Bayview Constr. Corp. v. Jomar Props., LLC.

• Decision Date: 19 October 2012
• Docket Number: No. 4D11–4426.,4D11–4426.
• Parties: BAYVIEW CONSTRUCTION CORPORATION, Petitioner, v. JOMAR PROPERTIES, LLC., et al., Respondents.
• Court: Florida District Court of Appeals

97 So.3d 909

BAYVIEW CONSTRUCTION CORPORATION, Petitioner,

v.JOMAR PROPERTIES, LLC., et al., Respondents.

No. 4D11–4426.

District Court of Appeal of Florida,

Fourth District.

Aug. 29, 2012.

Rehearing Denied Oct. 19, 2012.

Ryan V. Kadyszewski and John A. Hockin of Linkhost & Hockin, P.A., Jupiter, for petitioner.

Raymond M. Masciarella II of Raymond M. Masciarella II, P.A., North Palm Beach, for respondents.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the respondents' motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

Bayview Construction Corporation (Bayview), the plaintiff below, filed a petition for writ of certiorari, seeking review of a nonfinal order granting the motion of the defendant Jomar Properties, L.L.C. (Jomar) and its surety, Accredited Surety and Casualty Company, Inc., for reduction in transfer bond. We deny the petition.

Bayview sued Jomar for breach of a construction contract and also to foreclose its construction lien against Jomar's real property. Pursuant to section 713.24, Florida Statutes, Jomar transferred the construction lien to a bond in the amount of $1,602,455.40, which was calculated based on the face amount of the lien, which was $1,014.212.30.

The parties agreed to submit their dispute to binding arbitration. An arbitrator entered an award in Bayview's favor on the lien, but only in the amount of $633,087.80, reserving jurisdiction as to pre-judgment and post-judgment interest, and the entitlement and amount of attorney's fees. Thereafter, the arbitrator also awarded Bayview pre-judgment interest in the amount of $82,836.63 and found Bayview was entitled to attorney's fees. The trial court confirmed the arbitration award, but a dispute (not relevant here) has prevented the trial court from entering a final judgment.

Meanwhile, in September 2011, Jomar and its surety (the respondents in this proceeding) served a motion for reduction in transfer bond, which was verified by counsel. Based partly on Bayview's discovery responses, they represented that the amount which Bayview still sought now totaled only $1,297,991.70–which was $304,463.70 less than the amount of the transfer bond. They requested the court to reduce the transfer bond accordingly.

The respondents set their motion for hearing on the trial court's motion calendar. At the hearing, they argued that the unrebutted evidence showed the bond was too high. Bayview suggested the matter should have been set for an evidentiary hearing and argued against reduction of the transfer bond, asserting that because the case was ongoing, there had been additional attorney's fees, costs, and interest since it last provided discovery. Bayview represented that the current total was approximately $1,524,985, which was very close to the amount of the bond. It explained that the most by which the transfer bond could be reduced was $77,470.40, but that if the bond were so reduced, then Bayview would have to seek an increase each month for the fees and interest generated that month. Bayview asked the court to consider affidavits which counsel had in hand showing the additional amounts that already had accrued, but the trial court refused to do so unless Bayview were to move for a subsequent hearing. After considering only the arbitrator's award, attorney's fees, and pre-judgment interest already determined, the trial court granted the respondents' motion and reduced the bond amount to $1,297.991.70. The court stated that if additional amounts were proved, Bayview could move to increase the bond, as often as weekly. After the trial court denied Bayview's motion for rehearing, Bayview sought certiorari relief from this court.¹

Respondents argue that certiorari relief is not available because the trial court's order reducing the bond will not cause Bayview to suffer material injury for which there is no adequate remedy on appeal. We disagree. Before the issuance of the order, Bayview's claims against Jomar were secured to the extent of $1,602,455.40; as a result of the order, Bayview's claims, which continue to...