JOHN NERO, ET AL., PETITIONERS,
v.
JOSEPH W. NERO, ET UX., RESPONDENTS
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Petitioners sought a writ of certiorari challenging a trial court's denial of their motion to discharge a lis pendens filed by respondents in a specific performance action involving unrecorded land. The court held that while petitioners had a statutory right to require a bond under Florida law, the trial court did not depart from essential requirements of law by not imposing one that petitioners had failed to properly request.
The trial court did not depart from the essential requirements of law because petitioners failed to properly request that respondents post a bond and the trial court did not deny such relief. However, petitioners retain the right to move the trial court for an order requiring respondents to post a bond.
[1] A trial court may discharge a notice of lis pendens when the underlying action is not founded on a duly recorded instrument or a mechanic's lien.
[2] A party seeking to require a bond to indemnify against damages from a wrongful lis pendens must specifically request such relief from the trial court.
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Join FLexlaw to unlock all legal intelligence“While under section 48.23(3), Florida Statutes, petitioners are entitled to such a bond to indemnify them from damages resulting from the wrongful imposition of the notice of lis pendens, we cannot hold that the trial court departed from the essential requirements of law in not requiring the respondents to post such a bond when that relief was not properly requested by petitioners from the trial court and not denied by the trial court.”
Establishes the core holding that failure to grant unrequested relief does not constitute a departure from essential requirements of law
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Join FLexlaw to unlock all legal intelligenceRespondents filed an action for specific performance of an unrecorded agreement for the conveyance of land and filed a notice of lis pendens. Petition…
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COWART, Judge.
Respondents, as plaintiffs, filed an action for the specific performance of an unrecorded agreement for the conveyance of land and filed a notice of lis pendens. The petitioners petition this court for a writ of certiorari alleging that the trial court departed from the essential requirements of law in denying the motion for discharge of the lis pendens “without consideration of the requirement of a bond and other protections available to Petitioners.”
The problem is that before the trial court petitioners cited Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982), rev. den., 441 So. 2d 614 (Fla.1983), and argued that the respondents were entitled to no lis pen-dens because their cause of action was not based on a recorded instrument. The trial court properly rejected that argument. The petitioners did not request the trial court to require the respondents to post bond. While under section 48.23(3), Florida Statutes,1 petitioners are entitled to such a bond to indemnify them from damages resulting from the wrongful imposition of the notice of lis pendens,2 we cannot hold that the trial court departed from the essential requirements of law in not requiring the respondents to post such a bond when that relief was not properly requested by petitioners from the trial court and not denied by the trial court. Accordingly, we deny the petition for writ of certiorari without prejudice to the petitioners’ moving the trial court for an order requiring the respondents to post bond.
PETITION DENIED.
COBB, C.J., and DAUKSCH, J., concur. . Section 48.23(3), Florida Statutes (1983), provides: When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.
. See Mohican Valley, Inc. v. MacDonald, 443 So. 2d 479 (Fla. 5th DCA 1984); Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA 1983); Berkley Multi-Units, Inc. v. Linder, 464 So. 2d 1356 (Fla. 4th DCA 1985); Feinstein v. Dolene, Inc., 455 So. 2d 1126 (Fla. 4th DCA 1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ross v. Breder, 528 So. 2d 64 (Fla. 3d DCA 1988)…NESBITT, Judge. Petitioners seek review by petition for writ of certiorari of an order denying the dissolution of a notice of lis pendens. We have jurisdiction. James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987); Nero v. Nero, 475 So. 2d 1361 (Fla. 5th DCA 1985); Sunrise Point, Inc. v. Foss, 373 So. 2d 438 (Fla. 3d DCA) cert. denied, 374 So. 2d 99 (Fla.1979). We grant the petition, quash the order, and remand for further proceedings. Respondent, Robert Breder, is a five per cent partner…
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Med. Facilities Dev., Inc. v. Little ARCH Creek Props., Inc., 656 So. 2d 1300 (Fla. 3d DCA 1995)…); Munilla v. Espinosa, 533 So. 2d at 895 (Fla. 3d DCA 1988) (“The action in the trial court not being ‘founded’ on a ‘recorded instrument’ or ‘mechanic’s lien’, it was error for the trial court not to require the posting of a bond.”); Nero v. Nero, 475 So. 2d 1361, 1361-62 (Fla. 5th DCA 1985) (where the underlying cause of action is not based on a recorded instrument, “petitioners are entitled to such a bond to indemnify them from damages resulting from the wrongful imposition of the notice of lis pendens.” (…
Authorities Cited
- Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA 1983)
- Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982)
- Berkley Multi-Units, Inc. v. Linder, 464 So. 2d 1356 (Fla. 4th DCA 1985)
- Feinstein v. Dolene, Inc., 455 So. 2d 1126 (Fla. 4th DCA 1984)
- Mohican Valley, Inc. v. MacDONALD, 443 So. 2d 479 (Fla. 5th DCA 1984)
- Watts v. State, 443 So. 2d 479 (Fla. 5th DCA 1984)
- Bailey v. Hough, 441 So. 2d 614 (Fla. 1983)