JOSEPH A. DE MAPIA, AS TRUSTEE, AND 3550 LOAN CORP., A FLORIDA CORPORATION, APPELLANTS,
v.
EQUITABLE DEVELOPMENT CORP., A CORPORATION, ET AL., APPELLEES
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The trial court abused its discretion in discharging a lis pendens where the plaintiffs sought subrogation to a mortgagee's rights and foreclosure, as the subrogation claim was sufficiently related to the underlying mortgage to warrant maintaining the notice pending adjudication.
A trial court abuses its discretion by discharging a lis pendens when the plaintiff's subrogation claim to a mortgagee's rights is closely related to foreclosure and the right to subrogation remains a primary issue to be adjudicated.
[1] A lis pendens filed pursuant to Section 48.23, Florida Statutes, should not be discharged when the plaintiff's subrogation claim to a mortgagee's rights is closely relate…
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Join FLexlaw to unlock all legal intelligenceAppellants sought to be subrogated to the rights of Joseph Burnett, a mortgagee, and to foreclose a mortgage between Burnett and Equitable Development…
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McCORD, Judge.
Appellants (plaintiffs below) take this interlocutory appeal from an order of the trial judge discharging a lis pendens on the motion therefor of Equitable Development Corporation, appellee (one of the defendants below). The notice of lis pendens was filed pursuant to Section 48.23, Florida Statutes. Subsection (3) of that statute provides as follows:
“When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”
By the action sub judice, appellants contend they are entitled to be subrogated to the rights of Joseph Burnett, mortgagee, and are seeking foreclosure of the mortgage between said mortgagee and Equitable Development Corporation, mortgagor. While this is not a direct foreclosure of a mortgage, it is closely related thereto. The question of whether or not appellants are entitled to be subrogated is one of the primary issues in this suit. Under the alleged facts, the order of the trial court discharging the lis pendens was an abuse of discretion. Appellants are entitled to have the lis pendens remain in full force and effect until appellants’ right to subrogation can be adjudicated.
Reversed and remanded with directions to vacate the order discharging the lis pen-dens.
SPECTOR, Acting C. J., concurs.
BOYER, J., dissents.
BOYER, Judge
(dissents).
Appellants, who are the plaintiffs below, have taken an Interlocutory Appeal from an order entered by the Circuit Judge discharging a lis pendens on the motion of Equitable Development Corp., one of the defendants below, and appellee here.
Authority for the filing of a notice of lis pendens is found in Florida Statute 48.23. Subsection (3) of that statute provides as follows:
“When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”
The initial pleading filed in the case sub judice does not show that the action is founded on a duly recorded instrument nor upon a mechanic’s lien. Accordingly, in my opinion, the Circuit Judge was authorized by the statute to discharge the notice of lis pendens “as the court may grant and dissolve injunctions”, which simply means in his discretion. The record before us does not demonstrate that the trial judge abused his discretion, therefore I am of the view that this Interlocutory Appeal should be dismissed.
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Gordon v. Barley, 383 So. 2d 322 (Fla. 5th DCA 1980)…orders under 9.130(a), case law holds that orders dissolving a notice of lis pendens were reviewable as interlocutory appeals under former Rule 4.2. See Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977); De Mapia v. Equitable Development Corp., 302 So. 2d 418 (Fla. 1st DCA 1974); Appellant points to the Committee Notes to Rule 9.130 which state: Allowable interlocutory appeals from orders in actions formerly cognizable as civil actions are specified, and are essentially the same as under former Rule 4.2…
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Fencl v. Nat Weaver, 670 So. 2d 1188 (Fla. 5th DCA 1996)…aling — against the current owner of the property. The fact that there was not an arm’s length transaction in the present case distinguishes this case from Lennar. A closer issue was presented to the court in DeMapie v. Equitable Development Corp., 302 So. 2d 418 (Fla. 1st DCA 1974), in which the trust claimed a subrogation interest in a mortgage so that it could foreclose on the mortgagee. Even though the trust’s claim was not founded on a written instrument (it was founded on the equitable principle of sub…