Filing # 115188594 E-Filed 10/19/2020 01:30:08 PM

IN THE COUNTY COURT OF THE 11th

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CASE NO: 2020-002982-CC-24

5800 NORTH BAY ROAD, MIAMI, LLC,

a Florida limited company,

Plaintiff,

v.

ORIANNE CEVEY COLLINS

MEJJATI BATES (n/k/a Orianne Bates)
and THOMAS BATES,

Defendants.
______________________________/

DEFENDANTS’ RESPONSE IN OPPOSITION TO

PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION

Defendants Orianne Cevey Collins Alami Mejjati Bates (n/k/a Orianne Bates; “Orianne”)

and Thomas Bates (“Thomas;” together with Orianne, the “Bateses” and/or the “Defendants”)

hereby file their joint Response in Opposition to Plaintiff’s Motion for Temporary Injunction (the

“Motion”) filed by Plaintiff 5800 North Bay Road, Miami, LLC (the “Plaintiff”) on behalf of its

alleged principal, Phil Collins (“Mr. Collins”). In opposition to this Motion, Orianne for herself

and her two minor sons1 who reside in the family home, along with Thomas state as follows:

INTRODUCTION AND FACTUAL BACKGROUND

The Complaint and Motion fail at the outset because Plaintiff seeks relief based on alleged

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Notably absent from Plaintiff’s facts and disclosures to the Court is any mention of the two minor children of Mr.
Collins and Orianne, who reside at the family home. The older fifteen-year-old son will be returning to the family’s
home for the upcoming holidays, as he does every year. The younger son is only nine-years-old. Both reside with
Orianne. Needless to say, Mr. Collins’ reckless and abusive attempt to throw his youngest two children out of their
family home overnight must be denied as more fully set forth herein, but more importantly for the sake and well-being
of their children.

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harms and alleged threatened injuries that Mr. Collins, individually, may suffer to his personal

property; not any harms to the actual Plaintiff entity that filed this lawsuit. Indeed, Plaintiff alleges

no direct harm whatsoever and lacks standing to bring claims based on the purported personal

harms to Mr. Collins. Critically, Mr. Collins is not the owner of the Home nor the Plaintiff in this

case. Therefore, and as a threshold matter, Plaintiff cannot demonstrate any of the elements

necessary for injunctive relief and the Motion must be denied.

Even if Plaintiff could somehow overcome the insurmountable jurisdictional and standing

hurdles – which it cannot – it is still not entitled to the relief sought in the Motion. A preliminary

injunction is extraordinary and drastic relief, particularly when it is used to disturb the status quo.

Johnson v. Killian, 27 So. 2d 345, 346 (Fla. 1946). This case epitomizes the dangers of a

preliminary ruling on the basis of an incomplete record because Plaintiff’s filings are filled with

hyperbole and embellishment, and intended to embarrass and harass the newly married couple,

with the goal of throwing their two youngest children, a nine-year-old child that Mr. Collins refers

to as his “son” and their fifteen-year-old son, out of the home. Indeed, Orianne, her children and

Mr. Collins (until he voluntarily left two months ago) had been residing in their family home for

the past five (5) years. Notwithstanding Plaintiff’s self-serving characterization that Orianne’s

conduct is “egregious” and its representation to this Court that she has “taken over” Mr. Collins’

home “by force of arms,” is just a completely contrived story to attract attention and obtain

unwarranted relief.2 Further, Plaintiff strategically ignores the contextualizing facts that would be

2
Many of the statements in the Affidavit of Jeffrey D. Fisher are self-serving hearsay, not based on his personal
knowledge and not supported by certified copies of public records. See, e.g., Fisher Aff. ¶ 9 (claiming without
evidence that Orianne “owns no interest in the Property”); ¶ 10 (purporting to characterize an agreement between Mr.
Collins and Orianne); ¶ 11 (characterizing Orianne, Mr. Collins’ ex-wife and mother to his children, as his “girlfriend”
and purporting to detail the contents of an unattached text message); ¶ 17 (impermissibly sharing selected information
about settlement communications) ¶ 19 (stating far more than is evidenced by the attached exhibits about Orianne’s
supposed efforts to “seize control” of the home); ¶ 20 (describing hearsay from Jill Hertzberg); ¶ 28 (admitting he is
reaching conclusions even though “I do not have personal knowledge”).

