THOMAS, Judge.
In September 2012, Jacobs Broadcast Group, Inc. ("Jacobs"), sold four radio stations ("the stations") to Jeff Beck Broadcasting Group, LLC ("Beck"). The contract memorializing that sale contained a noncompetition agreement prohibiting Jacobs from competing with Beck for a period of three years. The noncompetition agreement provided, in pertinent part:
Years before the sale of the stations, Jacobs had applied to the Federal Communications Commission ("the FCC") for a translator construction permit ("the permit"). The record reflects that such a permit issued by the FCC allows its owner to build and operate a facility capable of converting AM signals to the FM frequency band for broadcast. Jacobs had not been awarded the permit at the time it sold the stations to Beck, and it could therefore not sell the permit to Beck at that time. When Jacobs received notice that it had been awarded the permit, it contacted Beck and offered to sell Beck the permit. Beck declined to purchase the permit. Jacobs then contacted a competing radio station serving the Calhoun County area and offered to sell it the permit.
On May 1, 2013, Beck filed a complaint in the Calhoun Circuit Court seeking a temporary restraining order ("TRO"), a preliminary injunction, and a permanent injunction restraining Jacobs from selling or transferring the permit, because, Beck contended, Jacobs's sale of the permit would violate the noncompetition agreement.
Jacobs filed a motion to dismiss Beck's complaint and a motion to dissolve the TRO on May 14, 2013. On that same day, the trial court reset the May 21, 2013, hearing for May 15, 2013, stating in its order that it would consider Jacobs's motion to dissolve at the May 15, 2013, hearing. Both parties appeared at the hearing on May 15, 2013, at which time the trial court stated that it would consider both the motion to dissolve and Beck's request for a preliminary injunction. Counsel for Jacobs objected, arguing that a preliminary injunction "can't be issued without notice" and that it was not "prepared to go against the preliminary injunction" because it did not have its "FCC expert here to testify regarding [the permit]." Counsel for Beck argued that the TRO would expire after 10 days and that it should be entitled to put on evidence regarding the elements required to establish a right to a preliminary injunction at the May 15, 2013, hearing because of the need for the hearing on the preliminary injunction to be held before the expiration of the TRO. The trial court overruled Jacobs's objection, noting specifically that 5 days of the 10-day period during which the TRO would remain effective had already elapsed.
After taking the testimony of James Jacobs and Jeff Beck, the principal owners of Jacobs and Beck, respectively, the trial court concluded the hearing; from the bench, the trial court ordered the parties
Our supreme court has set out the standard of review governing the appeal of an order granting a preliminary injunction as follows:
Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1175-76 (Ala.2008).
On appeal, Jacobs's main argument is that the trial court erred in holding a consolidated hearing on its motion to dissolve the TRO and Beck's request for a preliminary injunction without giving Jacobs sufficient notice that the preliminary injunction would be considered at the May 15, 2013, hearing. Indeed, Rule 65(a)(1), Ala. R. Civ. P., states that "[n]o preliminary injunction shall be issued without notice to the adverse party." Our supreme court has twice considered the issue whether a lack of notice that a trial court intends to consider a preliminary injunction at a particular hearing is sufficient basis to reverse an order issuing that injunction.
In Southern Homes, the appellant, Southern Homes, had received only two hours' notice of the hearing on the preliminary injunction, had been able to appear at the hearing only by telephone, and had not been able to submit evidence, to call witnesses, or to present any written argument in opposition to the motion seeking the preliminary injunction. Southern Homes, 57 So.3d at 105. Our supreme court relied on Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), which interpreted the notice requirement of Rule 65(a)(1), Fed.R.Civ.P., the language of which is nearly identical to the language of Alabama's version of Rule 65(a)(1).
