ANGEL DOMINGUEZ, APPELLANT,
v.
JACK LOPEZ ET AL., APPELLEES
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Angel Dominguez appealed the trial court's order discharging a lis pendens he filed in a partnership dissolution and accounting action. The Third District reversed because Dominguez was denied the opportunity to present evidence in opposition to the discharge motion, a procedural right guaranteed when lis pendens are treated like injunctions under Florida law.
The order discharging the lis pendens is reversed and remanded because Dominguez was denied procedural due process. When a lis pendens is treated like an injunction under Florida law (when not based on a duly recorded instrument or mechanic's lien), Florida Rules of Civil Procedure 1.610 applies, requiring that either party be given the opportunity to present evidence at a hearing on a motion to dissolve.
[1] A trial court may control and discharge a notice of lis pendens when the initial pleading does not demonstrate that the action is founded on a duly recorded instrument or…
[2] A party seeking to oppose a motion to dissolve a notice of lis pendens must be given an opportunity to present evidence.
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Join FLexlaw to unlock all legal intelligence“Where, as here, the initial pleading does not show the action is based on a duly recorded instrument or mechanic's lien, the court may control and discharge the notice of lis pendens as the court may grant or dissolve injunctions.”
Establishes that lis pendens are governed by injunction rules when not based on duly recorded instruments or mechanic's liens
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Join FLexlaw to unlock all legal intelligenceDominguez alleged he formed a partnership with Lopez to purchase and develop real estate, contributing substantial funds. Dominguez claimed Lopez dive…
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PER CURIAM.
Angel Dominguez appeals an order discharging lis pendens in an action seeking dissolution of a partnership and an accounting.
Angel Dominguez filed a complaint for an accounting and dissolution of his partnership with Jack Lopez, appellee herein. Dominguez alleged that the partnership was formed for the purpose of purchasing and developing certain parcels of real estate and that he contributed substantial sums of money to the partnership. The gravamen of the complaint is that Lopez who formed the corporate defendants Happy Realty, Inc. and Sagitario Construction, Inc. diverted partnership funds into these corporations without according Dominguez his equitable right to 50% ownership therein and, further, acquired and developed certain described parcels of property in his own name or the names of these corporations with partnership funds thereby defrauding Dominguez. Dominguez filed a notice of lis pendens on the described real estate and Lopez filed a motion to discharge the lis pendens. This motion was heard without the benefit of argument of Dominguez’s counsel who did not appear.1 The trial court then entered an order discharging lis pendens on the ground that Dominguez’s initial pleading does not show that the action is founded on a duly recorded instrument or mechanic’s lien as required by Florida law. Dominguez’s counsel filed a petition for rehearing. After hearing on the petition, the trial court denied the petition and left standing the order discharging lis pendens. We reverse.
Where, as here, the initial pleading does not show the action is based on a duly recorded instrument or mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant or dissolve injunctions. Section 48.23(3), Florida Statutes (1975).2
With respect to injunctions, Fla.R.Civ.P. 1.610 provides in pertinent part: “(c) Motion to Dissolve. Any party against whom an injunction has been granted may move to dissolve it at any time.
“(d) Evidence. Either party may present evidence at any hearing on an application for or motion to dissolve an injunction. On hearing the court may grant, dissolve or continue the injunction or may require bond.”
Dominguez was not given the opportunity to present evidence in opposition to the motion to dissolve the notice of lis pendens. Accordingly, the order discharging notice of lis pendens is reversed and the cause remanded to the trial court with directions to grant Dominguez the opportunity to present any evidence which he deems necessary in opposition to the motion to discharge notice of lis pendens.
Reversed and remanded.
. He alleged he did not receive the notice of hearing.
. “(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.”
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Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA 1983)…2d 608 (Fla.1981); Sunrise Point, Inc. v. Foss, 373 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).…
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Gordon v. Barley, 383 So. 2d 322 (Fla. 5th DCA 1980)…o reported cases under the revised appellate rules discussing appeal of such 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…
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Licea v. Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997)…y result. Obviously the property holder, in order to demonstrate these matters to the court, will need to present evidence thereof, after which the proponent of the lis pendens is entitled to present evidence to the contrary. See Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3d DCA 1977). Here, the trial court failed to afford the parties the required evidentiary hearing on these issues. As a consequence, we reverse the order requiring the posting of a bond and remand with instructions to the trial court to hold t…
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