Credo LLC v. Speyside Investments Corp.

Third District Court of Appeal
State of Florida

Opinion filed August 15, 2018.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-0815
Lower Tribunal No. 13-31175
________________

Credo LLC,
Appellant,

vs.

Speyside Investments Corporation,
Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Antonio Marin, Judge.

Law Offices of Paul Morris, P.A., and Paul Morris; Roniel Rodriguez, IV,
for appellant.

Rothman and Tobin, P.A., Michael Rothman, and Ellen Patterson, for
appellee.

Before LOGUE, LUCK and LINDSEY, JJ.

LINDSEY, J.
 A seller of real property appeals an order requiring $3.3 million paid by a

buyer at the closing on a sale of real property, intended to satisfy a preexisting

mortgage, to be deposited into the court registry pending litigation by the mortgage

holder, initiated after the closing, over the payoff amount. We affirm for the

reasons set forth below.

I. BACKGROUND

This case began in August of 2006, when Sally Sawh executed a promissory

note in favor of Fairmont Funding, LTD, predecessor-in-interest to Wells Fargo

Bank, N.A. (“Wells Fargo”) in the original principal amount of $3,000,000.00. As

security for the note, Ms. Sawh and Paolo Dellacassa executed a mortgage on a

parcel of real property located at 4575 Sabal Palm Road in Miami, Florida (the

“Property”). It is this property that is the subject of yet a second appeal to this

Court.

In August of 2012, appellant seller, Credo, LLC (“Credo”) obtained a

Sheriff’s Deed to the Property in exchange for the payment of $10.00 (ten dollars).

In October of 2013, Wells Fargo, the plaintiff below, filed the instant action

seeking to foreclose on the mortgage and/or enforce the note naming Ms. Sawh,

Mr. Dellacassa and Credo, among others, as defendants herein. While the

foreclosure was pending, Credo contracted to sell the Property to appellee buyer,

Speyside Investments Corp. (“Speyside”).

2
 On February 26, 2014, just prior to the closing, Credo filed a motion to

redeem the mortgage purportedly pursuant to section 45.0315, Florida Statutes,

and set it for hearing on a five minute motion calendar on March 10, 2014. The

trial court entered an order granting the motion to redeem (“the March 10

Redemption Order”) and authorizing Credo to tender to Wells Fargo, on or before

May 1, 2014, the total sum of $3,347,233.21 (“$3.3 million”). In exchange, the

trial court directed that “[u]pon redemption, this Order shall constitute a

satisfaction of said mortgage, extinguishing the mortgage of record.”

With the March 10 Redemption Order in hand, Credo sold the Property to

Speyside on April 30, 2014, for the sum of $6,150,000.00 (“$6.15 million”), some

of which Speyside borrowed and some of which Speyside paid out-of-pocket. At

closing, the $3.3 million identified in the March 10 Redemption Order was

disbursed to Wells Fargo. Credo pocketed the net sum of $1,815,336.89 (“$1.8

million”) as part of this transaction. A Warranty Deed from Credo in favor of

Speyside was recorded on May 6, 2014.

While Wells Fargo accepted the $3.3 million Speyside tendered at the

closing to pay off the mortgage, it did not release its lien or otherwise recognize

and comply with the March 10 Redemption Order. Instead, three weeks later,

while still in possession of the $3.3 million, Wells Fargo moved the trial court for

reconsideration or, alternatively, to vacate the March 10 Redemption Order. Wells

3
Fargo claimed that the amount was unliquidated and that the trial court should

have held an evidentiary hearing before fixing the amount necessary to redeem the

mortgage. The motion was accompanied by an affidavit from Wells Fargo

alleging that the correct redemption amount was $4,624,169.03 (“$4.6 million”), or

$1,276,935.82 (“$1.276 million”) more than the amount that had been fixed by the

trial court. The trial court denied the motion and entered an order dismissing the

action below. Wells Fargo appealed both orders to this Court, which were

consolidated in Wells Fargo Bank, N.A. v. Sawh (Credo I), 194 So. 3d 475 (Fla. 3d

DCA 2016).