Our supreme court also determined that the preliminary-injunction order in Funliner had been issued without providing the opponents notice that the preliminary
We conclude that both Southern Homes and Funliner are distinguishable from the present case. Unlike the opponents of the preliminary injunctions in Southern Homes and in Funliner, Jacobs had notice that a TRO had been entered and notice of the request for a preliminary injunction; Jacobs had moved for dissolution of the TRO, which precipitated, at least in part, the hearing; Jacobs's counsel was present at the hearing, offered testimonial evidence, and cross-examined Beck's witness; and Jacobs was permitted to, and did, submit a seven-page post-hearing brief to the trial court before the trial court ruled on the request for a preliminary injunction. Furthermore, Jacobs, unlike the opponents in both Southern Homes and Funliner, was prepared to present argument relating to the propriety of the TRO, and, because the elements necessary to establish the right to a TRO and the right to a preliminary injunction are identical, see Lott v. Eastern Shore Christian Ctr., 908 So.2d 922, 927 (Ala.2005) ("The elements required for the issuance of a TRO are the same as the elements required for the issuance of a preliminary injunction."), Jacobs had the ability to present a defense to the issuance of the preliminary injunction while it argued about the propriety of the TRO. See United States v. Alabama, 791 F.2d 1450, 1458 (11th Cir.1986) (indicating that the "conversion of a TRO hearing to a preliminary injunction hearing" is not presumptively an abuse of the trial court's discretion because of the similarities in the two types of relief).
Beck, relying on Martin v. Patterson, 975 So.2d 984, 991-92 (Ala.Civ.App.2007), argues that Jacobs was required, and failed, to demonstrate prejudice as a result of the allegedly inadequate notice that the request for a preliminary injunction would be considered at the May 15, 2013, hearing. We held in Martin that a party objecting to the consolidation of a hearing on a preliminary injunction with a final trial on the merits under Rule 65(a)(2), Ala. R. Civ. P., must not only demonstrate surprise that the hearing was consolidated with a trial on the merits but also demonstrate that the consolidation resulted in prejudice to that party. Martin, 975 So.2d at 991-92. To demonstrate such prejudice,
We realize that the issue in Martin is slightly different than the one presented here. However, we can see no basis for distinguishing the consolidation of a trial on the merits with a preliminary-injunction hearing under Rule 65(a)(2) from the consolidation of a hearing on a motion to dissolve a TRO from a hearing on a request for a preliminary injunction held under Rule 65(b).
In its brief on appeal, Jacobs does not specify what prejudice befell it as a result of the consolidation of the hearings on its motion to dissolve the TRO and Beck's request for a preliminary injunction. At the hearing, Jacobs mentioned that it could not call a witness it referred to as its FCC expert; however, Jacobs did not indicate what testimony it intended to adduce from the FCC expert or how that testimony would be relevant to the factors that are considered by a trial court considering the issuance of a preliminary injunction. At the hearing, Beck and Jacobs presented testimony, which was largely consistent, explaining what the permit would allow and that the permit would result in its purchaser's ability to broadcast an AM signal on the FM frequency band in at least some portion of the area covered by the noncompetition agreement. Nothing in the record indicates that the FCC expert Jacobs mentioned at the hearing would have presented the trial court with "`evidence of significance'" had he or she been able to testify. Martin, 975 So.2d at 992 (quoting Wright & Miller, § 2950). Jacobs failed to present specific allegations of prejudice at the hearing or in its brief on appeal. Thus, we cannot conclude that the trial court's order issuing a preliminary injunction should be reversed because of the lack of advance notice to Jacobs of the consideration of the merits of Beck's request for a preliminary injunction at the hearing on Jacobs's motion to dissolve the TRO.
Jacobs also asserts on appeal arguments regarding the sufficiency of the evidence to support the issuance of the preliminary injunction; however, those arguments are supported by only one citation to general authority setting out the elements required to secure a preliminary injunction. Jacobs's argument that Beck failed to establish immediate and irreparable injury and a lack of an adequate remedy at law are woefully underdeveloped, containing very little in the way of discussion or analysis. Likewise, Jacobs's reference to Beck's failure to pursue administrative remedies with the FCC is similarly void of development and also lacks citation to any authority indicating that Beck was required to exhaust any administrative remedies before seeking enforcement of the noncompetition agreement. "Rule 28(a)(10) [, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Thus, we conclude that Jacobs has waived those arguments, and we decline to consider them further.
