JOGE INVESTMENTS, INC. F/K/A JOGE INVESTMENTS, N.V., A NETHERLANDS ANTILLES CORPORATION AND ALINA INVESTMENTS, INC. F/K/A ALINA INVESTMENTS, N.V., A NETHERLANDS ANTILLES CORPORATION, PETITIONERS,
v.
MILLENNIUM CAPITAL, PALMETTO GARDENS, LLC, A MARYLAND LIMITED LIABILITY COMPANY AND MARCUS & MILLICHAP, INCORPORATED OF FLORIDA, RESPONDENTS
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Joge Investments and Alina Investments sought review of a lower court's denial of their motion to discharge a lis pendens filed by Millennium Capital and Palmetto Gardens. The Florida Third District Court of Appeal granted the petition for certiorari and reversed, finding the notice of lis pendens fatally defective for failing to comply with statutory requirements under Florida Statutes § 48.23(1)(a).
The court held that the notice of lis pendens was fatally defective because it did not comply with statutory requirements: it lacked the time of institution of the action and failed to make a proper statement of relief sought. The lower court erred in denying the motion to discharge, and the notice must be discharged.
[1] A notice of lis pendens is fatally defective if it fails to contain the names of the parties, the time of institution of the action, the name of the court in which it is…
[2] A lis pendens serves as notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would necessarily put a purchaser on inquiry, incl…
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Join FLexlaw to unlock all legal intelligence“Section 48.23(l)(a), Florida Statutes (1997), requires that a notice of lis pendens contain "the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property."”
Establishes the statutory requirements for a valid lis pendens notice that the respondents' notice failed to meet.
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Join FLexlaw to unlock all legal intelligencePalmetto Gardens and Millennium Capital filed a complaint against Joge Investments, Alina Investments, and Marcus & Millichap, alleging breach of impl…
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PER CURIAM.
The petitioners, Joge Investments, Inc. (“Joge”) and Alina Investments (“Alina”) are seeking review of an order denying their motion to discharge a lis pendens. For the reasons below, we grant the petition for certiorari, and reverse.
The respondents, Southern Palmetto Gardens (“Palmetto Gardens”), and Millennium Capital, filed a complaint against Joge, Alina, and Marcus & Millichap, alleging; Count I, breach of implied contract; Count II, tortious interference; Count III, acting in concert; Count IV, tortious interference; and Count V, specific performance of a unilateral contract. Count V alleged that a oral unilateral contract was entered into between Palmetto Gardens and Joge and Alina, whereby Palmetto Gardens placed a $50,000 deposit in escrow and signed a purchase and sale agreement to purchase the property. The agreement in question was sent to Joge and Alina with a letter from Palmetto Gardens’ attorney which stated: “the Purchaser’s offer to purchase the Property will expire on Monday, April 27,1998.”
The respondents filed and recorded a notice of lis pendens against the property. The petitioners filed a motion to discharge the lis pendens; this motion was denied and no bond was set. No evidentiary hearing was held on the issue of bond.
Section 48.23(l)(a), Florida Statutes (1997), requires that a notice of lis pendens contain “the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property.” See also Dunn v. Stack, 394 So. 2d 1076, 1077 (Fla. 1st DCA 1981). The notice in this case does not contain the time of institution of the action and does not make a proper statement of relief sought. It refers to specific performance of a contract, attached as Exhibit A of the complaint; however, Exhibit A of the complaint is merely a description of the real estate. “The general rule is that lis pendens is notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would necessarily put the purchaser on inquiry and of the contents of exhibits filed and proved if they are pertinent to the matter in issue or the relief sought.” DePass v. Chitty, 90 Fla. 77, 105 So. 148, 150 (1925). Because the Respondents failed to comply with the statute, the notice is fatally defective and the lower court erred in failing to grant the motion for discharge.
Therefore, we grant the petition for writ of certiorari and reverse the denial of the motion to discharge the lis pendens. We note that if the Respondents properly refile the notice, an evidentiary hearing on the issue of bond must be afforded. See Licea v. Anllo, 691 So. 2d 29, 30 (Fla. 3d DCA 1997); see also O’Neill v. Linares, 705 So. 2d 699, 699 (Fla. 3d DCA 1998); Feinstein v. Dolene, Inc., 455 So. 2d 1126, 1128 (Fla. 4th DCA 1984).
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OZ v. Countrywide Home Loans, Inc., 953 So. 2d 619 (Fla. 3d DCA 2007)…scription of the property involved or to be affected, and a statement of the relief sought as to the property. (emphasis added). Consistent with the statutory requirements of section 48.23, this Court held in Joge Invs., Inc. v. Millennium Capital, 724 So. 2d 728, 729 (Fla. 3d DCA 1999), that a valid lis pendens must contain the time of institution of the action. If a plaintiff fails to include all of the required items in the lis pendens, the lis pendens is ineffective. See DeGuzman v. Balsini 930 So. 2d 75…
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Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So. 2d 758 (Fla. 3d DCA 2007)…take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion. . An order denying a motion to discharge a lis pendens is reviewable by certiorari. See Joge Invs., Inc. v. Millennium Capital, 724 So. 2d 728 (Fla. 3d DCA 1999)(reviewing order denying a motion to discharge a lis pen-dens); Lake Placid Holding Co. v. Paparone, 414 So. 2d 564 (Fla. 2d DCA 1982).…
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Tampa BAY 1, L.L.C. v. Lorello Cypress Fam. Ltd. P'ship, 821 So. 2d 434 (Fla. 2d DCA 2002)…as facially insufficient because the notice did not contain the time of institution of the action and did not make a proper- statement of the relief sought. The trial court cited the Third District case, Joge Investments, Inc. v. Millennium Capital, 724 So. 2d 728 (Fla. 3d DCA 1999), in support of its ruling. Section 48.23(l)(a) requires that a notice of lis pendens contain “the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the pro…
Authorities Cited
- DePass v. Chitty, 90 Fla. 77 (Fla. 1925)
- Feinstein v. Dolene, Inc., 455 So. 2d 1126 (Fla. 4th DCA 1984)
- Licea v. Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997)
- Dunn v. Stack, 394 So. 2d 1076 (Fla. 1st DCA 1981)
- O'Neill v. Linares, 705 So. 2d 699 (Fla. 3d DCA 1998)
- Carana Corp. v. Sittenfeld, 705 So. 2d 699 (Fla. 3d DCA 1998)