ODALYS LICEA, AS TRUSTEE, APPELLANT,
v.
CARLOS ANLLO, AS TRUSTEE, APPELLEE
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Odalys Licea, as trustee, appealed an order requiring her to post a bond in connection with a notice of lis pendens in her specific performance action. The court reversed, holding that the trial court erred by setting the bond amount without conducting an evidentiary hearing as required by law.
The trial court erred by failing to conduct an evidentiary hearing. To obtain a lis pendens bond, the property holder must demonstrate through evidence that an unjustified notice will result in loss or damage and must quantify the likely damages. The bond amount must bear a reasonable relationship to the demonstrated damages.
[1] A property holder seeking a bond for a notice of lis pendens must demonstrate potential loss or damage if the notice is unjustified.
[2] The amount of a lis pendens bond must bear a reasonable relationship to the damages the property holder demonstrates will likely result from an unjustified notice.
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Join FLexlaw to unlock all legal intelligence“a property holder's right to a bond for a notice of lis pendens is conditioned upon her or his demonstration of a potential loss or damage she or he will likely incur if the notice of lis pendens is unjustified”
Establishes the foundational requirement that bond seekers must prove potential damages
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Join FLexlaw to unlock all legal intelligenceLicea filed suit for specific performance of a real estate sales contract and recorded a notice of lis pendens on the property. The seller, Carlos Anl…
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FLETCHER, Judge.
Odalys Licea, as trustee, appeals an order requiring her to post a bond in connection with a notice of lis pendens in her action for specific performance of a real estate sales contract. She alleges error in the trial court’s setting of the bond amount without an evidentiary hearing. We agree and reverse.
Licea brought suit for specific performance of a real estate sales contract and filed a notice of lis pendens on the property. Carlos Añilo, as trustee, the seller, respond ed with a motion to discharge the hs pendens or, alternatively, to require Lieea to post a bond for the continuation of the notice of lis pendens. The motion was set for hearing on the trial court’s motion calendar, over Licea’s objection that the matter required an evidentiary hearing.1 The trial court, without an evidentiary hearing, set the bond at $350,000. Lieea then posted the bond and filed this appeal.
First, a property holder’s right to a bond for a notice of lis pendens is conditioned upon her or his demonstration of a potential loss or damage she or he will likely incur if the notice of lis pendens is unjustified. Medical Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 675 So. 2d 915 (Fla.1996).
Second, the amount of the lis pendens bond, if any bond is found by the court to be needed, must bear a reasonable relationship to the amount of damages which the property holder demonstrates will likely result if it is later determined that the notice of lis pen-dens is unjustified. Id. at 918.
It is thus incumbent upon the property holder, in order to obtain a bond, to demonstrate to the court (1) that the notice of lis pendens, if unjustified, will likely result in loss or damage, and (2) the amount of damages which will likely result. Obviously the property holder, in order to demonstrate these matters to the court, will need to present evidence thereof, after which the proponent of the lis pendens is entitled to present evidence to the contrary. See Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977).
Here, the trial court failed to afford the parties the required evidentiary hearing on these issues. As a consequence, we reverse the order requiring the posting of a bond and remand with instructions to the trial court to hold the required evidentiary hearing.
Reversed and remanded.
. Motion calendars are not generally the appropriate time for evidentiary hearings. See Juliano v. Juliano, 687 So. 2d 910 (Fla. 3d DCA 1997).
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Citator
Cited By (11 total)
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Bankers Lending Servs., Inc. v. Regents Park Invs., LLC, 225 So. 3d 884 (Fla. 3d DCA 2017)…hand, we conclude that Bankers Lending had standing to move for a lis pendens bond and.to provide proof at an evidentiary .hearing of “potential loss or damage she or he will likely incur if the notice of lis pendens is unjustified.” Licea v. Anllo, 691 So. 2d 29, 30 (Fla. 3d DCA 1997); see also, Med. Facilities Dev., Inc., v. Little Arch Creek Props. Inc., 675 So. 2d 915, 917-18 (Fla. 1996) (“We agree with Judge Barkdull’s statement that the property-holder defendant’s right to a bond should be conditioned…
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Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., Inc., 833 So. 2d 211 (Fla. 3d DCA 2002)…DCA 2002). Before setting bond the court is to afford the parties an evidentiary hearing on the issues of whether the property holder would likely incur damage if notice of lis pendens was unjustified, and the amount of such damages. Licea v. Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997). The boiled-down issue here is whether Gladstone’s action is founded on a duly recorded instrument.1 Section 48.23, Florida Statutes (1999), which governs various matters surrounding notices of lis pendens, provides in subsection…
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Taylor v. Steckel, 944 So. 2d 494 (Fla. 3d DCA 2006)…ough the extension request was made a little more than one year following commencement of this action. However, we find (and Steckel concedes) that Taylor is entitled to a lis pendens bond hearing in accordance with our decision in Licea v. Arillo, 691 So. 2d 29 (Fla. 3d DCA 1997). See also Medical Facilities Dev., Inc., 675 So. 2d at 917 (confirming that “the protection which a notice of lis pendens affords is counterbalanced by the constraining effects the notice has on the property-holder defendant” and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Med. Facilities Dev., Inc. v. Little ARCH Creek Props., Inc., 675 So. 2d 915 (Fla. 1996)
- Juliano v. Juliano, 687 So. 2d 910 (Fla. 3d DCA 1997)
- Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977)