ADEENA WEISS ORTIZ, ETC., ET AL., PETITIONERS,
v.
CAROLINE WEISS, ET AL., RESPONDENTS

Fla. 3d DCA | 2017-08-30
No. 3D17-420
Before SUAREZ, FERNANDEZ, and SCALES, ,JJ.
227 So. 3d 689 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 5 cases

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Holding

The trial court did not depart from the essential requirements of law by requiring a bond for the lis pendens or discharging it upon failure to post the bond.


Headnotes

[1] A trial court has discretion to control and discharge a notice of lis pendens when the underlying suit is not based on a duly recorded instrument, but a fair nexus betwee…

[2] When a suit involving real property is not founded on a duly recorded instrument, a trial court may require the party seeking to maintain the lis pendens to post a bond t…

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Facts & Procedural History

Petitioner filed a quiet title suit and a notice of lis pendens. The trial court held an evidentiary hearing on respondent's motion to discharge the l…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Adeena Weiss Ortiz [“Ortiz”] files the present petition for certiorari requesting this Court quash the trial court’s order, below granting in part and denying in part- respondent Caroline Weiss’s [“Weiss”] motion to discharge lis pendens or for adequate bond. We deny the petition for certiorari, finding the trial court did not depart from the. essential requirements of law.

Petitioner Ortiz is the daughter of the respondent, Caroline Weiss. In 1973, Weiss and her husband Jack bought bay-front lots in Coconut Grove, numbered 0 through 7 [“the Property”] through their corporation, JAAC, Inc. That same year, JAAC executed a warranty deed granting the Property to Weiss and her husband as tenants by the entirety. In 1987, JAAC signed a warranty deed to Central Bank and Trust company, which in turn executed a land trust agreement deed to JAAC. Jack died in 1995; JAAC was administratively dissolved in 1997. Weiss subsequently issued a number of quitclaim deeds,, transfers, and corrective documents involving various lots comprising the Property. In 2014, Ortiz filed suit to quiet title to the Property, alleging fraudulent transfer of title based on the posb-1995 deed transfers, and filed a Notice of Lis Pendens. Ortiz argues that her suit to quiet title is, in fact, based on at least two duly recorded instruments that at the very least cloud the title sufficiently to maintain the lis. pendens on the Property.

The trial court conducted an evidentiary hearing on Weiss’s motion to dissolve lis *691pendens or for imposition of a bond. During the hearing, the trial court also took testimony on the amount of damages Weiss could suffer should the lis pendens remain in place and should it be determined that it was unjustified. The trial court denied the motion to discharge the lis pendens, but determined that the evidence showed a fair nexus between the legal and equitable ownership of the Property as claimed by Ortiz. The trial court then granted Weiss’s motion to set a bond in order for the lis pendens to remain, and placed a deadline on Ortiz’s ability to maintain the lis pendens by requiring her to post a $3,000,000.00 bond by a date certain, otherwise the lis pendens would be discharged. The trial court arrived at the bond amount based upon the evidence of the possible damages presented at the hearing. Ortiz failed to post the bond by the required date, and the trial court discharged the lis pendens. Ortiz immediately filed this petition for certiorari, and this Court stayed proceedings below.

We determine that the trial court did not depart from the essential requirements of the law by requiring a bond to be posted by a date certain or the lis pendens would be discharged. When a suit involving real property is, as in the present case, not based on a duly recorded instrument but there is a fair nexus proven, the control and discharge of the lis pendens is at the discretion of the trial judge. Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993); Rodriguez v. Banco Indus. de Venezuela, C.A., 576 So.2d 870, 873 (Fla. 3d DCA 1991) (“When an action is not founded on a duly recorded instrument, the statute gives the trial court discretion to consider the extension and duration of the lis pen-dens on a case-by-case basis.”);; Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000) (determining unless the initial pleading shows that the action is founded on a duly recorded instrument, the court has the power to control the notice by discharging it, or requiring the party seeking to file a lis pendens to post a bond).

In this case, the trial court properly exercised its discretion to order the bond and was correct in treating the requirement for the bond as it would the bond for a temporary injunction. Section 48.23(3), Fla. Stat. (2017) (“When the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed, 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 (“No temporary injunction shall be entered unless a bond is, given by the movant in an amount the court deems proper, ...”). Further, the trial court had the authority to order the discharge of the lis pendens should the bond not be timely posted.1 *692Because the issue is strictly whether the lis pendens should remain, there is no need for us to address the merits of the underlying dispute.

We deny the Petition for Certiorari, and lift the stay.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Adeena Weiss Ortiz v. Weiss, 282 So. 3d 949 (Fla. 3d DCA 2019)
    …nterests in JAAC were required to have been filed timely as claims against the Father’s Estate or as claims against the Mother (as personal representative) for her alleged failure or refusal to distribute shares to Ms. Ortiz. 3 See Ortiz v. Weiss, 227 So. 3d 689, 690 (Fla. 3d DCA 2017) (“In 1973, Weiss and her husband Jack bought bayfront lots in Coconut Grove, numbered 0 through 7 [“the Property”] through their corporation, JAAC, Inc.”). In that certiorari proceeding involving the same parties and circuit…
  • Weiss v. Adeena Weiss, 317 So. 3d 167 (Fla. 3d DCA 2021)
  • …the statute, we reverse. Background This is a heavily litigated intra-family dispute that traces its origin to the death of Weiss-Ortiz’s father, Jack Weiss, a prominent attorney. The parties are not strangers to the court. See Ortiz v. Weiss, 227 So. 3d 689 (Fla. 3d DCA 2017); Ortiz v. Weiss, 282 So. 3d 949 (Fla. 3d DCA 2019); Weiss v. Weiss, 317 So. 3d 167 (Fla. 3d DCA 2021). Weiss-Ortiz filed suit in the instant case against her mother, Caroline Weiss, along with the Estate of Jack Weiss and Towe…

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