JAMES L. KIRK, II, EXECUTOR OF THE ESTATE OF JOSEPHINE THOMPSON, DECEASED, APPELLANT,
v.
STANLEY BAUMANN ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A notice of lis pendens cannot be filed without a prior court order if the action is not founded on a duly recorded instrument or mechanic's lien.
Appellant filed a notice of lis pendens to prevent alienation of stock during litigation. The trial court discharged the lis pendens.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Discharge Of Lis Pendens cases and more on FLexlaw
McNULTY, Chief Judge.
Appellant, seeking a declaratory judgment as to ownership of certain stock and injunctive relief, filed a notice of lis pen-dens pursuant to § 48.23, F.S.1975, in tending thereby to prevent alienation of the stock during the pendency of the action. On motion, the trial judge discharged the lis pendens and this interlocutory appeal ensued. We affirm.
The one point meriting discussion herein involves the trial court’s interpretation of § 48.23(3), F.S.197S. That section provides:
“(3) 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.’’ (Italics supplied.)
The trial court construed this section to mean that, in a situation such as here wherein the action is not founded on a duly recorded instrument or mechanic’s lien, a notice of lis pendens may not be filed absent a prior order of court. Appellant argues, on the other hand, that the section merely gives the court authority to discharge such lis pendens, upon good cause shown, after notice thereof has been filed. We agree with the trial court.
At common law, of course, a lis pendens operated only as against realty. Section 48.23, supra, contemplates that it may also operate as against personalty; but it was obviously the intent of the legislature in enacting paragraph (3) thereof to require that the same safeguards applicable to injunctions be observed. If it were otherwise, one could avoid the requirements' of notice, the posting of an adequate bond and the showing of irreparable harm as required for injunctions by Rule 1.610, RCP, merely by filing a notice of lis pendens. Neither public policy, the interests of justice nor, indeed, due process can tolerate such a result.
In view whereof the judgment appealed from should be, and it is hereby, affirmed.
BOARDMAN and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Cacaro v. Swan, 394 So. 2d 538 (Fla. 4th DCA 1981)…de applicable to a lis pendens. Our sister court has held that a notice of lis pendens such as the one involved here may not be filed without a prior court hearing consistent with all requirements for the issuance of an injunction. Kirk v. Baumann, 336 So. 2d 125 (Fla. 2d DCA 1976) and see the dissent in Musselwhite v. Raimey, 348 So. 2d 330 (Fla. 1st DCA 1977). For several reasons we do not so interpret the statute. First, a lis pendens is not an injunction nor is it the equivalent of an injunction. While…
-
Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA 1983)…So. 2d 438 (Fla. 3d DCA 1979), cert. den. 374 So. 2d 99 (Fla.1979); CAM Corp. of Broward v. Goldberger, 368 So. 2d 56 (Fla. 4th DCA 1979), cert. den. 378 So. 2d 343 (Fla.1979); Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977); Kirk v. Baumann, 336 So. 2d 125 (Fla. 2d DCA 1976). . See Fla.R.Civ.P. 1.130(a). See also Glusman v. Warren, 413 So. 2d 857 (Fla. 4th DCA 1982).…
-
Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982)…d instrument. The asserted right in this case arose from an unrecorded contract, so it was not so founded. ■ We turn to the impact of Section 48.23(3) upon a lis pendens when the action is not founded upon a recorded instrument. In Kirk v. Baumann, 336 So. 2d 125 (Fla. 2d DCA 1976), the Second District Court of Appeal held that a lis pendens could not be filed under these circumstances without a prior order of court. We think that the better view is that of Cacara v. Swan, 394 So. 2d 538 (Fla. 4th DCA 1981):…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence