Nickerson v. WATERMARK MARINA OF PALM CITY

Citation: 978 So. 2d 187Docket: 4D07-2422

Court: District Court of Appeal of Florida; January 1, 2008; Florida; State Appellate Court

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Thomas and Claire Nickerson sought certiorari and prohibition relief from a non-final order that allowed Watermark Marina to release a lis pendens bond and substitute it with a pledge of stock. Initially, a bond of $200,000 was required when Watermark sued the Nickersons for specific performance regarding the sale of two real property parcels, one fully owned by the Nickersons and the other partially owned. After the lis pendens expired, Watermark moved to release the bond and proposed pledging stock in the corporation that owned the remaining shares, which the Nickersons opposed, citing concerns over the stock's potential worthlessness. The trial court granted the motion, allowing the substitution of 200 shares of stock and holding an additional 100 shares in escrow for value protection. The Nickersons sought certiorari relief, arguing injury from the bond release, while Watermark contended the Nickersons had not demonstrated non-correctable injury. The court referenced Florida Statutes section 48.23(3), affirming that trial courts have discretion to impose bonds for lis pendens based on potential damages, not solely irreparable harm. The court highlighted that trial courts can consider broader factors when deciding on bond requirements, as established by precedent.

The excerpt addresses the reviewability of a trial court's decision regarding the substitution of collateral for a lis pendens bond. It references case law, specifically Florida Communities Hutchinson Island v. Arabia, which established that certiorari review is applicable when a trial court departs from essential legal requirements. The core issue is whether allowing a buyer to post stock in a corporation as collateral instead of a surety bond constitutes such a departure. 

The Nickersons argue that the bond's purpose is to secure damages for the property owner if the lis pendens is improperly recorded, and express concerns about the challenges they would face in liquidating stock to recover damages. They emphasize the lack of authority supporting the substitution of stock for a bond, while the buyer contends that no law explicitly prohibits this substitution. 

The court notes that the setting of a bond is within the trial court's discretion, including the decision to allow alternative collateral. Without a clearly established legal principle against the trial court's order, certiorari review cannot be granted. The court also agrees with the Nickersons that section 48.23(3) and Florida Rule of Civil Procedure 1.610(b) require a bond for temporary injunctions, reinforcing that a bond is necessary to protect the rights of the adverse party.

A pledge of collateral cannot replace a bond without mutual consent, which is absent in this case. The trial court erred by permitting the buyer to substitute shares of stock over the Nickersons' objections, leading to the granting of the petition and the quashing of prior orders. Judge Polen dissents, noting that while there is no specific ruling against substituting stock for a lis pendens bond, there is also no prohibition against it. He acknowledges that although the refusal to set a bond can be reviewed, this situation involves a challenge to the bond's form and value, rather than a refusal. The trial court held an evidentiary hearing where both parties presented evidence regarding the stock's value. The stock in question, owned partly by both petitioners and respondent Watermark, was deemed equivalent to the original $200,000 bond. Additionally, $100,000 worth of stock was placed in escrow to safeguard against potential devaluation. Judge Polen finds no departure from legal requirements and questions whether the petitioners demonstrated the necessary irreparable harm to justify certiorari, ultimately advocating for its denial.