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available to the Court on a complete record.

Although Plaintiff refers to the home at 5800 North Bay Road, Miami Beach, Florida

33140 (the “Home”) as the “Phil Collins Home” (Id. at 1), the Home is actually named “Fil D’Or,”

a name that Mr. Collins, Orianne, and their children selected together. See Affidavit of Orianne

(“Orianne Affidavit”), ¶ 13. Mr. Collins and Orianne selected the furniture and décor together in

order to make the house their home. Id. Mr. Collins and Orianne searched for and together decided

to purchase the Home because it had enough bedrooms for each of the children, and due to its close

proximity to the school of Orianne’s youngest son (“A.A”) – who Mr. Collins cares for as his own.

Id. ¶ 6. In addition, one of Orianne’s and Mr. Collin’s biological children attends boarding school

in France, but he returns to the family Home for holidays and vacation. Id. ¶ 8. He is scheduled to

return to the Home for the Christmas holiday on December 21, 2020 through January 10, 2021. Id.

Over the course of their joint residence in the Home, Orianne oversaw and managed all

house staff and employees, all work in and around the Home, and was responsible for handling

payment of the bills from the joint accounts. Id. ¶ 26. They always had private security at the Home

through a company called “INDP”, which always provided armed security guards, including while

protecting Mr. Collins and while Mr. Collins was at their Home. Id. ¶ 27. Orianne was involved

with maintaining and overseeing security. Id. ¶ 26. Indeed, on April 13, 2020, she scheduled an

The affidavit even appears to include legal argument, see, e.g., id. ¶ 27 (“plaintiff is being irreparably harmed”), and
is replete with conclusory statements and embellishments; so much so, that it is impossible to determine what Mr.
Fisher is claiming to know from his personal experience versus what he is merely selectively repeating from out-of-
court statements he has ostensibly heard. Accordingly, Mr. Fisher’s unsupported opinion on these and other matters
is not evidence and his affidavit should be stricken. See, e.g., Wesner v. JMS Marinas, LLC, 224 So. 3d 912, 915
(Fla. 2d DCA 2017) (“We conclude that the court properly struck the [attorney] affidavit as hearsay based on the
failure to attach certified copies of the public records on which he relied.”); see also Fla. R. Civ. P. 1.510(e) (“Sworn
or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served
therewith.”); Fla. Stat. 90.604 (“Except as otherwise provided in s. 90.702, a witness may not testify to a matter unless
evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may be given by the witness's own testimony.”).

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appointment with INDP when she discovered that the cameras were not functioning properly

and/or had been tampered with, and were not properly placed to capture incidents around the

Home’s perimeter. Id. ¶ 25. She discovered this when she attempted to review the footage to

determine how the family dog accidently drowned in the swimming pool, and discovered that the

footage had been erased or was missing. Id.

It was Mr. Collins who suddenly decided to leave their family Home in which he, Orianne

and the youngest son (“A.A.”), who, although from Orianne’s prior marriage, Phil considered his

own, continuously resided there since 2015. Id. ¶ 18. After moving into the Home, Orianne and

Mr. Collin’s relationship began to deteriorate. Orianne made numerous efforts to talk to Mr.

Collins about the status of their relationship and its impact on their children, but he was unwilling.

Id. ¶ 32. After she remarried in August 2020 Orianne asked her new husband to stay in the Home

with her, and Orianne again attempted to speak with Mr. Collins, but he refused all such efforts.

