I frequently have clients who come in and tell me they need an Emergency Motion filed for __________(fill in the blank). The emergency could be that their Husband/Wife is taking the furniture, going to turn off the electricity, or cancel the Husband's/Wife's car insurance. All very important issues, but does it rise to the level of filing an Emergency Ex-Parte Injunction? When is an emergency really and emergency in the eyes of the court?
In the recently released case of Hunter v. Hunter, 2D09-4878, 2010 WL 2077158 (Fla. Dist. Ct. App), the District Court, says that a trial court should only order relief in an Ex-parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice. See City of Boca Raton v. Boca Raton Airport Auth., 768 So. 2d 1191, 1192 (Fla. 4th DCA 2000). Thus a motion seeking ex-parte relief "must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time required to notice a hearing would actually permit the threatened irreparable injury to occur." Id. at 1193 (quoting Smith v. Knight, 679 So. 2d 359, 361 (Fla. 4th DCA 1996)). In the case that was before the DCA, it found that the Wife's motion failed to demonstrate either an immediate threat of irreparable injury or a reason notice could not be given.
The DCA further opined that to the extent that the order grants injunctive relief in the Hunter case, they observed that almost none of the required procedures were followed. According to Florida Family Law Rule of Procedure 12.610(a), injunctive relief in family law cases not related to the need for protection against domestic violence, repeat violence, dating violence, or sexual violence is governed by Florida Rule of Civil Procedure 1.610. Rule 1.610(a)(1), which permits the entry of a temporary injunction without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.
In the Hunter case, the Wife's motion was neither verified nor supported by affidavits. Thus the motion was deficient under rule 1.610(a)(1)(A). Also, the motion did not contain the attorney's certification required under rule 1.601(a)(1)(B). Furthermore, the order itself is defective because it contains no explanation of the reasons for its entry other than "[t]he Emergency Motion is well taken." Thus the order violates rule 1.610(c), which requires that an injunction specify the reasons for entry. See also Hathcock v. Hathcock, 533 So. 2d 802, 804 (Fla. 1st DCA 1988) (holding that an order enjoining the husband from disposing of marital property and awarding the wife temporary exclusive use and possession of the marital home failed to comply with rule 1.610 because it contained no findings concerning why the injury would be irreparable or why the order was granted without notice). Finally, it does not appear that the trial court required the Wife to post a bond as required by rule 1.610(b).
The Court held that the Wife's argument about the Notice Requirement of Rule 1.610(a) concerning the entry of temporary injunctions without notice was woefully insufficient. To send a copy of a motion to opposing counsel without a notice of hearing and to present the motion to the court for the entry of an order granting the motion an hour or so later is unquestionably inadequate notice -- if it may even be deemed notice at all. See City of Ormond Beach v. City of Daytona Beach, 794 So. 2d 660, 663 (Fla. 5th DCA 2001) ("[N]otice encompasses a reasonable opportunity to prepare and offer evidence."); Fla. High Sch. Activities Ass'n v. Benitez, 748 So. 2d 358, 359 (Fla. 5th DCA 1999) ("Notice for temporary injunction purposes means a meaningful opportunity to prepare in order to present evidence and secure a record of the proceedings.").
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