Furthermore, to the extent Jacobs might be arguing in its brief to this court that the noncompetition agreement is void, in whole or in part, or that the agreement does not prohibit the sale of the permit, we note that Jacobs did not bother to state those arguments in its appellate brief; instead, Jacobs merely mentioned that it had presented caselaw to the trial court, presumably in its post-hearing brief, that "directly rebutted and rebuffed" Beck's arguments relating to the noncompetition agreement. Even if we were inclined to consider Jacobs's passing reference to the "case law [it had] cited" in the proceedings below as an attempt to incorporate by reference that post-hearing brief, such a procedure is not sanctioned by Rule 28, Ala. R.App. P. See Perry v. State Pers. Bd., 881 So.2d 1037, 1039 (Ala.Civ.App. 2003), quoted with approval by Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 85 n. 8 (Ala.2005) (concluding that Rule
Jacobs argues that the trial court's order granting the preliminary injunction should be reversed because Beck did not properly certify in its May 1, 2013, application for a TRO that it had attempted to give Jacobs notice of the application for a TRO. Indeed, as Jacobs points out, our supreme court has held that
International Molders & Allied Workers Union, AFL-CIO-CLC v. Aliceville Veneers Div., Buchanan Lumber Birmingham, 348 So.2d 1385, 1390 (Ala.1977). Thus, it appears that the trial court may well have erred in granting Beck's application for a TRO.
Jacobs's authority for this argument, however, does not support a reversal of the order issuing the preliminary injunction based on the deficiency in the procedure utilized to secure the TRO. As our supreme court further explained, "[n]evertheless, the validity of the later [preliminary] injunction is not to be governed by the existence of the temporary restraining order which, had the motion [to dissolve] been insisted upon, would have been subject to dissolution for the deficiencies identified." Aliceville Veneers, 348 So.2d at 1390. Our supreme court stated that an order issuing a preliminary injunction "must be weighed by its own pleading and proof." Id. Therefore, any deficiency in the procedure that led to the TRO cannot support a reversal of order issuing the preliminary injunction.
Finally, Jacobs argues that the trial court should not have considered the post-hearing brief submitted by Beck because it was not electronically filed as required by an Administrative Order of the Alabama Supreme Court dated September 6, 2012. That Administrative Order, Jacobs argues, requires a party who files a document in open court to also file that document electronically on the same day. However, Jacobs admits that Beck's post-hearing brief was not filed in open court but was, instead, submitted directly to the judge's office. Rule 5(e), Ala. R. Civ. P., which governs the filing of pleadings and other papers with the trial court, provides that "the judge may permit the papers to be filed with the judge, in which event, the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk." Thus, because Jacobs admits that Beck filed its post-hearing brief with the judge and because the record does not reflect that the judge did not permit such practice, we cannot agree that Beck was required to electronically file the post-hearing brief or that its failure to do so should have precluded the trial court from having relied upon it.
Because we cannot conclude that Jacobs presented any proof that it was prejudiced by the consolidation of the hearing on its motion to dissolve the TRO with a hearing on Beck's request for a preliminary injunction, we reject Jacobs's argument that the order issuing the preliminary injunction should be reversed based on the lack of
AFFIRMED.
PITTMAN and MOORE, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.
DONALDSON, J., dissents, with writing.
DONALDSON, Judge, dissenting.
At the time the May 13, 2013, order setting a hearing on the propriety of the temporary restraining order ("TRO") was entered, no appearance in the case had been filed by Jacobs Broadcast Group, Inc. ("Jacobs"). The next day, May 14, 2013, Jacobs filed an appearance through counsel, a motion to dismiss the complaint, and a "Motion to Dissolve Preliminary Injunction." As grounds for the motion, Jacobs asserted that inadequate notice had been provided for the issuance of a TRO and that there were inadequate grounds to have issued the TRO. Later that same day, the trial court entered an order stating: "The Defendant's Motion To Dissolve, originally set on Tuesday, May 21, 2013 has been RESCHEDULED to: Wednesday, the 15th day of May, 2013 at 4:00 p.m. in Courtroom Number 100."