Instead, he texted Orianne and informed her that he left for Switzerland and intends to remain there

at least through the end of the year, if not permanently. Id. ¶ 19. In stark contrast, this is Orianne’s

primary residence – that she is allegedly now holding “hostage” – and which she and Mr. Collins

purchased, renovated, furnished and lived in together with their children for years. Id. ¶¶ 3,7,13.

The “three heavily armed guards” Orianne allegedly used to take over her own Home have

been providing security services to Orianne and Mr. Collins since 2015 – as Mr. Collins well

knows. Finally, Orianne did not “block[] the surveillance cameras” at the Home as alleged. Instead

and in actuality, she recently discovered at least twenty intentionally hidden cameras in her Home,

including in her personal bathroom and dressing room. Id. at ¶ 28. These cameras have no

security purpose and unbeknownst to her, were installed to spy on her during her most private

moments, like bathing and changing. Id. at ¶ 30. Shocked and disgusted with what she found, she

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immediately covered the camera lenses with band-aids in order to preserve her privacy and the

privacy of their young children. Id. Orianne also discovered that a long time guard, Mr. Craig

Atthwood, was spying on the family and relaying personal and private information about her to

Mr. Collins after Mr. Collins abandoned the Home in August 2020. For her own safety and

security, and that of their children, she had to relieve him of his duties. Id. at ¶ 31.

The Complaint for Unlawful Detainer and Forcible Entry (the “Complaint”) seeks a

preliminary and permanent injunction granting Plaintiff “exclusive possession” of their Home.

Compl. at pp. 4-8; Motion at p. 9. In other words, Plaintiff wants the Court to issue a mandatory

injunction evicting Orianne and their children from the Home in which they have resided for the

past five years, in addition to Thomas, and on 24-hour notice. More egregious, Plaintiff wants the

Court to strip them of all of their belongings, excepting only the clothes on their backs as they are

dragged out of their Home. Motion at p. 9.

Fortunately, this is not the way the American court system works and, not surprisingly,

there is not a single case wherein a Florida court has ordered a mandatory injunction in these

circumstances, much less on a preliminary basis. Further, Plaintiff certainly has not demonstrated

its claimed entitlement to that extraordinary relief and, frankly, should be ordered to cease and

desist from harassing Orianne, her children and her new husband. For these reasons, and other

reasons detailed below, the Motion should be denied.

ARGUMENT

PLAINTIFF IS NOT ENTITLED TO A TEMPORARY INJUNCTION BECAUSE IT

LACKS STANDING AND FAILS TO DEMONSTRATE ENTITLEMENT
TO SUCH DRASTIC RELIEF

A. Standard

“A temporary injunction is properly entered only in extraordinary circumstances.” City of

Dania Beach v. Konschnick, 763 So. 2d 555, 556 (Fla. 4th DCA 2000). Plaintiff must establish

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four elements to prevail on its claim for temporary injunctive relief: (1) irreparable harm absent an

injunction and the unavailability of an adequate remedy at law; (2) a substantial likelihood of

succeeding on the merits; (3) the threatened injury to Plaintiff outweighs any possible harm to

Defendants; and (4) a temporary injunction will not disserve the public interest. Biscayne Park,

LLC v. Wal-Mart Stores E., LP, 34 So. 3d 24, 26 (Fla. 3d DCA 2010).

Temporary injunctive relief requires that the parties be afforded an opportunity to present

evidence and is only available if the findings supporting the four elements are clear, definite, and

unequivocal. Wade v. Brown, 928 So. 2d 1260, 1261-1262 (Fla. 4th DCA 2006) (“a trial court

reversibly errs when an [injunction] order fails to make specific findings for each of the

elements.”). The failure to establish any one of the elements mandates a denial of injunctive relief.

See, e.g., Florida High School Activities Assoc. v. Kartenovich, 749 So. 2d 1290, 1291 (Fla. 3d

DCA 2000) (finding that plaintiff’s failure to establish one element means that the court “need not

analyze the other elements of the four-part injunction test.”).

