COHEN, J.
Highway 46 Holdings, LLC ("Highway 46"), appeals from the trial court's non-final order refusing to dissolve a temporary injunction entered in an action filed by Highway 46 against two of its members, Michael and Jacqueline Myers ("the Myerses"). The Myerses filed a counterclaim to the action below and cross-appeal from the same order.
The dispute in this case stems from a joint venture between sophisticated businesspersons, the Myerses and Donald and Glenda Hachenberger ("the Hachenbergers"). The Myerses partnered with the Hachenbergers to develop an entertainment complex consisting of several bars, a restaurant, a sound stage, and a smokehouse. The Myerses owned the real property upon which they planned to develop the project. They also possessed, among various other assets, between $1 and $4 million in collectible memorabilia, some of which they planned to incorporate, to some degree, in the project. The memorabilia included a range of items, from antique motor vehicles to vintage gas station pumps, signs and trinkets known as "petrobilia." As for the Hachenbergers, they provided cash and financing for the venture. The parties came together to form and own in equal shares a holding company to shield the project's assets and receive its profits, creating Highway 46.
As the project was being developed, the memorabilia was stored on the project site in various warehouses leased by Highway 46. The memorabilia was inventoried for insurance purposes; however, title to the motor vehicles was never transferred to Highway 46. Commingled within the growing memorabilia collection were other items, including the Myerses' household furniture, children's toys, tools and family heirlooms. At some point, relations between Michael Myers and Donald Hachenberger deteriorated. Eventually, Donald Hachenberger terminated Michael Myers' employment with Highway 46 and had him removed from the premises. He also changed the locks on the buildings and warehouses containing the memorabilia.
Pursuant to certain agreements executed by the parties, Highway 46 filed an action against the Myerses and Southeast Communications Company of Central Florida, Inc., for breach of contract and specific performance.
After several confrontations erupted between the parties at the project site, Highway 46 filed a verified emergency motion for temporary injunctive relief. With the motion, Highway 46 sought to enjoin Michael Myers from coming near Donald Hachenberger, from entering the property site, and from removing, destroying or encumbering the memorabilia and related property. The Myerses responded in kind with an amended verified emergency motion for temporary injunctive relief. With it, they sought the return of the memorabilia and personal property, or, alternatively, that the items be secured and maintained at the project site and warehouses. They also sought unfettered access to the premises and protection from Donald Hachenberger.
After an evidentiary hearing before a special master at which both parties presented
At separate times and within one year of the trial court's order, Highway 46 sought to dissolve the temporary injunction, and, alternatively, both parties sought to have an injunction bond posted pursuant to Florida Rule of Civil Procedure 1.610. At a hearing on the motions, Donald Hachenberger testified as to the change in circumstances surrounding Highway 46's business. He claimed Highway 46 was operating at a $20,000 deficit each month, $10,000 of which was attributable to the costs of storing the memorabilia. Michael Myers testified as to the circumstances surrounding the business venture and the memorabilia. Ultimately, both sides sought full possession and control of the memorabilia. In the event the court did not lift the injunction, each argued that the other had to post an injunction bond, as it was agreed that the law required a bond be posted. Due to the relief each thought the other was receiving under the injunction, however, the parties hotly contested who was enjoined and who benefited under the terms of the injunction.
At the conclusion of the hearing, the trial court noted that Highway 46 would likely prevail on the underlying merits of the case, and that the injunction benefited both parties. The court initially held that the Myerses would have to post a $50,000 bond (half the storage fees for ten months), but decided to forgo a bond upon further deliberation. The court stated that both parties originally requested the temporary injunction, and that it still served to preserve the status quo. In its written order, the court modified the injunction to the extent that Highway 46 was permitted to transfer to the Myerses possession of the memorabilia — along with the burden of paying the related storage costs — if it so desired.
Highway 46 and the Myerses effectively raise two issues on appeal. First, both argue that the trial court erred in continuing the temporary injunction because
Generally, a temporary injunction may be obtained either ex parte and without notice to the adverse party pursuant to heightened procedural requirements, or after the adverse party has received notice and a hearing. Fla. R. Civ. P. 1.610(a)(1), (2). A temporary injunction is an extraordinary remedy, to be granted sparingly and only after the moving party establishes the following criteria: "(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) consideration of the public interest." Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.3d 653, 655 (Fla. 5th DCA 2009). Upon entering an injunction, the trial court must specify the reasons for the injunction and, in reasonable detail, the acts restrained. Fla. R. Civ. P. 1.610(c).
