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Defendant's Attorney: Luis E. Insignares of Luis E. Insignares, P.A.

Description:

Lakeland, FL - Divorce lawyer represented Appellant with appealing from the final order granting amotion to enforce the parties' marital settlement agreement.

In May 2019, the trial court entered a final judgment of
dissolution between the parties. That judgment adopted and
incorporated the parties' MSA, pursuant to which the Former Wife
bought out the Former Husband's interest in a marine towing
company (the LLC). Going forward, the Former Wife would own the
LLC with two other partners.
In August 2020, the parties entered into a global postjudgment
settlement agreement to resolve issues that had arisen following the
entry of the final judgment. This broader agreement incorporated
separate noncompete and noninterference agreements. Pursuant to
the noninterference agreement, the Former Husband agreed, among
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other things, "that the reputation, competence, qualifications, and
standing in the business community is very important to the
success or the business of the LLC" and that he would not "make
any derogatory comments or other oral or written statements that
would be detrimental to the business of the LLC or to the [Former
Wife] individually or which could adversely [a]ffect the business of
the LLC and the [Former Wife]." The agreement provided further
that the period of noninterference would span from May 2, 2019,
until April 30, 2024, and that the Former Wife could seek injunctive
relief in the event of a breach. The trial court adopted the global
postjudgment settlement agreement and reserved jurisdiction to
enforce its terms.
In her Verified Motion for Enforcement, Injunctive Relief,
Contempt, All Available Sanctions, Attorney's Fees, Costs and Other
Relief ("the contempt motion"), the Former Wife asserted that in
violation of the MSA and the noninterference agreement, the Former
Husband had, among other things, disparaged the LLC by posting
on his Facebook page a comment regarding the ongoing failure of
the "owner" to address what was "easily the most dangerous
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situation in Bokeelia" involving a damaged fuel tank "at the marina
on the end of Porto Bello Street."
The MSA and the global postjudgment settlement agreement
were already part of the trial court record. The Former Wife
attached additional documents as exhibits to her contempt motion,
including copies of the signed noninterference agreement, the
comment posted on the Former Husband's Facebook page, and a
listing of the Former Husband's Facebook friends, which, she
asserted, included "eight (8) past Captains, three (3) Captain's
wives, a Tow BoatUS business owner, and a marina, all of who
either do business with or are clearly aware of the [LLC]."1
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On appeal, the Former Husband argues that the trial court
could not consider any of the documents that the Former Wife
attached to her motion because her counsel neglected to formally
move them into evidence at the hearing on the contempt motion,
which was conducted via Zoom. At the hearing, however, the
Former Husband never objected to the Former Wife's references to
these documents or to the court's consideration of them; to the
contrary, he unhesitatingly referred to them himself. Given the
Former Husband's failure to object, we decline to reverse on this
basis. See Carroll v. Carroll, 936 So. 2d 706, 707 (Fla. 4th DCA
2006) (concluding that the wife's technical failure to formally place
the parties' financial affidavits into evidence did not preclude an
award of attorney's fees to the wife when the affidavits were in the
court file and both parties argued extensively regarding their
contents without objection); Kerper v. NCNB Nat'l Bank of Fla., 496
So. 2d 199, 200–01 (Fla. 4th DCA 1986) (concluding that the bank's
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In support of the Former Wife's request for attorney's fees, her
counsel filed an affidavit averring that the Former Wife had incurred
$3,832.25 in attorney's fees and costs from August 21 through
September 23, 2020, including $3,740 in fees for counsel (8.8 hours
x $425/hour), $18.75 in fees for the legal assistant (.25 hours x
$75/hour), and a total of $73.50 in costs for copying, printing, and
service of process. Counsel attached to the affidavit a copy of the
retainer and fees agreement between his firm and the Former Wife
and copies of his billing records. The affidavit contemplated that
additional time and costs would need to be discussed at the hearing
on the contempt motion.
technical failure to formally place the formal judgment and closing
statement from an earlier lawsuit into evidence was harmless when
the parties stipulated to their authenticity, they were shown to the
trial judge without objection, and they were otherwise part of the
record); cf. G.E.G. v. State, 417 So. 2d 975, 976–77 (Fla. 1982)
(rejecting a juvenile's challenge to his adjudication of delinquency
although the State failed to introduce into evidence the "substance
marked for identification and about which there was testimony that
it was marijuana" and "hold[ing] that when a defendant is charged
with possession of a controlled substance, that substance, if
available, must be introduced into evidence but that a defendant
who fails to object to its nonintroduction may not be heard to
complain of the error on appeal").
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At the hearing, the Former Wife testified that she had blocked
the Former Husband on Facebook and had learned about his post
from other people. She testified that as of the time of the hearing,
the post had not been removed and had, in fact, been reposted by
one of the Former Husband's friends. The Former Wife reiterated
that the post was "very damaging" to the LLC, especially because
many people with access to the post were involved in the marine
industry. She also testified that the post was consistent with
anonymous, baseless complaints that had been made against the