Florida courts have cautioned that injunctions “should be granted sparingly.” Shands at

Lake Shore, Inc. v. Ferrero, 898 So. 2d 1037, 1038 (Fla. 1st DCA 2005). An injunction has been

described as the “strong arm of equity” that should never be “granted except in a clear case of

irreparable injury, and with full conviction on the part of the court of its urgent necessity.” In re

The Wackenhut Corp. Shareholders Litig., No. CA 01-13509 AE, slip op. ¶ 18 (Fla. 15th Jud. Cir.

April 26, 2002). Moreover, “[m]andatory injunctions,” as requested here, “are looked upon with

disfavor, and the courts seem even more reluctant to issue them than prohibitory ones.” Johnson,

27 So. 2d at 346. “[R]elief of this kind for the most obvious reasons should be granted only in

situations which so clearly call for it as to make its refusal work real and serious hardship and

injustice.” Id.

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 For the reasons stated below, Plaintiff has not and cannot meet this heavy burden of proof.

Moreover, an injunction may not be granted without the posting of an adequate bond. Fla. R. Civ.

P. 1.610(b).

B. Plaintiff Fails To, And Cannot, Establish Irreparable Harm

Plaintiff admits through its own pleadings that it will not suffer any “irreparable harm”

because Plaintiff bases its claimed irreparable harm entirely on the purported harms to Mr. Collins

vis-à-vis his “irreparable music memorabilia” and Alamo collectibles. Motion at p. 6. But, Plaintiff

is not the owner of this personal property. See id. This undeniable fact is fatal to Plaintiff’s motion

because Plaintiff has not only failed to demonstrate this threshold element, but Plaintiff lacks any

standing to claim the purported harms to Mr. Collins.

In order to have standing, “[a] plaintiff must demonstrate the existence of an actual

controversy between the plaintiff and the defendant in which plaintiff has a sufficient stake or

cognizable interest which would be affected by the outcome of the litigation in order to satisfy the

requirements of standing.” Warren Tech., Inc. v. Carrier Corp., 937 So. 2d 1141, 1142 (Fla. 3d

DCA 2006) (emphasis added). Because the only purported “irreparable harm” belongs to Mr.

Collins, individually, and not Plaintiff, there is no cognizable controversy between Plaintiff and

Defendants. Therefore, the Motion must be denied.

Even if Plaintiff could properly appropriate Mr. Collins’ harms as its own – which it cannot

– Plaintiff has not met its burden to demonstrate irreparable harm. Florida courts define irreparable

harm as an injury that cannot be cured by money damages. See, e.g., B.G.H. Ins. Syndicate, Inc. v.

Presidential Fire & Cas. Co., 549 So. 2d 197, 198 (Fla. 3d DCA 1989) (“For injunctive relief

purposes, irreparable harm is not established where the potential loss can be adequately

compensated for by a monetary award.”). An adequate remedy at law precludes any claim of

irreparable harm, thus Plaintiff cannot obtain a temporary injunction where the pleadings show an

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adequate remedy at law. See Barclays Am. Mortgage Corp. v. Holmes, 595 So. 2d 104, 105 (Fla.

5th DCA 1992). Additionally, general allegations of irreparable harm are not enough. A party

moving for an injunction must “state facts which will enable the court to judge whether the injury

will in fact be irreparable and mere general allegations of irreparable injury will not suffice.” First

Nat’l Bank in St. Petersburg v. Ferris, 156 So. 2d 421, 423-24 (Fla. 2d DCA 1963).