In Credo I, this Court found in favor of Wells Fargo, stating that “the

amounts due to Wells Fargo under section 45.0315 were not liquidated when the

motion to redeem was filed, at the time that motion was heard, or at any

subsequent time.” 194 So. 3d at 482-83. In so finding, this Court held that

“because Wells Fargo’s damages were not liquidated, the burden fell on Credo to

have set an evidentiary hearing on its motion to redeem and to adduce evidence or

to spread a stipulation on the record to prove the amounts that it was obligated to

pay under section 45.0315 to redeem.” Id. at 483.

Accordingly, we reversed the final order dismissing the foreclosure action,

vacated the March 10 Redemption Order and remanded back to the trial court for

an evidentiary hearing to determine the amount that must be paid to Wells Fargo to

4
redeem, i.e., payoff, the mortgage. Id. This Court further stated “[i]n light of this

determination, we order Wells Fargo to reimburse Credo any sums paid by it in

compliance with the March 10 [Redemption Order].” Id. (emphasis added). On

June 17, 2016, the mandate issued directing that such further proceedings in this

cause take place.

Ten days later, Credo filed an emergency motion in the trial court for

contempt for failure to comply with the mandate and for sanctions. Credo alleged

it tendered the $3.3 million to Wells Fargo and that, pursuant to the mandate,

Wells Fargo should be held in contempt of court for failing to return those funds to

Credo.1

Wells Fargo responded two days later with its own motion to enforce the

mandate and for entry of an order permitting Wells Fargo to deposit the funds

received in connection with the March 10 Redemption Order into the court

registry, a law firm trust account or other escrow account.2 Wells Fargo alleged

that the March 10 Redemption Order required Credo to pay an incorrect

redemption amount, noted that Credo I does not address the sale of the Property by

1 In this motion, Credo makes reference to the language contained in Credo I three
times. Therein, Credo incorrectly cites this Court’s language in Credo I as
ordering Wells Fargo “to reimburse Credo any sums paid in compliance with the
March 10 [Redemption Order].” In fact, the actual language ordered Wells Fargo
“to reimburse Credo any sums paid by it in compliance with the March 10
[Redemption Order].” See Credo I, 194 So. 3d at 483 (emphasis added).
2 In this motion, Wells Fargo correctly cites the same language from the Credo I

opinion that Credo incorrectly cited in its motion to enforce the mandate.
5
Credo to Speyside and asserted that the intent of this Court was to return the

parties to the position they were in prior to the March 10 Redemption Order.3

On July 19, 2016, the trial court entered an order granting Credo’s motion to

enforce the mandate, requiring Wells Fargo to choose either to accept the $3.3

million in full satisfaction of the Mortgage or to deliver the $3.3 million to Credo,

in which event, Speyside would be entitled to intervene.4 Six days later, on July

25, 2016, Wells Fargo elected to deliver the $3.3 million to Credo. Speyside,

having been granted leave to intervene, filed a motion to require the funds remitted

to Credo by Wells Fargo on July 25, 2016 to be deposited into the court registry,

essentially, seeking the same relief Wells Fargo had sought.5

On April 4, 2017, the trial court held a hearing, noticed as evidentiary, on

Speyside’s motion. Treating Speyside’s motion as seeking injunctive relief, the

3 Speyside was not a party to the Credo I appeal.
4 At the time of entry of this order, Speyside had filed a motion seeking to
intervene in the foreclosure case which was pending. After Wells Fargo elected to
tender the $3.3 million to Credo, the trial court entered an order on August 5, 2016,
granting Speyside’s motion to intervene.
5 There is no written response by Credo to this motion contained within the record

on appeal. In addition, on July 28, 2016, Speyside filed a crossclaim against Credo
for breach of warranties of title and unjust enrichment, and a counterclaim against
Wells Fargo. In its crossclaim, Speyside alleged not only that Credo breached its
warranty of title but that it has been unjustly enriched by wrongfully retaining the
$3.3 million, which was intended to, but did not, satisfy Wells Fargo’s mortgage.
In addition, because Credo had pocketed $1.8 million from its sale of the Property
to Speyside, Speyside alleged Credo has been unjustly enriched over and above the
$3.3 million earmarked to pay off the mortgage by any additional amount Speyside
may be required to pay pursuant the mandate in Credo I.
6
trial court entered an order requiring Speyside to post an $80,000.00 bond with the

court within 72 hours, and ordering Credo to deposit the $3.3 million into the court

registry within 72 hours from the posting of the bond by Speyside. The trial court

specifically found:

