NOBE BAY HOLDINGS, LLC, PETITIONER,
v.
LAZARO MIGUEL GARCIA, M.D., RESPONDENT

Fla. 3d DCA | 2014-06-11
No. 3D13-3160
Before ROTHENBERG, FERNANDEZ and SCALES.
140 So. 3d 693 Florida District Court of Appeal, Third District (2014) Positive Treatment
Cited by 4 cases

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Holding

The court held that the trial court erred in denying the motion to dissolve the lis pendens and in requiring a bond, as the plaintiff failed to establish a nexus between the lawsuit and the property.


Headnotes

[1] A party seeking to maintain a lis pendens must establish a fair nexus between the property and the lawsuit.

[2] A lis pendens should be dissolved when the claimant fails to establish a fair nexus between the property and the lawsuit.

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Facts & Procedural History

Garcia contracted to purchase condominium units, deposited funds, and later entered into agreements to transfer those funds to a new developer for a d…

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Opinion of the Court
FERNANDEZ, J.

FERNANDEZ, J.

Nobe Bay Holdings, LLC petitions this Court for a writ of certiorari to quash the trial court’s order denying Nobe Bay’s “Amended Motion to Dissolve Improper Lis Pendens.” We grant Nobe Bay’s petition for writ of certiorari and quash the trial court’s order.1 We direct the trial court to discharge the lis pendens, as well as the bond that the court ordered Nobe Bay to post.

Garcia contracted with Merco Group for the purchase of two condominium units. Pursuant to the contract, Garcia deposited $257,600 into an escrow account. Later that year, the escrow agent transferred $128,800 to Merco for the construction of the condominiums.

Garcia subsequently formed two new contracts. One of the contracts was a Conditional Cancellation Agreement. In that agreement, Garcia and Merco agreed to cancel the purchase agreements for the original two condominium units. Garcia and Merco also agreed to transfer the remaining $128,800 in the escrow account to a new contract with a related developer, Indian Creek Holdings, Inc.

The other contract was a Purchase Agreement with Indian Creek for Unit 1402 of the Nobe Bay Condominium, which the parties never recorded. The Purchase Agreement required an additional deposit of $56,200 on top of the transferred $128,800. Garcia never paid the additional $56,200. Regions Bank thereafter initiated foreclosure proceedings against Indian Creek and obtained a final judgment in 2010. Nobe Bay obtained Unit 1402.

Garcia filed an amended complaint against Nobe Bay seeking counts of, inter alia, specific performance, breach of contract and an equitable lien. Garcia later agreed to limit his complaint to a claim for money damages and dropped his claim for specific performance. He obtained a lis pendens on Unit 1402.

*695Nobe Bay, by motion, asked the court to dissolve the lien. The court denied Nobe Bay’s motion, and allowed the removal of the lis pendens upon Nobe Bay posting a bond in the amount of Garcia’s security deposit.

Nobe Bay timely filed a petition for writ of certiorari. We have jurisdiction. Fla. R. App. P. 9.030(b)(2)(A); Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So.2d 758, 759 n. 1 (Fla. 3d DCA 2007) (stating that “an order denying a motion to discharge a lis pendens is renewable by certiorari.”).

The proponent of the lis pendens has the burden of showing that the claim affects the real property in question. Medical Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 675 So.2d 915, 916 (Fla.1996); Chiusolo v. Kennedy, 614 So.2d 491, 492 n. 2 (Fla.1993). The proponent must establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. Medical Facilities, 675 So.2d at 917; Chiusolo, 614 So.2d at 492. If the proponent can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit, a lis pendens cannot be dissolved. Chiusolo, 614 So.2d at 492. If the proponent of the lis pendens does establish a fair nexus, the trial court, within its discretion, can require the lis pendens proponent to post a bond to protect the property owner. Medical Facilities, 675 So.2d at 917.

The lis pendens should have been dissolved because Garcia failed to establish a fair nexus between title to the property and the lawsuit. The only existing document is the Purchase Agreement between Garcia and Indian Creek for Unit 1402 of the Node Bay Condominium. The Purchase Agreement is not a duly recorded instrument and was properly terminated when Indian Creek refunded Garcia his initial deposit of $128,800 and Garcia failed to make the second deposit. Garcia thus does not have a claim to Unit 1402.

Furthermore, Garcia agreed to limit his complaint to a claim for money damages and dropped his claim for specific performance. Without the claim for specific performance, Nobe Bay correctly argues that Garcia destroyed any possible nexus between ownership of the property and the amended complaint.

In addition, the Purchase Agreement confirms that Garcia has no direct claim against the subject property. Paragraph 31 of the Purchase Agreement states: “[n]either this Agreement, Nor Purchaser’s payment of deposits, will give Purchaser any lien or claim against the Unit of the Condominium.”

We further conclude that the trial court should not have required Nobe Bay to post a bond. As the Florida Supreme Court held in Medical Facilities, “in situations governed by section 48.23(3), [Fla. Stat.], it is within the trial court’s discretion to determine whether to require the lis-pendens proponent to post a bond ...” Medical Facilities, 675 So.2d at 916 (emphasis added). Nobe Bay presented evidence that the lis pendens prevents a closing on Unit 1402 pursuant to a sales contract with a third-party. Accordingly, the trial court departed from the essential requirements of law when it required Nobe Bay to post bond.

Therefore, we quash the trial court’s order, and direct the trial court to discharge the lis pendens and the bond that the court ordered Nobe Bay to post.

Petition granted; order quashed.


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Citator

Cited By

  • Regents Park Invs., LLC v. Bankers Lending Servs., Inc., 197 So. 3d 617 (Fla. 3d DCA 2016)
    …be maintained. Under the Florida cases a lis pendens is proper only when the required relief might specifically affect the property in question, [internal citations and quotations omitted]. Id. at 38-39. See also, Nobe Bay Holdings, LLC v. Garcia, 140 So. 3d 693 (Fla. 3d DCA 2014) (holding the claim was unprovable because the plaintiff had agreed to limit his claim to money damages); India America Trading Co. v. White, 896 So. 2d 859 (Fla. 3d DCA 2005) (finding claim for specific performance was unprovable…
  • Adeena Weiss Ortiz v. Weiss, 227 So. 3d 689 (Fla. 3d DCA 2017)
    …, under part I of chapter 713 or when the action no longer affects the subject property, the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.”); Nobe Bay Holdings, LLC v. Garcia, 140 So. 3d 693, 695 (Fla. 3d DCA 2014) (holding that if the proponent of the lis pendens does establish a fair nexus, the trial court, within its discretion, can require the lis pendens proponent to post a bond to protect the property owner); Fla. R. Civ. P. 1.610…

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