LLC over the course of the dissolution proceedings, commenting
that she was now on a first-name basis with the county employee
tasked with investigating them.
The Former Husband admitted that he had posted the
comment and that he had not taken it down. He testified, however,
that he had been referring to another business at the marina at the
end of Porto Bello Street in Bokeelia.
Plainly finding the Former Husband not credible, the trial
court entered an order finding him in breach of the noninterference
agreement and ordering him to remove the post from Facebook.
The court further ordered that the Former Husband would be held
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responsible for any other person sharing the post. The court also
ordered the Former Husband to pay the claimed amount of
$3,832.25 in attorney's fees "based on a reasonable hourly rate of
$425.00 for [the Former Wife's attorney] and $75.00 for [the
attorney's legal assistant], and 9.05 hours, which the Court finds as
reasonable."
By separate order, the trial court entered an injunction
directing that the Former Husband
immediately and permanently cease any and all social
media posts, remove existing posts within twenty-four
(24) hours of the date and time of this Order and further
contact any and all other of his Facebook friends who
reacted to and/or commented and/or shared his post,
notifying them of the entry of this Permanent Injunction.
The injunction was to "continue for as long as Former-Wife or
her business partners continue to operate their business in
Southwest Florida." The Former Husband unsuccessfully moved for
rehearing. This appeal followed.
B. Analysis.
"[A] court should not issue an injunction broader than
necessary to protect the injured party under the particular
circumstances." Smith v. Wiker, 192 So. 3d 603, 604 (Fla. 2d DCA
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2016) (citing Clark v. Allied Assocs., Inc., 477 So. 2d 656, 657 (Fla.
5th DCA 1985)). Rather, "[t]he order should be adequately
particularized, especially where some activities may be permissible
and proper." Id. (quoting Clark, 477 So. 2d at 657). We readily
conclude that the injunction is overbroad. As the Former Husband
contends, this provision in the injunction is intended to prevent
him from interfering with the LLC, as contemplated by the
noninterference agreement, but its plain language precludes him
from posting anything on social media, regardless of what it
concerns, and requires him to remove all existing posts, regardless
of what they concern. Accordingly, we reverse the injunction and
instruct the trial court on remand to narrowly tailor this provision
to prevent interference with the LLC. See Neptune v. Lanoue, 178
So. 3d 520, 522-23 (Fla. 4th DCA 2015) (recognizing that an
injunction must be narrowly tailored to balance the desire to
protect the person seeking the injunction with the need to
safeguard the First Amendment rights of the person whose activities
are being restricted); cf. Pediatric Pavilion v. Agency for Health Care
Admin., 883 So. 2d 927, 930 (Fla. 5th DCA 2004) ("An injunction
'may not be drawn to enjoin all conceivable breaches of the law; it
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must instead be carefully tailored to remedy only the specific harms
shown.' It may be no broader than is necessary to restrain the
unlawful conduct and should constitute the least intrusive remedy
that will be effective." (first quoting Operation Rescue v. Women's
Health Ctr., Inc., 626 So. 2d 664, 670 (Fla. 1993); and then citing
id.)).
With regard to the trial court's award of the Former Wife's
attorney's fees and costs, the Former Husband argues that reversal
is warranted because no evidence on the matter was admitted at
the contempt hearing. Indeed, we note that there was no
discussion of the matter at all at the hearing. "[The] argument that
there was simply no competent, substantial evidence to support the
award [of attorney's fees] may be raised for the first time on appeal."
Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So. 3d 958, 961
(Fla. 4th DCA 2014).
As noted above, however, the record on appeal includes the
affidavit from the Former Wife's counsel, a copy of the retainer and
fees agreement, and copies of counsel's billing records. Accordingly,
although we reverse the trial court's award of fees and costs, we
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remand for an evidentiary hearing on the matter. As the Fourth
District explained in Diwakar:
Generally, when the record on appeal is devoid of
competent substantial evidence to support the attorney's
fee award, the appellate court will reverse the award
without remand for additional evidentiary findings.
However, when the record contains some competent
substantial evidence supporting the fee or cost order, yet
fails to include some essential evidentiary support such
as testimony from the attorney performing the services,
or testimony from additional expert witnesses, the
appellate court will reverse and remand the order for
additional findings or an additional hearing, if necessary.
Id. (citations omitted) (internal quotation marks omitted); see also
Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038, 1041 (Fla. 2d
DCA 2015) ("Remand for 'an evidentiary hearing on the amount of
attorney's fees and costs sought by the bank' is necessary and
proper where the only evidence of the fees and costs 'was an
affidavit filed by the bank's counsel prior to trial.' " (quoting Wagner
v. Bank of Am., N.A., 143 So. 3d 447, 448 (Fla. 2d DCA 2014))).

Outcome: In sum, we reverse the portion of the injunction requiring that
the Former Husband "immediately and permanently cease any and
all social media posts" and "remove existing posts" and remand with
instructions that the trial court narrowly tailor this provision to
prevent interference with the LLC. We also reverse the award of
attorney's fees and costs to the Former Wife and remand for an
evidentiary hearing. In all other respects, we affirm.

Plaintiff's Experts:

Defendant's Experts:

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