HALLMARK BUILDERS, INC., PETITIONER,
v.
HICKORY LAKES OF BRANDON, INC., RESPONDENT
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Hallmark Builders sought to amend its specific performance complaint to add a third-party purchaser as a defendant and to reinstate a discharged lis pendens. The trial court denied the amendment motion and discharged the lis pendens without notice or hearing. The appellate court granted the petition for certiorari, holding that the trial court departed from essential requirements of law by denying the amendment (which was necessary to name an indispensable party) and by discharging the lis pendens without affording due process.
The trial court departed from essential requirements of law by denying the motion to amend because a third-party purchaser with knowledge of a prior contract is an indispensable party to a specific performance action and failure to name such a party subjects the case to dismissal. The trial court also departed from essential requirements of law by discharging the lis pendens without affording petitioner notice and an opportunity to be heard. The trial court has authority to allow filing of a lis pendens beyond one year from commencement of action if it can extend its effect beyond one year.
[1] A third-party purchaser with actual or constructive notice of a prior contract to sell real property may be subject to an action for specific performance.
[2] A third-party purchaser is an indispensable party to a suit for specific performance of a right of first refusal.
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Join FLexlaw to unlock all legal intelligence“Where a third-party purchaser is aware of a previous contract to sell to another, conveyance to the third party will be deemed fraudulent. Under such circumstances, an action for specific performance against the third party is proper.”
Establishes that third-party purchasers with knowledge of prior contracts can be sued for specific performance
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Join FLexlaw to unlock all legal intelligenceHallmark Builders filed a suit for specific performance based on a right of first refusal to purchase real property. While the suit was pending, the r…
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OTT, Acting Chief Judge.
Petitioner, plaintiff below, seeks review of an order denying its motion to amend a complaint for specific performance. Petitioner requested permission to add as a new defendant a party who allegedly purchased from respondent a portion of the real property in question. By the same order, the court sua sponte discharged a lis pendens filed by petitioner without affording petitioner notice and an opportunity to be heard. We grant the petition for writ of certiorari and quash the order of the lower court.
The initial complaint was for specific performance of a right of first refusal to purchase real property.1 The second amended complaint which petitioner was denied permission to file alleges that while the suit was pending respondent conveyed a portion of the property in question to a third party, Interprop. The second amended complaint further alleges that Interprop had actual and/or constructive notice of petitioner’s rights in the property at the time of the conveyance. Petitioner seeks to enforce its right of first refusal against Interprop.
Where a third-party purchaser is aware of a previous contract to sell to another, conveyance to the third party will be deemed fraudulent. Under such circumstances, an action for specific performance against the third party is proper. Coates v. Hale, 429 So. 2d 761 (Fla. 1st DCA 1983). In Freeman v. Tucker, 79 Fla. 402, 84 So. 174 (1920), the court held that a third-party purchaser is an indispensable party to a suit for specific performance. Furthermore, failure to name the third party in the suit will subject the case to dismissal. Id. Unless petitioner is allowed to add Inter-prop as a party defendant, the court will be unable to determine the rights of all parties interested in the subject real property. We therefore conclude that the lower court’s denial of petitioner’s motion to amend is a departure from the essential requirements of law resulting in irreparable harm to petitioner. Petitioner filed the notice of lis pen-dens when it filed the motion to amend. It is not founded on a duly recorded instrument. See § 48.23(3), Fla.Stat. (1983). A petition for writ of certiorari is the proper vehicle to challenge the dissolution of a lis pendens. See State-Wide Construction, Inc. v. Dowda, 424 So. 2d 198 (Fla. 5th DCA 1983).
We hold that the trial court departed from the essential requirements of law when it discharged the lis pendens without affording petitioner notice and an opportunity to be heard. See Glusman v. Warren, 413 So. 2d 857 (Fla. 4th DCA 1982). At any future hearing, respondent will have the burden of proving that the lis pendens is inappropriate. See Cacaro v. Swan, 394 So. 2d 538 (Fla. 4th DCA 1981).
Under section 48.23(2), a notice of lis pendens not founded on a duly recorded instrument is ineffectual beyond one year from the commencement of the action unless the court extends the time following reasonable notice and for good cause. We do not interpret this statute as a bar to initially filing the notice of lis pendens beyond one year from commencement. If the court can extend the effect of the notice of lis pendens beyond one year, it stands to reason that the court can allow it to be filed beyond one year of commencement in the first place.
We decline to address the merits of whether the lis pendens should or should not be discharged. The parties can present their arguments to the trial court.
Petition for writ of certiorari GRANTED.
SCHOONOVER and LEHAN, JJ., concur. . We previously reversed a summary judgment in this case entered in favor of respondent. See Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 444 So. 2d 1047 (Fla. 2d DCA 1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987)…tinuance of a notice of lis pendens is only reviewable by writ of certiorari. Bay Place Development Corp. v. Ellis First National Bank of West Pasco, N.A., 465 So. 2d 628 (Fla. 2d DCA 1985); Hallmark Builders, Inc. v. Hickory Lanes of Brandon, Inc., 458 So. 2d 45 (Fla. 2d DCA 1984). Therefore, we treat this appeal as a petition for writ of certiorari, and deny the petition. The state attorney has failed to demonstrate [*955] that the trial court’s order dissolving the notice of lis pendens was a departure fr…
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Taylor v. Steckel, 944 So. 2d 494 (Fla. 3d DCA 2006)…ly recorded instrument, concluding that the trial court properly extended a lis pendens beyond one year from commencement of the action even though no extension had been requested); see also Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So. 2d 45, 47 (Fla. 2d DCA 1984) (concluding that section 48.23(2) does not bar filing a notice of lis pendens more than one year after commencement because if a “court can extend the effect of the notice of lis pendens beyond one year, it stands to reason th…
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State Farm Gen. Ins. Co. v. Grant, 641 So. 2d 949 (Fla. 1st DCA 1994)…(Fla.1986) (determination of an issue not raised by pleadings or on which parties have not been given notice or opportunity to be heard is departure from essential requirements of law); and Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So. 2d 45 (Fla. 2d DCA 1984) (trial court departed from essential requirements of law when it discharged lis pendens without affording petitioner notice and an opportunity to be heard). As for the requirement that irreparable harm be shown, Petitioner assert…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cacaro v. Swan, 394 So. 2d 538 (Fla. 4th DCA 1981)
- Glusman v. Warren, 413 So. 2d 857 (Fla. 4th DCA 1982)
- State-Wide Constr., Inc. v. Dowda, 424 So. 2d 198 (Fla. 5th DCA 1983)
- Hallmark Builders, Inc. v. Hickory Lakes OF Brandon, Inc., 444 So. 2d 1047 (Fla. 2d DCA 1984)
- Freeman v. Alethea R. Tucker, 79 Fla. 402 (Fla. 1920)
- Coates v. Hale, 429 So. 2d 761 (Fla. 1st DCA 1983)