Neither Plaintiff nor Mr. Collins have alleged any such facts. Although Plaintiff makes

much of Mr. Collins’ “irreplaceable music memorabilia” (Motion at p. 6), there is no evidence to

suggest that Mr. Collins’ possessions are at risk. To the contrary, Orianne has lived in the Home,

alongside these possessions, for over five years without issue. Orianne Aff. ¶¶22-23; see Motion

at pp. 2-3 (the Property was purchased in June 2015 after Mr. Collins and Orianne “began a new

romantic relationship”). Curiously, in late August/early September, Mr. Collins came to the Home

to gather some of his personal belongings, yet chose to leave nearly all of the items he now claims

are at risk, which demonstrates that this alleged newly claimed fear is a litigation tactic intended

to deceive the Court into taking extraordinary and unwarranted measures against Orianne, Thomas

and the family. See Orianne Aff. ¶¶22-23. Again, there is no evidence or legitimate fear that

Orianne or Thomas have or will do anything to harm the personal property belonging to Mr.

Collins. Id.; Thomas Aff. ¶¶6-8; see State Inv. Holding, Inc. v. Merrick Partnership, LLC, 103 So.

3d 232, 234 (3d DCA 2012) (“[W]e affirm on the basis that SIH failed to satisfy its burden of

demonstrating the likelihood of irreparable harm. The appellees represented both to the trial court

and this Court that they will not transfer or encumber the property without court approval and they

have not sought such approval. We take the appellees at their word, and unless or until the

appellees seek court approval, or they violate the representations made, no irreparable injury has

been shown.”). He also never expressed to Orianne any concern about the safety of his personal

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belongings after his departure. Id. at ¶ 22.

It is also telling that Plaintiff cites no binding authority for the proposition that Plaintiff

will suffer irreparable harm as a result of Orianne’s continued residence in the Home she has

occupied since Mr. Collins and Orianne purchased it over five years ago. See Motion at p. 8 (citing

48 Fla. Jur. 2d Specific Performance § 66). The only authority Plaintiff cites – a single paragraph

journal entry – stands for the proposition that “specific performance is the presumed remedy for

the breach of an agreement to transfer real property” because “each parcel of land is unique.” This

case, however, has nothing to do with a specific performance claim. Moreover, and the death knell

of Plaintiff’s emergency injunctive relief claim, is that Mr. Collins actually just listed the Home

for sale at a price of $40 million. Motion at p. 4 (“plaintiff’s counsel contacted the prominent

Miami Beach realtor Jill Hertzberg … about listing the Property for sale”).

Instead of supporting its allegations with the necessary facts and the law, Plaintiff has

fabricated a tale of an “armed takeover” by Orianne as purportedly causing it “irreparable harm”

to distract the Court from the truth and frivolity of its legally baseless request. See Motion at p. 8.

Plaintiff intentionally omits from its shameful story that Orianne was at all times using the Home

as her primary residence with their children, that the “armed guards” at the Home worked for the

same security firm that had been surveilling their Home for five years, and that the guards had

always been armed for their family’s protection (particularly for Mr. Collins, prior to his sudden

decision to leave the Home). Orianne Aff. ¶ 27. Thus, to represent to this Court that Orianne staged

a coup to oust Mr. Collins from their Home and that the staff working there is under duress and in

physical danger, is frivolous, purposely inflammatory to attract media attention and sanctionable.

In sum, Plaintiff has demonstrated that it will not suffer any irreparable injury absent an

injunction and thus is not entitled to the extraordinary remedy of a mandatory injunction.

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 C. There Is No Substantial Likelihood Of Success On The Merits

The Motion should also be denied because Plaintiff cannot show a substantial likelihood

of success on the merits of its claims for unlawful detainer and forcible entry.

The “salient questions” for both claims are whether “(1) plaintiff was in peaceful

possession of the property; (2) plaintiff was ousted of actual possession of the property; and (3)

defendant withheld possession of the property from plaintiff without consent or legal process.”

CSC Serviceworks, Inc. v. Boca Bayou Condo. Ass'n, Inc., 240 So. 3d 12, 14 (Fla. 4th DCA 2018).