(a) That counsel for SPEYSIDE appeared, along with a
representative on behalf of SPEYSIDE, and
SPEYSIDE’s expert witness;
(b) That counsel for Plaintiff, WELLS FARGO BANK,
N.A. appeared, without a representative from Plaintiff or
any additional witnesses;
(c) That counsel for CREDO appeared, without a
representative from Credo or any additional witness;
(d) That there is a substantial likelihood that the funds at
issue, $3,347,233.21, will ultimately belong to Plaintiff
than [sic] CREDO;
(e) That the failure to deposit the $3,347,233.21,
previously remitted to CREDO, into the Court Registry
would result in irreparable harm to SPEYSIDE if the
funds are not safe kept, as the realty at issue in this
foreclosure action, now owned by SPEYSIDE, remains
encumbered by Plaintiff’s mortgage.
(f) That the specific funds at issue were generated at
closing upon SPEYSIDE’s purchase from CREDO and
were intended to be applied towards the payoff of
Plaintiff’s mortgage.
(g) That the threatened injury, i.e., the possibility that
CREDO may not safeguard the $3,347,233.21 and it may
otherwise be unavailable when the total redemption
amount owed to Plaintiff is determined, highly outweighs
the possible harm caused to CREDO; and
(h) That the issuance of temporary injunction is equitably
justified. See Hullum v. Bre-lew Corp., 93 [So. 2d] 727
([Fla]. 1957) and Jones v. Carpenter, 90 Fla. 407, 106 So.
127 (Fla. 1925).

The trial court based these findings on the following: “the arguments made by
7
counsel for the parties, the case law presented to this Court, this Court’s review of

all relevant papers, pleadings and orders and its interpretation of the intent of the

Third District Court of Appeal’s Mandate, the proffer of testimony provided on

behalf of SPEYSIDE and for all reasons stated on the record[.]” (Emphasis added).6

Further, the trial court specifically noted the equitable nature of the underlying

action as an additional reason for requiring the funds to be deposited into the court

registry. The very next day, Credo filed the instant appeal.

I. STANDARD OF REVIEW

A trial court is afforded broad discretion in granting, denying, dissolving, or

modifying injunctions, and unless a clear abuse of discretion is demonstrated, an

appellate court must not disturb the trial court's decision. Jackson v. Echols, 937

So. 2d 1247, 1249 (Fla. 3d DCA 2006) (citing Wise v. Schmidek, 649 So. 2d 336,

337 (Fla. 3d DCA 1995)); Vargas v. Vargas, 771 So. 2d 594, 595 (Fla. 3d DCA

2000). Our review is limited to whether the trial court’s findings are supported by

competent substantial evidence. See P & O Ports Fla., Inc. v. Cont'l Stevedoring &

Terminals, Inc., 904 So. 2d 507, 510 (Fla. 3d DCA 2005) (an appellate court's

review of a trial court's findings on factual matters is limited to whether they are

supported by competent substantial evidence).

If a legal principle is involved, the standard of review is de novo. City of

6 Neither Credo nor Wells Fargo brought any witnesses to the hearing and neither
requested to cross-examine Speyside’s witnesses.
8
Miami Beach v. Kuoni Destination Mgmt., 81 So. 3d 530, 532 (Fla. 3d DCA 2012)

(citation omitted); Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258

(Fla. 2017) (“The standard of review of trial court orders on requests for temporary

injunctions is a hybrid. To the extent the trial court’s order is based on factual

findings, we will not reverse unless the trial court abused its discretion; however,

any legal conclusions are subject to de novo review.”) (citing Fla. High Sch.

Athletic Ass'n v. Rosenberg, 117 So. 3d 825, 826 (Fla. 4th DCA 2013)).

