M.I. Industries USA Inc. v. Attorneys' Title Insurance Fund, Inc.
6 So. 3d 627
Fla. Dist. Ct. App.
2009
Check Treatment
6 So.3d 627 (2009)

M.I. INDUSTRIES USA INC. and Eromonsele M. Imoisili, Appellants,
v.
ATTORNEYS' TITLE INSURANCE FUND, INC. and Organized Title, LLC, Appellees.

No. 4D07-4992.

District Court of Appeal of Florida, Fourth District.

January 5, 2009.
Order Denying Rehearing and Certifying Question in Part May 6, 2009.

*628 Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellants.

Aaron C. Wong of Cohen Fox, P.A., Miami, for appellee Attorneys' Title Insurance Fund, Inc.

STEVENSON, J.

M.I. Industries USA, Inc. (M.I.) appeals the trial court's denial of its motion to dissolve an ex parte injunction entered in favor of the Attorneys' Title Insurance Fund, Inc. (the Fund) enjoining M.I. from transferring or withdrawing funds from its bank accounts and selling or otherwise disposing of any real or personal property. The Fund has filed a cross-appeal contesting the trial court's decision to release a portion of M.I.'s frozen assets and to increase the injunction bond. Because a claim for money damages fails to provide a sufficient basis for injunctive relief, we reverse the order denying M.I.'s motion to dissolve the injunction and we affirm the Fund's cross-appeal as moot.

In the action below, the Fund asserted that one of its member-agents participated in illegal land flipping schemes with M.I. and a title company. The member-agent allegedly funneled the substantial profits acquired by these schemes through her attorney's trust account into M.I.'s bank accounts. Because the title company impermissibly used the Fund's title insurance and closing forms to conduct these deals, the Fund maintained that the substantial profits should be preserved so the money would remain available to insure the nonparty purchasers. The trial court granted the Fund's ex parte motion for injunction. Following a hearing, the trial court denied M.I.'s motion to dissolve the injunction, but modified some of its terms. The instant appeal and cross-appeal followed.

Generally, an injunction seeking to freeze a bank account is improper. E.g., Hiles v. Auto Bahn Fed'n, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) (holding that the loss of money from a bank account does not constitute irreparable harm because that loss can be compensated *629 by money damages). However, injunctive relief is appropriate to protect what is asserted to be the res of a trust during the pendency of litigation. Gruder v. Gruder, 433 So.2d 23, 24 (Fla. 4th DCA 1983) (affirming injunction where trustee feared removal of trust's liquid assets). If the enjoined money remained specifically identifiable in the member-agent's attorney's trust account, then the injunction may have been proper. However, because the member-agent transferred the money to M.I.'s bank accounts, commingling the funds, we find the instant injunction improper.

Furthermore, the Fund expressly sought damages in its complaint against M.I. for unjust enrichment. Thus, money damages will suffice to compensate any loss incurred by the Fund. See Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000) (holding that where plaintiffs filed a complaint for conversion, unjust enrichment, and injunctive relief, they had an adequate remedy at law). Regardless of the Fund's allegation that M.I. will dissipate its bank accounts, a judgment for money damages is proper notwithstanding the possibility that it could be uncollectible. See id. at 706 (citing Hiles, 498 So.2d at 999).

Finally, it is improper to enter an injunction preventing a party from using or disposing of its assets prior to the conclusion of a legal action. Briceno v. Bryden Invs., Ltd., 973 So.2d 614, 616-17 (Fla. 3d DCA 2008) (affirming denial of motion to enjoin interest accrued on res of constructive trust). Accordingly, we reverse the trial court's denial of M.I.'s motion and remand with directions to dissolve the injunction.

KLEIN, J., and KELLEY, GLENN D., Associate Judge, concur.

ON MOTION FOR REHEARING AND REHEARING EN BANC & MOTION TO CERTIFY QUESTION AND TO CERTIFY CONFLICT

STEVENSON, J.

We deny the motion for rehearing and rehearing en banc. The motion points out that temporary injunctions are appropriate in some equitable actions and states that this court "has recognized the use of `unjust enrichment' in causes of action based in law and equity." To the contrary, this court has squarely held that an action for unjust enrichment is an action at law. See, e.g., Commerce P'ship 8098 Ltd. P'ship v. Equity Contracting Co., 695 So.2d 383, 386-87 (Fla. 4th DCA 1997).

We grant the motion for certification in part. We agree with the panel in Weinstein v. Aisenberg, 758 So.2d 705 (Fla. 4th DCA 2000), that the current definition of "no adequate remedy at law" can result in an injustice in a case such as this one. See id. at 707-12 (Gross, J., concurring specially). Therefore, we certify the following question as one of great public importance:

INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

DAMOORGIAN, J., and KELLEY, GLENN D., Associate Judge, concur.