The Court in CSC Serviceworks explained that the unlawful detainer action has its origins in an

English criminal statute,

which denounced as a crime the practice of subverting actual possession by

the employment of force, even though the possession of the one forcibly
displaced was itself wrongful. The reason for the original statute, as well as
the later English statutes, was to prevent breaches of the peace which
arose when one person would enter upon the land of another and,
frequently by sheer physical power, oust the other from peaceful, albeit
wrongful, possession.

Id. (quoting Floro v. Parker, 205 So. 2d 363, 366 (Fla. 2d DCA 1967) (emphasis added)). “In other

words, unlawful detainer actions are, and have always been, about actual physical dispossession

of real property, not constructive or useful dispossession.” CSC Serviceworks, 240 So. 3d at 15.

Similarly, “[t]he issues in a suit for forcible entry and detainer as here, are (1) whether the plaintiff

was in peaceful possession of the premises, and (2) whether the defendant forcibly took and

retained such possession from him.” Floro, 205 So. 2d at 365.

Plaintiff makes no such showings. Rather, Mr. Collins (Plaintiff’s principal) and Orianne

were jointly residing at their Home until recently (August 28, 2020), at which time Mr. Collins

announced to Orianne that he was moving back to Switzerland, where he maintains his citizenship,

and intends to reside there for the foreseeable future. Orianne Aff. ¶ 19. Thus, contrary to Plaintiff’s

representations, Mr. Collins was not “ousted” from the Home or forcibly dispossessed of it.

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Accordingly, Plaintiff has not, and cannot, demonstrate a likelihood of success on the merits.

D. Plaintiff Does Not Allege Any Threatened Injury That Outweighs The Harm
To Defendants and the Children

Plaintiff does not even address this foundational element in its Motion. This alone requires

denial as a matter of law. See Fla. High School Activities Assoc., 749 So. 2d at 1291; Biscayne

Park, LLC v. Wal-Mart Stores E., LP, 34 So. 3d 24, 27 (Fla. 3d DCA 2010) (“Because we conclude

that Wal–Mart failed to satisfy the first requirement for the issuance of an injunction, it is

unnecessary for us to comment on the remaining requirements.”).

As explained above, even if Plaintiff had addressed this element, any threatened injury

stems entirely from purported harm to Mr. Collins’ personal property within the Home, and alleged

threatened harm to individuals who work in the Home – none of which belong to Plaintiff.

Furthermore, had a threatened harm to Plaintiff been alleged, which it has not, the potential

harm from an order ousting Orianne, the children and Thomas from the Home, clearly outweighs

any threatened injury to Plaintiff. This entire action is nothing more than a retaliation by Mr.

Collins as a result of Orianne’s recent marriage to Thomas. She has lived in the Home with her

sons for over five years. Orianne and Mr. Collins picked the Home because, among other reasons,

it is located close to A.A.’s school, and it would be extremely disruptive and harmful to A.A.’s

mental well-being to be uprooted from the Home on virtually zero notice. Orianne Aff. ¶ 33. At

the time, they purchased the Home, Orianne was living in her nearby house with her soon-to-be

ex-husband, Charles Fouad Mejjati Alami, and as a result of her agreement with Mr. Collins that

they would be buying the Home together and residing there with their family, she moved out of

her previous residence. Id. ¶ 12.

Additionally, Orianne shares custody of A.A. with her ex-husband, who lives

approximately fifteen minutes away from the Home. Uprooting A.A. from the Home would

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severely disrupt his life and sense of stability, and would severely burden the shared-custody and

parenting plan in place. See id. ¶ 33. Thus, Plaintiff’s suggestion that Orianne move herself and

her family across the country to her Las Vegas, Nevada home (Motion at p. 6) only highlights the

improper nature of this entire lawsuit, and Mr. Collins’ true motive – to harass and demean

Orianne, while hurting the children at the same time.

Furthermore, Orianne suffers from a debilitating neurological condition that requires her

to undergo five hours of physical therapy and training per day, Monday through Saturday. Id.