II. ANALYSIS

A. Entitlement to Injunctive Relief

The situation before the trial court at the conclusion of the evidentiary

hearing was: (1) Wells Fargo was holding a pending foreclosure action on its

mortgage against the Property wherein it was alleging $4.6 million due and owing;

(2) Credo had possession of, and unrestricted access to, the $3.3 million turned

over to it by Wells Fargo plus the $1.8 million dollars it had pocketed at the

closing on the Property – a property for which it had paid only ten dollars; (3)

Credo had no further obligation with respect to the Property because it had sold its

interest to Speyside and a warranty deed had been recorded; (4) Speyside was

holding legal title to the Property, for which it had already paid $6.15 million, and

against which Wells Fargo had a pending foreclosure with $4.6 million alleged to

be due and owing; and, (5) Credo did not dispute that it had agreed at the closing

9
on the sale of the Property, that $3.3 million of the $6.15 million Speyside paid to

purchase this property was earmarked for disbursement to Wells Fargo to pay off

its mortgage. It was against this backdrop that the trial court entered the order that

is the subject of this appeal.

In order to be entitled to a temporary injunction, the moving party must

plead and establish: (1) a likelihood of irreparable harm and the unavailability of

an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3)

that the threatened injury to the movant outweighs any possible harm to the non-

movant; and, (4) that the granting of a temporary injunction will not disserve the

public interest. Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561, 564 (Fla. 3d

DCA 2010) (quoting Cordis Corp. v. Prooslin, 482 So. 2d 486, 489-90 (Fla. 3d

DCA 1986)).

On appeal Credo argues that injunctive relief does not lie where there exists

an adequate remedy at law. While this is a correct statement of the law, it is not

dispositive of this appeal. Speyside responds with the assertion that the $3.3

million paid to Wells Fargo at closing came, not from Credo, but from Speyside.

As such, Speyside argues “this is not a case where Speyside is seeking to freeze

accounts or assets of Credo, out of concern that it may not be able to collect the

funds later.” In reply, Credo argues it has a right to the $3.3 million because this

Court, in Credo I, ordered Wells Fargo to refund that amount to Credo.

10
 B. A likelihood of irreparable harm and the unavailability of an

adequate remedy at law.7

First, Credo’s argument to the trial court, as well as in this appeal, is based

on the flawed premise that this Court ordered Wells Fargo to pay $3.3 million to

Credo in Credo I. We did not. The language of this Court’s opinion in Credo I is

clear and unambiguous. Therein, this Court ordered “Wells Fargo to reimburse

Credo any sums paid by it in compliance with the [March 10 Redemption Order].”

Credo I, 194 So. 3d at 483 (emphasis added). Since no funds had been paid by

Credo in compliance with the March 10 Redemption Order, there were no funds to

which Credo was entitled to be reimbursed by Wells Fargo.

Nevertheless, Credo contends in this appeal that those funds once belonged

to Credo and “once again became an unrestricted asset of Credo.”8 However,

Credo, in fact, explicitly represented to the trial court that Credo didn’t “directly

get the [$3.3 million], you have a settlement agent, someone that does the title, that

takes the money and puts it in their trust account and then does the disbursement.

So no, it [i.e., the $3.3 million] doesn’t come directly from Credo.”

Thus, the $3.3 million admittedly did not come from Credo prior to the

closing. The $3.3 million came from Speyside and was given to Wells Fargo at the

7 We write only to address the first element necessary for entitlement to injunctive
relief and affirm, without discussion, as to the remaining three.
8 See Reply Brief of Appellant at 2-4, Credo LLC v. Speyside Invs. Corp., No.

3D17-815 (Fla. 3d DCA Sept. 28, 2017).
11
closing by the title agent. The $3.3 million was held by Wells Fargo at all times

prior to the issuance of the mandate in Credo I and continued to be held by Wells

Fargo up until just after the entry of the trial court’s order forcing Wells Fargo

either to accept the $3.3 million in full satisfaction of the Mortgage or to pay it to

Credo.

Second, while Speyside could certainly sue Credo for return of the $3.3

million, Speyside shouldn’t have to. The $3.3 million at issue herein does not

belong to Credo and never has. It either belongs to Wells Fargo or Speyside.

Since Speyside, not Credo, paid the $3.3 million to Wells Fargo at closing, it was

error to interpret the language in Credo I to require Wells Fargo, as one of two

options, to return Speyside’s funds earmarked for the satisfaction of the mortgage

to Credo. And, because at that time, Speyside had not been granted leave to

intervene, it was unable to argue its opposition to such to the trial court.

