—i.e., a request to restore the status quo to a point in time before the allegedly deleterious behavior of the respondent began. Rather, Hybridge has been refraining from doing something that Property Owners insist Hybridge should have been doing. The Property Owners' "former condition" would not be restored by the trial court ordering an accounting that Hybridge contends it is under no obligation to perform. The ultimate merits in this case are whether Hybridge is still required to provide an accounting despite the Property Owners' allegedly anticipatory breach by failing to pay management fees. By granting the injunction, the trial court did "act[] with[] regard to the ultimate merits of the controversy," unlike in Bowling. See id. Therefore, the trial court abused its discretion by granting the temporary injunction.
We reverse the trial court's order granting the Property Owners' motion for temporary injunction and remand for further proceedings.
Reversed and remanded.
STARGEL and LABRIT, JJ., Concur.