¶¶ 34-37. Indeed, she is lucky, and truly blessed, to be alive and ambulatory by all accounts, as

Mr. Collins well knows. In order to simply maintain her current condition, she undergoes three

hours of therapy in the Home on various equipment purchased for her therapy needs, and in the

Home’s swimming pool, and another two hours of therapy at a nearby therapy center. Id. ¶¶ 34-

37. Without this rigorous, and ongoing therapy regimen, which has been part of her daily routine

since March, 2015 and is closely monitored by her therapist at a local therapy center, Orianne’s

physical condition would rapidly deteriorate and likely result in her becoming wheelchair bound

again. Id. Requiring her to abruptly relocate would disrupt her therapy, could pose dire

consequences to her health and impact the needs and care she provides to her children. Id.

Therefore, for these reasons, and given Plaintiff’s total lack of threatened injury, the harm to

Orianne is not outweighed, and Plaintiff’s suggestion that Orianne relocate to Las Vegas is callous

and out of the question.

Additionally, Orianne should not be required to incur the substantial expense of relocating,

particularly during this COVID-19 health crisis, when her entitlement to remain in her Home has

not yet been resolved. See Fla. Stat. § 82.04 (“The court shall determine only the right of possession

and any damages. Unless it is necessary to determine the right of possession or the record

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titleholder, the court may not determine the question of title.”). Her office is near her Home and

forcing her to move would affect her business. Id. ¶ 29.

In this action, the potential harm to Orianne, her children and new husband from the

imposition of an injunction clearly exceeds the non-existent harm to Plaintiff without an

injunction, which means a mandatory injunction is unquestionably inappropriate. See Johnson v.

Killian, 27 So. 2d 345, 346 (Fla. 1946) (“[R]elief of this kind for the most obvious reasons should

be granted only in situations which so clearly call for it as to make its refusal work real and serious

hardship and injustice.”).

E. Granting The Injunction Will Disserve The Public Interest

Plaintiff argues that the public interest would be served by the issuance of an injunction to

deter others from engaging in what Plaintiff contends is “reckless, lawless” behavior. Motion at p.

9. As with the rest of its inadequate Motion, other than Plaintiff’s conclusory and unsubstantiated

allegation, Plaintiff does not specify any public interest or support its claim with a single case.

Therefore, Plaintiff has failed in its burden on this element as well.

In sum, Plaintiff has not satisfied a single element of the high burden for a preliminary

mandatory injunction, and its Motion should be denied. As already stated, there is no instance

where a Florida court has issued such extraordinary relief where it would dispossess a woman and

her children from their family Home of many years under such circumstances. In fact, this is further

evidenced by Plaintiff’s own filings.

The one case cited by Plaintiff, Annex Industrial Park, LLC v. Corner Land, LLC, 206 So.

3d 739 (Fla. 3d DCA 2016), concerned the use of a “portion” of a commercial property owner’s

land by another adjacent commercial property owner for vehicular access to its property. Id. at

740. That case simply does not apply to the issues before this Court. Id. at 741 (noting the ruling

was limited to “the unique facts and circumstances of this case”).

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 F. If An Injunction Is Issued, Plaintiff Must Post Adequate Bond

As stated above, there is no basis for the entry of an injunction. However, if an injunction

is issued, Florida law mandates the posting of a bond in an amount sufficient to compensate

Defendants for the cost of any damages that they will incur. Florida Rule of Civil Procedure

1.610(b) expressly provides that:

No temporary injunction shall be entered unless a bond is given by the movant in

an amount the court seems proper, conditioned for the payment of costs and
damages sustained by the adverse party if the adverse party is wrongfully enjoined.

There is no shortage of judicial precedent dictating that the posting of a bond is mandatory if a

preliminary injunction is issued, and that failure to require a bond has been found to be reversible

error. See, e.g., The Reserve at Wedgefield Homeowners v. Dixon, 948 So. 2d 65, 67 (Fla. 5th DCA

2007); Florida High School Activities Assoc. v. 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.”); Cutler Creek

Vill. Townhouse Assoc., Inc. v. Cutler Creek Vill. Condo. Assoc., Inc., 584 So. 2d 103, 103 (Fla.