Finally, the trial court further found that the issuance of a temporary

injunction was equitably justified. The Florida Supreme Court noted the court’s

equity powers in foreclosure actions in Arsali v. Chase Home Finance LLC stating

that:

Under Florida law, actions involving foreclosure of
property are brought in courts of equity. The Florida
Legislature recognized the need for equitable remedies in
foreclosure actions and, thus, codified that foreclosure
cases involving mortgages will be tried in equity courts.
See § 702.01, Fla. Stat. (2010) (Equity) ("All mortgages
12
 shall be foreclosed in equity. In a mortgage foreclosure
action, the court shall sever for separate trial all
counterclaims against the foreclosing mortgagee. The
foreclosure claim shall, if tried, be tried to the court
without a jury.").

121 So. 3d 511, 517 (Fla. 2013) (first internal citation omitted).

Moreover, “[u]nder Florida law, ‘an equitable lien is a right, not recognized

by law, to have a fund . . . applied in whole or in part to the payment of particular

debt.’” Gendler v. Related Grp., 2009 U.S. Dist. LEXIS 139040, at *16 (S.D. Fla.

Sept. 14, 2009) (quoting Hullum, 93 So. 3d at 730 (also cited by the trial court)).

Further, “an equitable lien can be imposed if . . . a court declares that the equitable

lien is necessary out of general considerations of justice.” Id. at *16-17 (quoting In

re Dorado Marine, Inc., 321 B.R. 581, 588 (M.D. Fla. 2005) (citing Jones, 106 So.

127 (also cited by the trial court)).

Florida courts have entered injunctions to protect the res of a trust implied

by operation of law. See e.g., TJ Mgmt. Group, L.L.C. v. Zidon, 990 So. 2d 623,

625 (Fla. 3d DCA 2008) (holding that “an order freezing funds held in a bank

account for further determination on the ownership rights to those funds is in the

nature of an injunction properly entered”); Ga. Banking Co. v. GMC Lending &

Mortg. Servs. Corp., 923 So. 2d 1224 (Fla. 3d DCA 2006) (finding injunctive

relief appropriate to prevent dissipation of specific, identifiable funds that had been

collected on behalf of the lender and were being held in trust for the bank); Vargas,

13
771 So. 2d at 595-96 (affirming the issuance of an injunction in a breach of

fiduciary duty and conversion action where the plaintiffs “have shown a common

ownership of the bearer shares, as well as the $4.4 million in bank accounts, and

that a lifting of the injunction would expose those assets to conversion or

dissipation by a third party over which the [plaintiffs] have no control” and the

corpus of any possible constructive trust would no longer be available if the assets

are taken outside the court's jurisdiction”); Castillo v. Vlaminck De Castillo, 701

So. 2d 1198, 1199 (Fla. 3d DCA 1997) (affirming the injunctive order where the

mother sought imposition of a constructive trust on an account that her son

established by improperly employing the proceeds of her $200,000.00 check made

payable to him, allegedly on the understanding that he would purchase a certificate

of deposit in the names of her and all her surviving children); Pendergraft v. C.H.,

225 So. 3d 420, 421 (Fla. 5th DCA 2017) (citing Zidon, 990 So. 2d 623) (“An

order freezing assets for further determination of the ownership right to those

assets is in the nature of an injunction.”).

Speyside correctly points out that this is not a case where a party seeks to

enjoin funds that rightfully belong to an opposing party in litigation out of fear that

it may not be able to later collect on any judgment it may be awarded. Aside from

the fact that the $3.3 million never rightfully belonged to Credo, at the time of the

closing, the $3.3 million was clearly identifiable, was not commingled with other

14
assets and was intended for the specific purpose of paying off Wells Fargo’s

mortgage on the Property. Thus, the trial court’s injunction order, requiring Credo

to deposit the $3.3 million into the court registry pending further determination as

to the ownership rights to those funds, was properly entered.

After careful review, we are not persuaded by the arguments put forward by

the dissent. We agree with the law cited by the dissent. We simply do not find it

applicable to the somewhat unique facts of this case. First, the dissent places great

emphasis on Speyside’s purported failure to appeal the trial court’s erroneous July

19, 2016 order which gave Credo the funds escrowed by Speyside. The dissent

argues that “Speyside has not appealed that order. Speyside cannot collaterally

attack that non-appealed order in this separate appeal to the injunction order.” The

argument misapprehends the record. Speyside could not have appealed that order:

Speyside was not a party when that order was entered.

