SUNRISE POINT, INC., A FLORIDA CORPORATION, PHILIP J. SCUTIERI, JR., AND CENTRAL BANK AND TRUST COMPANY, AS TRUSTEE, PETITIONERS,
v.
GEORGE B. FOSS, JR., RESPONDENT
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Florida appellate court reviewed a lower court's denial of a motion to discharge a lis pendens filed against a condominium project. The court held that a lis pendens may not be filed against property when the complaint seeks only money damages or creditor relief without asserting a direct claim against the specific property, and that any lis pendens permitted must be secured by an appropriate bond.
Except as to the two specific units directly at issue in the dispute, a lis pendens cannot be asserted against the remaining property. Even as to those two units, the lis pendens may remain in effect only if the plaintiff posts an appropriate bond, as required by the injunction standards applicable under Florida Statutes Section 48.23(3).
[1] A lis pendens may not be asserted against real property when the underlying complaint seeks only money damages and does not allege a direct claim against that property.
[2] A lis pendens may be permitted to remain in effect on specific condominium units only upon the posting of an appropriate bond by the plaintiff.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Except as to two particular condominium units in which the parties' interests were directly in issue, the complaint sought only money damages and relief in the nature of a creditor's bill or prejudgment attachment. It did not allege a direct claim— cognizable under the law — against or upon the remaining property burdened by the lis pendens.”
Establishes that a lis pendens requires a direct cognizable claim against the property and cannot be used merely for collection purposes.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff-respondent filed a complaint seeking money damages and creditor's bill relief against defendants. The plaintiff also filed a notice of l…
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SCHWARTZ, Judge.
The defendants seek review, by petition for writ of certiorari, of an order which, with immaterial exceptions, denied their motion to set aside and discharge a lis pen-dens filed by the plaintiff-respondent against an entire condominium project in Dade County. We grant the petition.
Except as to two particular condominium units in which the parties’ interests were directly in issue, the complaint sought only money damages and relief in the nature of a creditor’s bill or prejudgment attachment. It did not allege a direct claim— cognizable under the law — against or upon the remaining property burdened by the lis pendens. Hence, except as to those two units, no lis pendens may be asserted under any conditions against the realty involved in this case. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925); Hallmark Manufacturing, Inc. v. Lujack Construction Co., Inc., 372 So. 2d 52 (Fla. 4th DCA 1979); Worldwide Development-Kendale Lakes West v. Lot Headquarters, Inc., 305 So. 2d 271 (Fla. 3d DCA 1974); Beefy King International, Inc. v. Veigle, 464 F. 2d 1102 (5th Cir. 1972).
Even as to the specific units referred to, the lis pendens may be permitted to remain in effect only upon the plaintiff’s posting of an appropriate bond. Since, even concerning those units, the plaintiff’s action was not based upon a “duly recorded instrument or mechanic’s lien,” Section 48.23(3), Florida Statutes (1975) provides that the rules relating to the issuance of injunctions directly apply. In this instance those standards include the requirement of such a bond. See e. g., Leopold v. Richard Bertram & Co., 265 So. 2d 710 (Fla. 3d DCA 1972).1
Accordingly, the order of December 8, 1978 under review, which constitutes a departure from the essential requirements of the law in these respects, Hallmark Manufacturing, Inc. v. Lujack Construction Co., supra, is quashed and the cause remanded for further proceedings consistent with the views expressed herein.
Certiorari granted.
. Because our rulings in this case are based . solely on the sufficiency of the applicable pleadings, we have no occasion to consider the procedural posture in which the legal issues were presented below. Specifically, we need not determine whether we agree with the second district’s conclusion in Kirk v. Baumann, 336 So. 2d 125 (Fla. 2d DCA 1976) that under Sec. 48.23(3), Fla.Stat. (1975), a notice of lis pendens may not be filed in an action not based upon a duly recorded instrument or a mechanic’s lien, without a prior order of court. See Musselwhite v. Raimey, 348 So. 2d 330 (Fla. 1st DCA 1977); cf. Hallmark Manufacturing, Inc. v. Lujack Construction Co., supra, at n. 2. But see our later decision in Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977), holding that the party filing such a lis pendens is entitled to be heard and to present testimony before the lis pendens in discharged upon the defendant’s motion to set it aside.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- DePass v. Chitty, 90 Fla. 77 (Fla. 1925)
- Beefy King Int'l, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972)
- Wilson v. State, 336 So. 2d 125 (Fla. 1st DCA 1976)
- Kirk v. Baumann, 336 So. 2d 125 (Fla. 2d DCA 1976)
- Worldwide Development-Kendale Lakes W. v. LOT Headquarters, Inc., 305 So. 2d 271 (Fla. 3d DCA 1974)
- Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977)
- Leopold v. Richard Bertram & Co., 265 So. 2d 710 (Fla. 3d DCA 1972)
- McCOY v. Florida-Georgia Tractor Co., Inc., 265 So. 2d 710 (Fla. 3d DCA 1972)
- Benton Musselwhite v. Raimey, 348 So. 2d 330 (Fla. 1st DCA 1977)