Counsel for Jacobs and for Jeff Beck Broadcasting Group, LLC ("Beck"), appeared at the hearing on May 15, 2013. The following colloquy occurred:
Counsel for Jacobs raised numerous objections to the manner in which the TRO had been obtained by Beck. After further discussion regarding the propriety of the TRO, counsel for Beck said: "What we would like to do is put on some testimony specifically about all of this, especially why the fact that we've asked for a preliminary injunction and temporary restraining order, to introduce the non-compete agreement, and to explain to the trial court exactly what we are ... dealing with." Counsel for Jacobs then responded:
(Emphasis added.) Over Jacobs's objections, Beck presented testimony regarding whether a preliminary injunction should be issued. At the conclusion of the testimony, counsel for Jacobs asked the court to deny the requested injunctive relief, primarily on procedural grounds. Counsel for Beck requested permission to file a brief with respect to an issue raised by Jacobs regarding the requested relief. Counsel for Jacobs then stated:
The main opinion recognizes that Jacobs had no notice that it would be called upon to defend against a preliminary injunction, that it had no opportunity to prepare for a hearing on whether to issue a preliminary injunction, and that it was deprived of the opportunity to call any witness other than James Jacobs. The transcript of the hearing shows that Jacobs objected to Beck's attempts to go forward with an evidentiary hearing seeking a preliminary injunction, based on its lack of notice that that would be a purpose for the hearing. Jacobs specifically stated:
The trial court overruled that objection and proceeded with the hearing on whether to issue a preliminary injunction, and it issued a preliminary injunction one week later on May 22, 2013. Thus, the record clearly shows that Jacobs never received adequate notice of a hearing on the preliminary injunction or any opportunity to prepare for such an evidentiary hearing on whether to issue a preliminary injunction, and it specifically raised the unavailability of a witness as being prejudicial. Counsel for Jacobs indicated on the record at the hearing that he intended to call his "FCC expert here to testify regarding that license." The main opinion's reliance on Martin v. Patterson, 975 So.2d 984 (Ala. Civ.App.2007), for the proposition that "the consolidation of a trial on the merits with a with a preliminary injunction hearing under Rule 65(a)(2)" cannot be distinguished "from consolidation of a hearing on a motion to dissolve a TRO from a hearing on a motion for preliminary injunction held under Rule 65(b)," 160 So.3d at 352, ignores the plain language of Rule 65(a)(2), which
Further, allowing for post-hearing briefing could not cure the prejudicial defect in the proceedings. In fact, it only serves to magnify the lack of notice and extent of prejudice because it further allowed Beck to present its case in full while depriving Jacobs of the ability to reference or to rely upon its proposed expert witness or any other witness. If the trial court had found that the TRO should be dissolved, as requested by Jacobs, following the May 15, 2013, hearing, the trial court could have kept the TRO in effect for a limited period and scheduled a continuation of the hearing on the preliminary injunction to permit Jacobs to present evidence.
The main opinion distinguishes Southern Homes, AL, Inc. v. Bermuda Lakes, LLC, 57 So.3d 100 (Ala.2010), and Funliner of Alabama, L.L.C. v. Pickard, 873 So.2d 198 (Ala.2003), because, unlike those cases, Jacobs was present and able to present testimony at the hearing and "had the ability to present a defense to the issuance of the preliminary injunction while it argued about the propriety of the TRO." 160 So.3d at 351. The ability to present a defense based on the presence of a single witness is not a substitute for the ability to present a meaningful defense to a preliminary injunction that might last for the duration of the litigation. Our supreme court has stated:
Southern Homes, 57 So.3d at 104-05. See also Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala.Civ.App.1983) ("In order to comply with procedural due process, notice and an opportunity to be heard are necessary under rule 65(a)."). There is no dispute that Jacobs was denied notice that the May 15, 2013, hearing would address the merits of issuing a preliminary injunction rather than simply addressing the propriety of the TRO, which the main opinion notes "the trial court may well have erred in granting." 160 So.3d at 354. I cannot agree that the prejudice of depriving Jacob of its right to notice and opportunity to prepare to defend against a preliminary injunction of an extended duration can be addressed and cured by the preparation necessary to demonstrate a procedurally defective TRO. Jacobs properly objected to the proceedings and presented a sufficient threshold showing that additional evidence would have been presented to the trial court if adequate notice had been given. Whether the additional