Speyside was not granted leave to intervene until August 5, 2016, which was

well after the trial court had entered the July 19, 2016. The case cited by the

dissent, Marine Midland Bank Cent. v. Cote, 384 So. 2d 658, 659 (Fla. 5th DCA

1980), involved a bank and an individual who were parties to the litigation at the

time the non-appealed order was entered. The rule of Marine Midland regarding a

party’s failure to appeal an order simply does not extend to a non-party like

Speyside who could not have appealed the order.

15
 Second, the dissent places particular reliance on its understanding that “the

lawsuit between Speyside and Credo is not a foreclosure suit.” We respectfully

disagree with this characterization. The dispute between Speyside and Credo is

inextricably part of the foreclosure. Our prior opinion in Credo I, which gives rise

to this dispute, was entirely based on applying foreclosure law in the pending

foreclosure. In that foreclosure action, Speyside paid the money at issue into

escrow to exercise Credo’s right to redeem. The trial court order under review

characterized the matter as involving a “foreclosure action:” it found the failure to

deposit the funds escrowed by Speyside “into the Court Registry would result in

irreparable harm to SPEYSIDE if the funds are not kept safe, as the realty at issue

in this foreclosure action, now owned by SPEYSIDE, remains encumbered by

Plaintiff’s mortgage.” (Emphasis added).

Because this case does indeed involve a foreclosure action, the case cited by

the dissent, Sammie Investments, LLC v. Strategica Capital Assocs., Inc,, 2018

Fla. App. LEXIS 6336 (Fla. 3d DCA May 9, 2018), is inapposite. Sammie

Investments involved a garden variety business dispute with claims for breach of

contract, misrepresentation and unjust enrichment: it did not involve a dispute over

possession of funds escrowed during a foreclosure action like the case before us.

III. CONCLUSION

Because the $3.3 million which the trial court ordered to be deposited into

16
the court registry never belonged to Credo, because Credo does not now have, and

has not ever had, any legal claim to those funds, and because it would be

inequitable to allow Credo unrestricted access to $3.3 million that belongs either to

Speyside or to Wells Fargo during the pendency of the underlying litigation, we

affirm.

Affirmed.

LOGUE, J., concurs.

17
 LUCK, J., dissenting.

Speyside Investments Corporation sued Credo LLC for breach of title

warranties and unjust enrichment related to the sale of real property in Miami-

Dade County. In a nutshell, Speyside alleged that Credo misrepresented that the

title to the property it sold would be free and clear of a preexisting mortgage.

Speyside moved to enjoin Credo by requiring that a portion of the money Speyside

paid for the sale of the property be paid into the court registry. The trial court

granted the motion, and the majority opinion affirms. I dissent because Speyside

has not shown, as a matter of law, that it met the requirements for an injunction –

irreparable harm and no adequate remedy at law.

I would normally spend the next few paragraphs explaining that a

preliminary injunction ordering the deposit of the money at issue in a damages

case (like this one) is unlawful, but that is unnecessary because a few months ago

the court issued an opinion explaining the rule and going through the case law

better than I ever could. Please excuse the lengthy block quote but given how

recent and thorough our opinion was, it is worth it:

Strategica has failed to meet its burden of proving that it will incur

irreparable harm because it has no adequate remedy at law. As defined by this

Court, “irreparable injury is injury that cannot be cured by money damages.”

18
Lutsky v. Schoenwetter, 172 So. 3d 534, 534 (Fla. 3d DCA 2015) (citing Grove

Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1092 (Fla. 3d DCA

2014)). And, “[t]he test for unavailability of an adequate remedy at law, under

these requirements, is ‘whether a judgment can be obtained, not whether, once

obtained, it will be collectible.’” Lopez-Ortiz v. Centrust Sav. Bank, 546 So. 2d

1126, 1127 (Fla. 3d DCA 1989) (citations omitted).

Here, even if Strategica is ultimately successful in establishing entitlement

to the $75,000 purported loan or to twenty percent of Sammie’s profits from the

sale of the 9 Mile property, it will only be entitled to an award of money damages.

Strategica, therefore, has an adequate remedy at law to recover the disputed funds.