3d DCA 1991) (“the injunction is defective in that it fails to comply with Rule 1.160(b) . . . which

requires the posting of bond to pay costs and damages which could result from the issuance of a

temporary injunction.”); Crow, Pope & Carter, Inc. v. James, 349 So. 2d 827, 828 (Fla. 3d DCA

1977) (“the entry of the temporary injunction without requiring the posting of a bond was

reversible error”). Moreover, Plaintiff itself acknowledges the necessity of an injunction bond.

Motion at p. 9.

“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.” MetalMax Cutting Tools, Inc. v.

Mil-Tec USA, Inc., 794 So. 2d 609, 610 (Fla. 2d DCA 2001). Therefore, the amount of the bond

cannot be nominal. See Bellach v. Huggs of Naples, Inc., 704 So. 2d 679, 680 (Fla. 2d DCA 1997)

(court cannot waive bond requirement, “nor can it comply by setting a nominal amount”). In setting

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the amount of the bond, the foreseeable damages are major factors that must be considered by the

court. See Montville v. Mobile Med. Indus., Inc., 855 So. 2d 212, 215 (Fla. 4th DCA 2003).

Although trial courts have discretion in setting the amount of the bond, the bond must include

payment of costs, including the attorneys’ fees that will be expended by the party. See Richard v.

Behavioral Healthcare Options, Inc., 647 So. 2d 976, 979 (Fla. 2d DCA 1994).

Consistent with this analysis, the Court must require Plaintiff to post a bond sufficient to

reimburse Defendants for damages they would incur if it is ultimately determined that they were

wrongfully required to vacate the Home and obtain a new residence, which residence must be in

Miami Beach because of custody concerns. Accordingly, a proper bond would be no less than $40

million. If the Court determines an injunction is warranted in this case (which it should not),

Defendants request time to assess their damages and the opportunity to present that information at

an evidentiary hearing on the amount of an appropriate bond. See Betsy Ross Hotel, Inc. v. A.G.

Gladstone Assoc., Inc., 833 So.2d 211, 212 (Fla. 3d DCA 2002).

CONCLUSION

For the reasons set forth above, Plaintiff has not demonstrated a single element necessary

to establish the drastic and extraordinary relief sought. Accordingly, the Court should deny

Plaintiff’s Motion for Temporary Injunction and dismiss this case.

Respectfully submitted,
Date: October 19, 2020 AKERMAN LLP

Three Brickell City Centre, Suite 1100

98 Southeast Seventh Street Miami, Florida 33131
Telephone: (305) 374-5600
Facsimile: (305) 374-5095

By: /s/ Dana A. Clayton

Michael B. Chavies, Esq.
Florida Bar No. 191254

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 E-mail: [email protected]
Dana A. Clayton, Esq.
Florida Bar No. 907758
E-mail: [email protected]
Secondary: [email protected]

Attorneys for Defendants

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 19, 2020, I electronically filed the foregoing

Opposition with the Clerk of the Court by using the CM/ECF system. I also certify that the

foregoing document is being served this day on all counsel of record identified on the Service List

via transmission of Notice of Electronic Filing generated by CM/ECF.

/s/ Dana A. Clayton

Attorney

GUNSTER
Michael B. Green, Esq.
Florida Bar No. 87571
Email: [email protected]
600 Brickell Avenue, Suite 3500
Miami, Florida 33131
Tel: (305) 376-6000

FISHER POTTER HODAS, PL

Jeffrey D. Fisher, Esq.
Florida Bar No. 326941
Zachary R. Potter
Florida Bar No. 064430
Gerald F. Richman
Florida Bar No. 66457
Email: [email protected]
515 N. Flagler Drive, Suite 800
West Palm Beach, Florida 33401
Tel: (561) 832-1005

Attorneys for Plaintiff

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