PORTER HOMES, INC., PETITIONER,
v.
JAMES SODA, JR., TONY GIURATO, SR., AND LARRY A. SCARAZZO, INDIVIDUALLY AND AS TRUSTEE FOR JOHN R. HARTLEY, RICHARD GENTILE, NANCY GENTILE, STANLEY RUDNICKI, NICK C. YACAVONE, BENNY J. PONZANI, JAMES J. NAUMOFF, ROBERT K. ROLOFF, RICHARD HELLMAN AND GAIL HELLMAN, RESPONDENTS
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Porter Homes seeks to quash a lis pendens filed against its property by judgment creditors of Randall E. Porter, claiming no connection exists between the corporation and Porter. The court grants the petition in part, requiring respondents to post a bond as a condition of maintaining the lis pendens.
The court granted the petition and remanded for the trial court to require respondents to post a bond as a condition of maintaining the lis pendens, as required by Florida Statutes section 48.23(3) when a lis pendens is not founded upon a duly recorded instrument.
[1] A court may require a bond to be posted when a lis pendens is not founded upon a duly recorded instrument.
[2] Certiorari review is appropriate when a trial court refuses to dissolve a lis pendens or to require the posting of a bond.
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Join FLexlaw to unlock all legal intelligence“since it is undisputed that the lis pendens is not founded upon a duly recorded instrument, section 48.23(3), Florida Statutes (1987), which holds the court "may control and discharge the notice of lis pen-dens as it may grant and dissolve injunctions," requires the posting of a bond by respondents”
Establishes the statutory basis and requirement for bond posting when a lis pendens lacks a recorded instrument foundation
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Join FLexlaw to unlock all legal intelligenceIn 1985 and 1987, respondents obtained judgments exceeding $50,000 against Randall E. Porter. Unable to collect, they filed an action for equitable re…
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PER CURIAM.
Petitioner Porter Homes seeks a writ of certiorari to quash an order of the circuit court which denies its motion to dissolve a lis pendens filed against certain real property located in Collier County.1 We grant the petition.
In 1985 and 1987 respondents obtained judgments against Randall E. Porter totalling more than $50,000. In their pending action for equitable relief they claim that all efforts to collect on these judgments have been unsuccessful. Porter Homes, in whose name the Collier County property is titled, is named as a defendant in the present action because it is alleged that Randall Porter is president and owner of Porter Homes. Porter Homes denies any connection between it and Randall Porter or between Randall Porter and the subject property. The corporation moved the trial court to dissolve the lis pendens, claiming that it is not founded upon a written instrument and that respondents’ underlying complaint fails to sufficiently allege that Porter, the judgment debtor, owns any interest in the property.
Reiterating its attack on the sufficiency of respondents’ complaint, Porter Homes first asks us to direct the trial court to dissolve the lis pendens entirely. See, e.g., Hallmark Manufacturing, Inc. v. Lujack Construction Co., Inc., 372 So. 2d 520 (Fla. 4th DCA 1979).
We are not persuaded that the trial court erred in determining that the complaint states a cause of action and thus that respondents should answer the complaint.2 However, we do agree that since it is undisputed that the lis pendens is not founded upon a duly recorded instrument, section 48.23(3), Florida Statutes (1987), which holds the court “may control and discharge the notice of lis pen-dens as it may grant and dissolve injunctions,” requires the posting of a bond by respondents. See, e.g., Florida Communities Hutchinson Island v. Arabia, 452 So. 2d 1131 (4th DCA 1984).
The petition for writ of certiorari is granted and this case is remanded to the trial court for further proceedings consistent with this opinion.
SCHEB, A.C.J., and RYDER and HALL, JJ., concur. . Historically this court has approved the use of certiorari review when the trial court has re fused to dissolve a lis pendens or to require the posting of a bond. See, e.g., James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987). The Third District has recently suggested that such orders are more appropriately reviewed by interlocutory appeal, as involving the refusal to modify or dissolve an injunction; Fla.R.App.P. 9.130(a)(3)(B). Munilla v. Espinosa, 533 So. 2d 895 (Fla. 3d DCA 1988).
. To delve into the merits of respondents’ allegations at this juncture places us in the position of reviewing by certiorari the denial of a motion to dismiss a complaint.
We find this situation somewhat analogous to review of discovery orders entered in connection with prayers for punitive damages, a practice disapproved by the supreme court in Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987), because the propriety of such orders generally is inextricably connected with the sufficiency of the complaint. This situation can be distinguished from those wherein it is readily apparent from the face of the complaint that a lis pendens was inappropriately filed. See, e.g., Lazzara v. Molins, 504 So. 2d 13 (Fla. 2d DCA 1987).
We need not reach this jurisdictional question in the present case, however, because we find no irremediable injury will accrue to petitioner by requiring it to answer the complaint. Should petitioner later prevail in the pending lawsuit, any harm resulting from the lis pendens will be compensable from the bond to be posted by respondents.
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Sparks v. The Charles Wayne Grp., 568 So. 2d 512 (Fla. 5th DCA 1990)…it court and remand this cause to the trial court for a determination of the amount of a reasonable bond to be required. WRIT ISSUED. DANIEL, C.W., Judge, Retired, concurs. COBB, J., dissents with opinion. . See also, Porter Homes, Inc. v. Soda, 540 So. 2d 195 (Fla. 2d DCA 1989); James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987). But see, Munilla v. Espinosa, 533 So. 2d 895 (Fla. 3d DCA 1988). . The language used in the contract in this cause is certainly in contrast with that required by section 501.137…
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Med. Facilities Dev., Inc. v. Little ARCH Creek Props., Inc., 656 So. 2d 1300 (Fla. 3d DCA 1995)…st, but then goes on to hold that irreparable harm existed, and remanded for an evidentia-ry hearing on the bond amount). The third and final approach to a lis pen-dens bond simply treats the bond as being mandatory. See Porter Homes, Inc. v. Soda, 540 So. 2d 195, 196 (Fla. 2d DCA 1989) (where a lis pendens is not founded upon a lawsuit involving a recorded instrument, section 48.23(3) “requires the posting of a bond.”); Machado v. Foreign Trade, Inc., 537 So. 2d 607, 607 n. 1 (Fla. 3d DCA 1988) (“The plaint…
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Stinnett v. Dodson, 575 So. 2d 1350 (Fla. 2d DCA 1991)…t. The petition for writ of certiorari is granted; the order discharging the lis pen-dens is quashed. SCHOONOVER, C.J., and FRANK and ALTENBERND, JJ., concur. . Certiorari is the proper vehicle to review such an order. Porter Homes, Inc. v. Soda, 540 So. 2d 195 (Fla. 2d DCA 1989); James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987); Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So. 2d 45 (Fla. 2d DCA 1984).…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Wood v. Winters Gov't Sec. Corp., 372 So. 2d 520 (Fla. 4th DCA 1979)
- Munilla v. Evelio S. Espinosa and Henry Betancourt, 533 So. 2d 895 (Fla. 3d DCA 1988)
- Florida Communities Hutchinson Island v. Arabia, 452 So. 2d 1131 (Fla. 4th DCA 1984)
- James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987)
- First Nat'l Bank OF Glencoe v. Am. Centennial Ins. Co., 504 So. 2d 13 (Fla. 4th DCA 1987)