A Florida state appeals court has reversed and remanded the decision of a lower court, which had awarded a temporary injunction to a father seeking to have his son participate in interscholastic wrestling activities.
In particular, the panel noted that the plaintiff’s “notice was inadequate, the pleading was not verified, and the affidavit was as inadequate as the notice.”
In December of 2010, Oviedo High School filed a Request for Eligibility ruling with the Florida High School Athletic Association (FHSAA) on behalf of the minor appellee, the son of James Patrick Downey, Jr..
The request indicated that the minor would be enrolling at Oviedo High School in January of 2011, as a transfer from a high school in Maryland. The request was necessitated because of a question concerning the minor’s eligibility to compete in wrestling at Oviedo High. Specifically, he had been declared ineligible to participate by his high school in Maryland, but had not been declared ineligible by the Maryland High School Athletic Association.
On January 7, 2011, the FHSAA determined that the minor was ineligible to compete interscholastically based on Bylaws 9.3.2 and 9.3.4 of the FHSAA. The appellees sought relief from the FHSAA emergency appeal committee. On January 20, 2011, however, the appeal committee affirmed the original non-eligibility ruling. A further appeal to the FHSAA Board of Directors was available on January 23, but that would have occurred one day after the next wrestling competition. The appellees alleged that unless the minor was allowed to compete in the January 22 competition, he would not be able to qualify for state competition, “thus affecting his ability to receive scholarships from colleges and universities.” At this point the courts became involved.
Downey sought a temporary injunction against the Seminole County Public Schools and the FHSAA that would allow his son’s “participation in interscholastic wrestling activities at Oviedo High School.” Downey secured a hearing time before the circuit court on January 21, 2011.
The only notices of that hearing given to the School Board and the FHSAA were faxed to the Superintendent of the Seminole County Schools and the resident agent for the FHSAA. The faxed notices of hearing had printed on them a date and time stamp of January 20 at 6:02 p.m. “Downey now advises us that the notice was actually served an hour earlier, but that the fax machine used to transmit the documents had not been adjusted from Daylight Savings Time,” wrote the panel of judges. “The record reflects no other attempts to give notice to the appellants, although Downey’s brief said the attorneys representing him called shortly before 5 p.m. to say that a pleading and notice were going to be faxed. While the written record neither confirms nor rejects that assertion, the certificate of service indicates that only the after-hours fax was used for notification purposes. Not surprisingly, the injunction hearing went uncontested, and the lower tribunal entered a barebones injunction order containing no findings, and simply requiring a $500 cash bond to be posted.”
Thereafter, the School Board filed an Emergency Petition for Writ of Prohibition, and requested a stay of the injunction. The appeals court issued the stay and ordered expedited briefing.
The panel of judges cited many reasons for its decision to reverse
“First, it is clear that the notice of the injunction hearing given by Downey was inadequate,” it wrote. “While rule 1.610(a)(1)(A), Florida Rules of Civil Procedure, allows for the entry of a temporary injunction without oral or written notice, that process may only be utilized if the facts shown in an affidavit or verified pleading reflect that immediate and irreparable injury, loss or damage would result before the adverse party could be heard in opposition. That clearly was not the case here. The affidavit indicates only that the minor lives in Oviedo with his father, and that the two of them did not live with the senior Downey’s parents. It also relates that the minor was not ruled ineligible by the Maryland Public Secondary School Athletic Association or by the Anne Arundel County Public Schools. No mention of the fact that the minor was ruled ineligible by his Maryland high school is made. The appellee elected to fax a notice after business hours. Rule 1.080, Florida Rules of Civil Procedure, specifies that facsimile service occurs when the transmission is complete and that service completed after 5:00 p.m. ‘shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.’ On that basis alone, reversal would be appropriate, even if we credit the extra hour claimed because of the failure to adjust the fax machine for the change in time.
“Next, we examine the injunction process and the order that was issued. Rule 1.610 (a)(2) provides that no evidence other than an affidavit or verified pleading may be considered unless the adverse party either appears at the hearing or has been given adequate notice and fails to appear. As indicated above, notice here was inadequate and the pleading was not verified, so we must look to the affidavit for support of the injunction. The affidavit is as inadequate as the notice. While the complaint for injunctive relief is rich in detail, the affidavit is sparse. It says only that Downey is over 18; that he is the natural father of his minor son; that he did not and does not reside with his parents in Maryland; and that his son has never been ruled ineligible by the Maryland equivalent of the FHSAA or by the Anne Arundel County Public Schools. No injunction should have been issued based on this pleading and affidavit.”
Seminole County School Board v. James Patrick Downey, Jr., etc., et al.; Ct. App., 5th Dist.; Case No. 5D11-236, 2011 Fla. App. LEXIS 1556;2/4/11
Attorneys of Record: (for appellant) Ned N. Julian, Jr., Sanford, Fla. (for appellee James Patrick Downey, Jr.)William J. Grant, of Grant & Samargya, LLC, Inverness; (for appellee Florida High School Athletic Association, Inc. Leonard E. Ireland, Jr., of Clayton-Johnston, P. A., Gainesville.
