ROBERT H. PALMER AND HILDA R. PALMER, HIS WIFE, APPELLANTS,
v.
SHELBY PLAZA MOTEL, INC., A FLORIDA CORPORATION; CHRIST LOUKOUTOS AND HELEN LOUKOUTOS; AND RESORT CONDO-MOTELS, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 2d DCA | 1983-12-21
Nos. 83-150, 83-699
HOBSON, A.C.J., and GRIMES and SCHOONOVER, JJ„ concur.
443 So. 2d 285 Florida District Court of Appeal, Second District (1983) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Palmers appealed a trial court judgment that denied their mortgage foreclosure action and awarded the defendants $69,000 in damages for slander of title based on the Palmers' filing of a lis pendens. The appellate court reversed the slander of title damages and attorney's fees award, holding that the lis pendens was protected by the absolute privilege of judicial proceedings.


Holding

The court held that the lis pendens was encompassed within the absolute privilege of judicial proceedings because it described only the property covered by the mortgage and had no existence separate from the litigation it gave notice of. Therefore, the defendants were not entitled to damages for slander of title. Additionally, because the slander of title action did not arise from a dispute about the escrow agreement, attorney's fees could only be awarded for the defendants' defense of the foreclosure action, not for their prosecution of the slander of title action.


Headnotes

[1] A notice of lis pendens, which has no existence separate from the litigation it notifies, is encompassed within the absolute privilege of judicial proceedings.

[2] A party is not entitled to damages for slander of title based on the filing of a notice of lis pendens that is privileged as part of judicial proceedings.

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Key Quotes

“The lis pendens described only the property covered by the mortgage which appellants were seeking to foreclose. It had no existence separate and apart from the litigation of which it gave notice. Therefore, it was encompassed within the absolute privilege of judicial proceedings.”

Establishes that the lis pendens was protected by absolute privilege and could not form the basis for a slander of title action.

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Facts & Procedural History

The Palmers filed a mortgage foreclosure action against Shelby Plaza Motel, Inc., Christ and Helen Loukoutos, and Resort Condo-Motels, Inc. As part of…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Robert and Hilda Palmer, plaintiffs/counter-defendants below, appeal a final order which 1) denied them relief in a mortgage foreclosure action against Shelby Plaza Motel, Inc., Christ and Helen Louk-outos, and Resort Condo-Motels, Inc., defendants/counter-plaintiffs below; 2) awarded appellees $69,000 in damages on a slander of title action against appellants, which action was predicated on appellants’ filing of a notice of lis pendens after the bringing of their foreclosure action; and 3) reserved jurisdiction to award appellees reasonable attorney’s fees and costs pursuant to an escrow agreement previously entered into between the parties which provided in part that, in the event of any litigation arising from the agreement, the prevailing parties would be entitled to an award of reasonable attorney’s fees and costs. (Appeal No. 83-150) Appellants also appeal the subsequent, related final order which, inter alia, awarded appellees rea sonable attorney’s fees and costs. (Appeal No. 83-699)

Appellants do not contest the dismissal of their suit for foreclosure. They do, however, argue that the court erred in entering a judgment of damages and assessing attorney’s fees against them.

The lis pendens described only the property covered by the mortgage which appellants were seeking to foreclose. It had no existence separate and apart from the litigation of which it gave notice. Therefore, it was encompassed within the absolute privilege of judicial proceedings. Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981); Atkinson v. Fundaro, 400 So. 2d 1324 (Fla. 4th DCA 1981). Even though they successfully defended the mortgage foreclosure, appellees were not entitled to damages for slander of title. Nothing herein will preclude them from later filing a suit for malicious prosecution. See McMurray v. U-Haul Co., 425 So. 2d 1208 (Fla. 4th DCA 1983).

Appellees’ contention that they were awarded damages for breach of an escrow agreement is without merit. Even though the trial testimony was not transcribed, the appellees’ pretrial conference statement clearly demonstrates that their claim for damages was based on slander of title. Moreover, the final judgment states that the damages were awarded because of the filing of the lis pendens. Any breach of the escrow agreement concerning application of the mortgage payments only had the effect of causing the mortgage to appear to be in default when it was not, thereby precipitating the unsuccessful foreclosure action.

The award of attorney’s fees must also be reversed. The trial court stated in its earlier final order that an award to appellees of reasonable attorney’s fees and costs would be based upon the escrow agreement. The foreclosure action arose from a dispute about this agreement, but the slander of title action did not. Nevertheless, the court awarded attorney’s fees in an amount representing not only the legal assistance rendered appellees concerning their defense against the foreclosure action but also that afforded them regarding their simultaneous prosecution of the slander of title action. Even if appellees had been able to sustain their slander of title action, they were only entitled to attorney’s fees for the defense of the foreclosure action.

Accordingly, we reverse appellees’ judgment for damages against appellants and also the award of attorney’s fees. We remand with directions that the trial court gather whatever further evidence and testimony is necessary to enable it to award an amount which corresponds with the legal aid afforded appellees for the defense of the foreclosure action. In all other respects, we affirm the final orders appealed.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

HOBSON, A.C.J., and GRIMES and SCHOONOVER, JJ„ concur.


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Citator

Cited By

  • Pressman v. Ingrid Wolf, 732 So. 2d 356 (Fla. 3d DCA 1999)
    …claim for slander of title fails. The buyer did not prove [*362] that the sellers acted in a -willful or wanton manner; the lis pendens were based on a duly recorded instrument, so their filing was privileged. See Palmer v. Shelby Plaza Motel, Inc., 443 So. 2d 285 (Fla. 2d DCA 1983). We do agree with the buyer, however, that the trial court did not err in terminating the sellers’ foreclosure action. It is undisputed that in compliance with an order of the trial court, the buyer had been paying into escrow the…
  • …torneys’ fees for their complete involvement in the entire case. The award of attorneys’ fees to Citizens should have been for its prosecution of the complaint only and not for its defense of the counterclaim. See Palmer v. Shelby Plaza Motel, Inc., 443 So. 2d 285 (Fla. 2d DCA 1983). We, therefore, vacate and remand the fees for reassessment in accordance with this opinion. All other matters have been considered and are found to be without merit. AFFIRMED IN PART and REVERSED IN PART. HERSEY and DELL, JJ.,…
  • Triefler v. Barnett Bank OF S. Fla., N.A., 588 So. 2d 240 (Fla. 3d DCA 1991)
    …e amount of attorney's fees that would be reasonable in collecting on the note. See also Citizens Fed. Sav. and Loan Ass’n of St. Lucie County v. Loeb Rhoades, Hornblower & Co., 473 So. 2d 679 (Fla. 4th DCA 1984); Palmer v. Shelby Plaza Motel, Inc., 443 So. 2d 285 (Fla. 2d DCA 1983); Pitkin v. Ryan, 409 So. 2d 1221 (Fla. 4th DCA 1982). Triefler's second issue on appeal is that the trial court erred in finding him liable for the balance due on the note when he did not sign a personal guaranty. This court will…

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