
    Arthur LIPPER, III, Appellant, v. Tomas KANN, a trustee of the Clara Kann Trust, Appellee.
    No. 91-0349.
    District Court of Appeal of Florida, Fourth District.
    July 24, 1991.
    
      Richard B. Barkin, Boca Raton, and Robert E. Dubow, Dania, for appellant.
    C. David Tangora of Wurtenberger & Schottenfeld, P.A., Plantation, for appellee.
   DELL, Judge.

Arthur Lipper, III appeals an order denying his motion to dissolve a temporary injunction entered without notice.

The trial court entered the temporary injunction based upon pleadings and affidavits submitted by appellee. At the hearing on appellant’s motion to dissolve the injunction, the trial court announced that appellee had only the burden to prove that he had a clear legal right to have the temporary injunction remain in full force and effect. Appellee presented evidence sufficient to meet this burden, but failed to introduce evidence that he would suffer irreparable harm and that he had no adequate remedy at law. After hearing the evidence and argument of counsel, the trial court denied appellant’s motion to dissolve the injunction.

We hold that the trial court erred when it limited appellee’s burden of proof to the issue of whether he had a clear legal right to continue the temporary injunction. Appellee had the burden to show that the complaint and supporting affidavits were sufficient to support the injunction. See State v. Beeler, 580 So.2d 932, 934 (Fla.1988). To support the injunction, appellee had to show that the trust, for which he was a trustee, would suffer irreparable harm and that he had no adequate remedy at law. See Hiles v. Auto Bahn Federation, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) (citing Finkelstein v. Southeast Bank, N.A., 490 So.2d 976 (Fla. 4th DCA 1986)). Therefore, we reverse the order denying appellant’s motion to dissolve the injunction.

We also remand this cause for a further evidentiary hearing on appellant’s motion. The same witnesses who testified at the hearing furnished the affidavits which the court apparently considered when it granted the temporary injunction. Obviously, appellee could have elicited the information contained in their affidavits but for the limitations set by the court. When appellee offered to proffer evidence by affidavit and live testimony which would have shown that the individual making disbursements on behalf of the trust felt that he was frozen by the competing demands of the two trustees, the court questioned whether that issue was before him. As a result of this uncertainty, appellee did not proffer this evidence. Under the circumstances, we do not believe that the trial court’s limitation of appellee’s burden of proof should deprive him of the opportunity to introduce evidence which may establish the remaining elements necessary to sustain the injunction. Accordingly, we reverse and remand this cause for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

HERSEY, J., concurs.

GUNTHER, J., concurs in part and dissents in part.

GUNTHER, Judge,

concurring in part and dissenting in part.

I agree that the order denying defendant Lipper’s motion to dissolve the ex parte temporary injunction should be reversed. Since Kann failed to meet his burden of proof at Lipper’s motion to dissolve, I disagree that the cause should be remanded for another hearing. To do so will give Kann a second opportunity to meet his burden of proof. Accordingly, I would reverse and remand to the trial court with instructions to vacate both the order denying Lipper’s motion to dissolve and the order granting Kann’s motion for temporary injunction without notice.

At a hearing on a motion to dissolve, although the defendant is the movant, the plaintiff clearly has the initial burden “to show that the complaint and supporting affidavits are sufficient to support the injunction.” State v. Beeler, 530 So.2d 932, 934 (Fla.1988). Furthermore, a party seeking a temporary injunction must prove (1) irreparable harm, (2) a clear legal right, (3) an inadequate remedy at law, and where applicable, (4) consideration of the public interest. Hiles v. Auto Bahn Federation, Inc., 498 So.2d 997 (Fla. 4th DCA 1986).

In the instant case, at the hearing on the motion to dissolve Kann’s counsel recognized that he had the burden of initially going forward with proof to show support for the injunction. But Kann’s counsel never indicated to the trial court what essential elements he was required to prove and what he intended to prove in order to successfully meet his burden. At every stage of the hearing, Lipper’s counsel repeatedly and correctly advised the trial court of the essential elements that Kann was required to prove in order to meet his burden. It is notable that Kann’s counsel never once contradicted Lipper’s counsel’s statement concerning the plaintiff’s burden of proving the essential elements. Instead, Kann’s counsel simply acquiesced to the trial court’s error of limiting him to only having to prove one of the essential elements to be entitled to the issuance of a temporary injunction. Since the law on this burden is so clear and Kann’s counsel made no attempt whatsoever to dispute the accuracy of Lipper’s counsel’s statement concerning the plaintiff’s burden of proof, I conclude that the plaintiff should not be permitted to capitalize on the trial court’s error. In light of the extraordinary nature of a temporary injunction, I believe that it is unjust to permit Kann a second opportunity to meet his burden to avoid Lipper’s motion to dissolve. Accordingly, I would remand to the trial court to vacate both the order denying Lipper’s motion to dissolve and the order granting the ex parte motion for temporary injunction.  