Accordingly, because the injury Strategica is attempting to prevent is purely

monetary and can be cured by money damages, Strategica will not suffer

irreparable harm.

As this Court stated in Konover Realty Associates, Ltd. v. Mladen:

It is entirely settled by a long and unbroken line of Florida cases that in an

action at law for money damages, there is simply no judicial authority for an order

requiring the deposit of the amount in controversy into the registry of the court, or

19
indeed for any restraint upon the use of a defendant’s unrestricted assets prior to

the entry of judgment. The rule has been specifically applied, as on general

principles it must be, to an action like this one for the recovery of unsegregated

earnest money, and is unequivocally not affected by the claim that recovery upon

any subsequently-entered judgment may be made difficult by the dissipation or

unreachability of the debtor’s assets.

511 So. 2d 705, 706 (Fla. 3d DCA 1987) (internal citations omitted); see

also Leight v. Berkman, 483 So. 2d 476, 477 (Fla. 3d DCA 1986) (citations

omitted) (“The law is unequivocally established that an injunction against the

disposition of a defendant’s assets simply may not be granted upon the ground that

their preservation is required to satisfy a subsequent money judgment.”); De Leon

v. Aerochago, S.A., 593 So. 2d 558, 559 (Fla. 3d DCA 1992) (“Injunctive relief

may not be used to enforce money damages, or to prevent any party from

disposing of assets until an action at law for an alleged debt can be concluded.”

quoting Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA

1986)).

V. CONCLUSION

20
 Because Strategica has suffered no irreparable injury that cannot be cured by

money damages and an adequate remedy at law is available, we reverse the trial

court’s order granting Strategica’s motion for temporary injunctive relief and

remand for further proceedings consistent with this opinion.

Sammie Investments, LLC v. Strategica Capital Assocs., Inc., No. 3D17-

2052, 2018 WL 2122792, at *3 (Fla. 3d DCA May 9, 2018). I wasn’t on the

Sammie Investments panel, but I fully concur.

Here, the trial court’s finding of irreparable harm is the same as the

one the Sammie Investments court found to be legally insufficient. Our trial court

found that “the threatened injury, i.e., the possibility that CREDO may not

safeguard [the money] and it may otherwise be unavailable when the total

redemption amount owed to Plaintiff is determined, highly outweighs the possible

harm caused to CREDO.” The Sammie Investments trial court found that “if

Sammie does not ‘have any other assets based on the only testimony provided,

then there would be irreparable harm because there would be nowhere else from

where to gain that money.’” 2018 WL 2122792, at *2. As we have explained,

“[t]he test for unavailability of an adequate remedy at law, under these

requirements, is ‘whether a judgment can be obtained, not whether, once obtained,

it will be collectible.’” Lopez-Ortiz, 546 So. 2d at 1127.

21
 But despite this long and unbroken line of Florida cases, the majority

opinion gives four reasons for why the injunction was lawful here: (1) we did not

order in the prior appeal that the money be returned to Credo; (2) the money “does

not belong to Credo and never has”; (3) the injunction was “equitably justified” as

part of the trial court’s “equity powers in foreclosure actions”; and (4) “Florida

courts have entered injunctions to protect the res of a trust implied by operation of

law.” None of these reasons support an exception to the general rule.

Reasons 1 and 2. We did not order the money returned and the money does

not belong to Credo. First, the majority opinion says that Credo is not entitled to

the money because our earlier opinion in Credo I did not order the money returned

to the company. Regardless of whether this court did or did not order the money

returned to Credo in the prior appeal, the trial court ordered the money returned to

Credo, and Speyside has not appealed that order. Speyside cannot collaterally

attack that non-appealed order in this separate appeal of the injunction order. See

Marine Midland Bank Cent. v. Cote, 384 So. 2d 658, 659 (Fla. 5th DCA 1980)

(“The parties have the right to appeal any matter by which they may be aggrieved

and their failure to do so acts as an acceptance of the propriety of the matter.”).

Given that, Credo cannot improperly have money that the trial court ordered it

have. Based on the trial court’s unappealed order, the money was properly in

Credo’s bank account.