Once entered, a party seeking relief from the injunction may choose to file a direct appeal from the injunction order within thirty days of rendition under Florida Rule of Appellate Procedure 9.130(a)(3)(B), or a motion to dissolve the injunction at any time under Florida Rule of Civil Procedure 1.610(d). The procedural posture chosen by the party has a direct effect on whether an appellate court can conduct a plenary review of the matter. As explained by this Court in Thomas v. Osler Medical, Inc., 963 So.2d 896 (Fla. 5th DCA 2007):
963 So.2d at 900 (footnote, quotation and citations omitted) (emphasis added).
Accordingly, as explained in Thomas, "[w]hen a motion to dissolve is directed to a temporary injunction after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution." Id. at 899 (emphasis added). The alleged change must be different from what was raised or could have been raised at the contested hearing on the initial request for the injunction. Courts will dissolve the injunction only "where the facts have changed to the point that equity dictates the injunction is no longer needed." Id. (quotation omitted). Accord Hunter v. Dennies Contracting Co., 693 So.2d 615, 615-16 (Fla. 2d DCA 1997) (affirming lower court's refusal to dissolve or modify injunction after noticed hearing because motion "merely sought to have the judge reconsider his initial ruling," and movant failed to prove change in circumstances); Brock v. Brock, 667 So.2d 310, 312 (Fla. 1st DCA 1995) (reversing order unfreezing assets because circumstances had "not altered in a manner that would justify releasing possible assets of the estate.").
Here, neither party filed an appeal from the original injunction order entered after notice and a hearing. Thus, the sufficiency of the original, unappealed injunction order is not before this Court for review. Instead, Highway 46 filed a motion to dissolve the injunction, and as a consequence, it was required to show a change in circumstances to the point equity dictated the injunction was no longer needed. The company succeeded in showing a change to the extent the injunction was modified, but failed to persuade the trial court to dissolve the injunction. Highway 46's corollary argument that dissolution was the only reasonable conclusion to be drawn from the change in circumstances is unsupported and impermissibly invites this Court to substitute its judgment for that of the lower court. Cf. Cunningham v. Dozer, 159 So.2d 105 (Fla. 3d DCA 1963); see also Meyers v. Club at Crystal Beach Club, Inc., 826 So.2d 1086, 1089 (Fla. 5th DCA 2002) (providing trial court has wide discretion to either grant, deny, dissolve, or modify injunctions). As such, the trial court did not err in refusing to revisit the original injunction order, or abuse its discretion in modifying the injunction so as to provide Highway 46 an opportunity to avoid further storage fees. Therefore, the trial court's decision to keep the temporary injunction in place as modified is affirmed.
As to the second issue raised, both Highway 46 and the Myerses claim the trial court erred because the other should have been required to post an injunction bond. We hold that the trial court erred in failing to require both parties to post bonds.
Temporary injunctions are governed by Florida Rule of Civil Procedure 1.610(b), which provides:
(Emphasis added). Outside the exceptions listed in the rule, the caselaw is clear that the trial court cannot waive the requirement for bond or set a nominal amount. Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997); see also Fla. High Sch. Activities Ass'n v. Mander ex rel. Mander, 932 So.2d 314, 315-16 (Fla. 2d DCA 2006) ("An injunction is defective if it does not require the movant to post a bond."); Image Data, L.L.C. v. Sullivan, 739 So.2d 725, 727 (Fla. 5th DCA 1999) (finding reversible error where injunction was entered without bond).
Bond must be set after both parties have had the opportunity to present evidence regarding the proper amount. Bellach, 704 So.2d at 680. The trial court must have some basis for the exercise of its discretion in setting the bond amount, which is typically the evidence provided to the court by the parties. AOT, Inc. v. Hampshire Mgmt. Co., 653 So.2d 476, 478 (Fla. 3d DCA 1995). Peculiar or extraordinary circumstances may justify a court's decision to impose a bond in an amount that varies from the evidence. See Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 532 (Fla. 5th DCA 2003) (remanding bond amount for hearing to determine whether parties stipulated to amount set); Cushman & Wakefield, Inc. v. Cozart, 561 So.2d 368, 369 (Fla. 2d DCA 1990) (cautioning, where $10 bond was imposed, "Before a trial court sets a bond below the range of anticipated costs and damages, the trial judge should be very confident that this extraordinary decision is completely appropriate under the circumstances of the case.").
The purpose of an injunction bond is to provide sufficient funds to cover the adverse party's costs and damages if the injunction is wrongfully issued.
Id. (footnote and citation omitted). Consequently, in the event no bond is posted, the wrongfully enjoined party, if any, is without recourse as to damages stemming from the wrongful injunction.
The circumstances of this case, where two private parties moved for and received injunctive relief without initially requesting the other post bond, do not warrant a waiver of the bond requirement of Rule 1.610(b). With no bonds in place, neither party would be able to collect any damages if either was found to be wrongfully enjoined. Accordingly, the trial court's decision to forgo the bond is reversed and the matter is remanded to the trial court for a new bond hearing.
AFFIRMED in part, REVERSED in part, REMANDED for a new bond hearing.
GRIFFIN and EVANDER, JJ., concur.