ACAPULCO CONSTRUCTION, INC., A FLORIDA CORPORATION, AND JOSE JAVIER MENDOZA, INDIVIDUALLY AND AS PRESIDENT OF ACAPULCO CONSTRUCTION, INC., APPELLANTS,
v.
REDAVO ESTATES, INC., A FLORIDA CORPORATION, AND STEVEN V. CAPPIELLO, APPELLEES
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Acapulco Construction and its president appealed the discharge of their notice of lis pendens on property subject to a lawsuit seeking to impose a constructive trust. The court reversed, holding that plaintiffs established a fair nexus between their equitable ownership claim and the disputed property, entitling them to maintain the lis pendens.
The court reversed the discharge of the lis pendens, holding that plaintiffs established a fair nexus between their apparent equitable ownership claim and the property dispute, thereby entitling them to file and maintain the notice of lis pendens. A lis pendens can be maintained against property by one with a viable equitable ownership claim, and plaintiffs need only show a good faith, viable claim rather than prove their case by a preponderance of the evidence.
[1] A petition for a writ of certiorari may be treated as an appeal from a non-final order dissolving an injunction.
[2] A notice of lis pendens is properly filed when the plaintiff establishes a fair nexus between the apparent legal or equitable ownership of the property and the dispute in…
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Join FLexlaw to unlock all legal intelligence“The plaintiffs seek in the lawsuit below, inter alia, to impose a constructive trust on the subject property, which suit is a good faith, viable claim calling into question the apparent legal or equitable ownership of the subject property.”
Establishes that plaintiffs' constructive trust claim is sufficiently viable to support a lis pendens without needing to prove the claim on the merits.
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Join FLexlaw to unlock all legal intelligenceAcapulco Construction and Jose Javier Mendoza filed a lawsuit against Redavo Estates and Steven V. Cappiello that sought, inter alia, to impose a cons…
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PER CURIAM.
This is a petition for a writ of certiorari filed by the plaintiffs Acapulco Construction, Inc. and Jose Javier Mendoza, seeking review of an order which granted the defendants Redavo Estates, Inc. and Steven V. Cappiello’s motion to discharge the plaintiffs’ notice of lis pendens. We treat this petition as an appeal from a non-final order dissolving an injunction under Fla.R.App.P. 9.130(a)(3)(B). Roger Homes Corp. v. Persant Constr. Co., 637 So. 2d 5, 5 n. 1 (Fla. 3d DCA 1994); Munilla v. Espinosa, 533 So. 2d 895, 895 n. 1 (Fla. 3d DCA 1988).
We reverse the order dissolving the plaintiffs’ notice of lis pendens based on a holding that the plaintiffs established below a fair nexus between (1) the apparent legal or equitable ownership of the property on which the notice of lis pendens was filed, and (2) the dispute embodied in the instant lawsuit, thereby entitling them to file the instant notice of lis pendens. We reach this result because any subsequent alienation. of the subject property or the imposition of intervening liens thereon could conceivably dis-serve the purposes for which the lis pendens exists. The plaintiffs seek in the lawsuit below, inter alia, to impose a constructive trust on the subject property, which suit is a good faith, viable claim calling into question the apparent legal or equitable ownership of the subject property. The twofold purpose of a lis pendens is (1) to protect subsequent purchasers or encumbrancers of the subject property from becoming embroiled in the pending dispute over the property, and (2) to protect the plaintiff from intervening liens that could impair any property rights claims and also from possible extinguishment of the plaintiffs unrecorded equitable claim. Given the instant lawsuit’s challenge to the legal or equitable ownership of the subject property, dissolving the lis pendens on the subject property could conceivably (1) jeopardize the rights of subsequent purchasers or encum-brancers by drawing them into the instant dispute, and (2) jeopardize the viability of the plaintiffs’ unrecorded equitable claim as against subsequent intervening liens on the property. This being so, it is clear that the lis pendens should not have been dissolved. Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993).
The central argument advanced by the defendants to avoid this result is that the plaintiffs failed to establish a viable constructive trust claim or any other claim against the subject property. We disagree. Clearly, it was not the plaintiffs’ burden to establish their constructive trust claim by the greater weight of the evidence, but only to establish a “fair nexus” between the apparent legal or equitable ownership of the subject property and the dispute involved in the instant lawsuit. This requires, we believe, an evidentiary showing of only a good faith, viable claim — which has been made, in our view, by the plaintiffs below. Nor do we agree with the argument, apparently accepted by the trial court, that the plaintiffs were not entitled to a lis pendens because they held no legal title to the subject property; clearly, a lis pendens can be maintained against property by one, who, as here, has a viable equitable ownership claim in the property. Chiu-solo.
The order discharging the plaintiffs’ lis pendens is reversed and the cause is remanded to the trial court with directions to reinstate the plaintiffs’ lis pendens on the property subject to the posting of a reasonable bond.
Reversed and remanded.
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Citator
Cited By (21 total)
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India Am. Trading Co., Inc. v. White, 896 So. 2d 859 (Fla. 3d DCA 2005)…suit.” Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla.1993); Martell v. Dubner, 885 So. 2d 469, 471 (Fla. 4th DCA 2004). A “fair nexus” requires a “good faith, viable claim.” Martell, 885 So. 2d at 471; Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So. 2d 182, 183 (Fla. 3d DCA 1994). The dispute embodied in this lawsuit stems from the alleged breach of an oral contract to purchase real property. “Pursuant to the statute [of frauds], no action can be brought to enforce a contract for the sale of land unl…
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Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232 (Fla. 5th DCA 2007)…perty subject to the lis pendens. Therefore, I would grant the writ and quash the order on review, and would also certify conflict with Bergmann v. Slater, 922 So. 2d 1110 (Fla. 4th DCA 2006), and Acapulco Construction, Inc. v. Redavo Estates, Inc., 645 So. 2d 182 (Fla. 3d DCA 1994). These cases add a test regarding viability of the underlying claim to the “fair nexus” analysis which simply does not exist in Chiusolo. Irrespective of arguments regarding the wisdom of Chiusolo, we are bound to follow its expre…1 / 2
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Sera Martell v. Dubner, 885 So. 2d 469 (Fla. 4th DCA 2004)…rve the purposes for which lis pendens exists. Where the answer is yes, fair nexus must be found.” Id. (footnote omitted). To establish a fair nexus requires a showing of a “good faith, viable claim.” Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So. 2d 182, 183 (Fla. 3d DCA 1994). A proponent is not required to actually prove its constructive trust claim at the motion to dissolve the lis pendens. See Von Mitschke-Collande v. Kramer, 869 So. 2d 1246, 1251 (Fla. 3d DCA 2004). Here, Martell not only all…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993)
- Munilla v. Evelio S. Espinosa and Henry Betancourt, 533 So. 2d 895 (Fla. 3d DCA 1988)
- Roger Homes Corp. v. Persant Constr. Co., 637 So. 2d 5 (Fla. 3d DCA 1994)