22
 In any event, the fact that Credo may not be entitled to the money goes to

the likelihood of Speyside’s success on the merits of its breach of title warranties

and unjust enrichment claims, but that is separate and apart from whether Speyside

would be irreparably harmed and had an adequate remedy at law. Look at Sammie

Investments. There, too, the defendant had the plaintiff’s money it wasn’t entitled

to have. Still, we determined the plaintiff “ha[d] an adequate remedy at law to

recover the disputed funds.” Sammie Investments, 2018 WL 2122792, at *3.

Likewise, in this case, just because Credo should never have had the money,

doesn’t mean that Speyside can’t recover the money at the end of the lawsuit.

The majority opinion suggests that the facts of this case are “somewhat

unique,” but they aren’t. Every day, dozens of plaintiffs file breach of contract and

unjust enrichment complaints in the circuit courts of this state alleging that they

were ripped off by another’s false promises and trickery. But just because the

defendant’s scheme to make away with the plaintiff’s money was different here

than it was in Sammie Investments, or Konover Realty, or Lopez-Ortiz, doesn’t

mean the trial court can do an injunctive end-run around the requirement that there

be no adequate remedy at law and give relief to the plaintiff without discovery or

trial. No two cases are alike, and each variation on the age-old bait-and-switch

scheme does not change three decades of precedent.

Reason 3. The injunction was equitably justified under the trial court’s

23
equity powers in foreclosure. The majority opinion reasons that because the case

between Speyside and Credo “involve[s] a foreclosure action,” and foreclosure is

an equitable remedy, then the temporary injunction was “equitably justified.”

There are two problems with this reasoning.

First, the dispute between Speyside and Credo was not a foreclosure action.

Speyside intervened for the purpose of filing a counterclaim against Credo for

breach of the title warranties and unjust enrichment seeking return of the money

paid for the property. Speyside’s counterclaim against Credo did not seek to

foreclose on the property, and Speyside cannot seek relief it did not request.

Second, even if this was a foreclosure action, the trial court’s “equity powers

in foreclosure actions” do not extend so far as to grant a preliminary injunction

without meeting the necessary requirements (like irreparable harm and no adequate

remedy at law). I know of no case, and the majority opinion does not cite any, that

allows the trial court to grant a Florida Rule of Civil Procedure 1.610 preliminary

injunction in a foreclosure case without the movant having to prove she was

irreparably harmed or did not have an adequate remedy at law. The cases cited by

the majority opinion deal with equitable liens but Speyside did not plead an

equitable lien claim and, even if it did, an equitable lien is not available where

there’s an adequate remedy. See Johns v. Gillian, 184 So. 140, 145 (Fla. 1938)

(“But there is no such lien where the expenditures are made with knowledge of the

24
real state of the title; nor will such a lien arise where there is an adequate remedy at

law.” (quotation omitted)). Speyside has an adequate remedy at law – this breach

of title warranties lawsuit against Credo.

Reason 4. The Florida courts have entered injunctions to protect the res of a

trust. Speyside has not pled a claim for constructive or resulting trust that would

trigger this exception to the irreparable harm requirement. Again, Speyside’s

claims were for breach of title warranties and unjust enrichment. The court – this

one and the trial court – cannot grant relief where it has not been pled. See

Brickell Station Towers, Inc. v. JDC (Am.) Corp., 549 So. 2d 203, 203 (Fla. 3d

DCA 1989) (“We hold that the trial court decided matters which were not the

subject of appropriate pleadings. In granting relief which was neither requested by

appropriate pleadings, nor tried by consent, the trial court entered the order in

violation of BST’s due process rights.”); see also Nabinger v. Nabinger, 82 So. 3d

1075, 1076 (Fla. 1st DCA 2011) (“In modification proceedings, as in other civil

matters, courts are not authorized to award relief not requested in the pleadings.”);

Bilow v. Benoit, 519 So. 2d 1114, 1117 (Fla. 1st DCA 1988) (“The trial court

erred in granting judgment for appellee on the unpled defense of forfeiture, for a

judgment based upon an issue outside the pleadings cannot stand.”). Because

Speyside did not plead a constructive or resulting trust, the trial court could not

grant an injunction on that basis.

25
 * * *

The majority opinion strays from the entirely settled principle, reaffirmed

only a few months ago, that in an action at law for money damages there is no

judicial authority for an order requiring the deposit of the amount in controversy

into the registry of the court. I would not break this unbroken line of Florida cases.

26