ST. MARKS POND INDUSTRIAL, LLC F/K/A ST. MARKS POND BORROW PIT, LLC vs MICHAEL W. BOLES, DARIA F. BOLES, DANIEL HILL, AND GREGORY JONES

• Court: District Court of Appeal of Florida
• Decided: May 26, 2023
• Docket: 22-1201
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ST. MARKS POND INDUSTRIAL, LLC F/K/A ST. MARKS POND BORROW PIT, LLC,

Appellant,

v. Case No. 5D22-1201 LT Case No. 2021-CA-0828

MICHAEL W. BOLES, DARIA F. BOLES, DANIEL HILL, AND GREGORY JONES,

Appellees. ________________________________/

Opinion filed May 26, 2023

Nonfinal Appeal from the Circuit Court for St. Johns County, Kenneth J. Janesk, Judge.

John J. Spence, of Naples & Spence, Attorneys at Law, PLLC, St. Augustine, for Appellant.

Richard Q. Lewis, III, of Richard Q. Lewis, III, PA, of St. Augustine, for Appellees, Michael W. Boles and Daria F. Boles.

No Appearance for Remaining Appellees. HARRIS, J.

St. Marks Pond Industrial, LLC f/k/a St. Marks Pond Borrow Pit, LLC

(“St. Marks”), appeals the trial court’s nonfinal order which both denied its

emergency motion to dissolve temporary injunction and failed to impose any

bond requirement. We find no error in the denial of the motion to dissolve.

However, we agree with St. Marks that the trial court erred in refusing to

impose a bond.

Florida Rule of Civil Procedure 1.610(b) provides that “[n]o temporary

injunction shall be entered unless a bond is given by the movant in an

amount the court deems proper, conditioned for the payment of costs and

damages sustained by the adverse party if the adverse party is wrongfully

enjoined.” While a trial court is afforded discretion in setting the amount of

bond for a temporary injunction, see Montville v. Mobile Med. Indus., Inc.,

855 So. 2d 212, 215 (Fla. 4th DCA 2003), the court cannot waive the bond

requirement of rule 1.610(b), nor can it comply by setting a nominal amount.

See Forrest v. Citi Residential Lending, Inc., 73 So. 3d 269, 279 (Fla. 2d

DCA 2011).

St. Marks properly argues that the trial court should have issued a bond

pursuant to rule 1.610(b) when it denied the emergency motion to dissolve

the temporary injunction. A bond is required for a temporary injunction absent

2 evidence of financial inability to maintain a bond, agreement of both sides,

or any other recognized ground. See Dubner v. Ferraro, 242 So. 3d 444,

447–48 (Fla. 4th DCA 2018). While the trial court’s order provides that “[n]o

bond shall be required only through the stipulation of St. Marks,” there is no

record evidence that the parties waived or stipulated to a bond amount. It

therefore appears that the temporary injunction is defective for failing to

include a bond requirement.

We agree that the court erred by not setting a bond amount where

there is no evidence of a stipulation to do so. In Supinski v. Omni Healthcare,

P.A., 853 So. 2d 526, 532 (Fla. 5th DCA 2003), where there was confusion

as to whether the parties stipulated to a bond amount, remand was

necessary to conduct an evidentiary hearing concerning whether the bond

amount was the subject of a stipulation of the parties. Similarly, we remand

this matter back to the trial court to hold an evidentiary hearing on whether

the parties stipulated to waiving a bond, and if no stipulation occurred, to hold

a hearing addressing the proper amount of bond.

AFFIRMED in part; REVERSED and REMANDED.

WALLIS and EDWARDS, JJ., concur.