Baghaffar v. Story, 87-1411
| Decision Date | 03 December 1987 |
| Docket Number | No. 87-1411,87-1411 |
| Parties | 12 Fla. L. Weekly 2741 Hamid A. BAGHAFFAR, Gesson N.V., a Netherlands Antilles corporation, and Reanco Corporation, a Florida corporation, Petitioners, v. Bobby E. STORY, Adnan Al-Saleh, and Lake Pleasant Corporation, a Florida corporation, Respondents. |
| Court | Florida District Court of Appeals |
Carl W. Hartley, Jr., and Richard F. Wall, of Hartley & Wall, Orlando, for petitioners.
Douglas C. Spears, of Smathers, Pleus, Adams, Fassett & Divine, P.A., Orlando, for respondents.
This cause is before the court on a petition for writ of certiorari to review an order dissolving a lis pendens recorded by petitioners when they instituted a suit to enforce the terms of a settlement agreement entered pursuant to a prior litigation. Such an order is properly reviewable by certiorari. 1
The settlement agreement which is the basis of petitioner's complaint below provided that respondents transfer property with an appraised value of 2.5 million dollars to petitioners. If a dispute arose between the parties as to the value of the transferred property, an arbitrator would determine whether a deficiency existed. If a deficiency was established, the agreement provided that respondents, at their option, could satisfy the deficiency either by transferring additional property to petitioners or by paying the deficiency in cash. A dispute did, in fact, arise as to the value of the property transferred and the court-appointed arbitrator found that there was a deficiency.
Respondents argue that because the terms of the agreement gave them the option to pay any deficiency in cash, the action to enforce the settlement agreement does not directly affect the realty burdened by the lis pendens, and therefore it was properly dissolved by the trial court. 2 However, a review of the entire settlement agreement in this case establishes that the clear intent of the parties was to dedicate or pledge the property in question to satisfy the amount due to petitioners. 3 Furthermore, the fact that respondents could satisfy their obligation to petitioners by paying cash does not defeat petitioners' right to the security of a lis pendens any more than the fact that a property owner could satisfy a mortgage or mechanic's lien in cash would mean that the mortgagee or lienholder was not entitled to a lis pendens.
Since the complaint filed by petitioners states a valid cause of action affecting the property in question, the trial court should have continued the lis pendens conditioned upon the filing of a bond by petitioners in an amount sufficient to protect respondents against any damages resulting from its wrongful continuance. 4 The discharge of the lis pendens under these circumstances was a departure from the essential requirements of law, and therefore the petition for writ of certiorari is granted. The order of the circuit court is quashed and the case remanded for a determination as to the amount of a reasonable bond to be required.
WRIT ISSUED.
1 See, e.g., Kent v. Kent, 431 So.2d 279 (Fla. 5th DCA 1983); Finney v. Wonder Development Corp., 392 So.2d 583 (Fla. 5th DCA 1981).
2 When a complaint does not support a direct claim against property which is burdened by a lis pendens,...
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...court of appeal lacks certiorari jurisdiction to review the order discharging the lis pendens. We are bound by Baghaffar v. Story, 515 So.2d 1373 (Fla. 5th DCA 1987) which holds otherwise. 1 If the record established that the petitioners had grounds to assert an equitable lien against real ......
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...1017 (Fla. 2d DCA 2006); Eurohome DI Soleil, LLC v. Oaks Group, Inc., 912 So.2d 1271, 1272 (Fla. 4th DCA 2005); Baghaffar v. Story, 515 So.2d 1373, 1373 (Fla. 5th DCA 1987); Hough v. Bailey, 421 So.2d 708, 708 (Fla. 1st DCA 1982). However, each of these cases involved orders solely discharg......
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...tribunals. Certiorari is the appropriate vehicle to review an interlocutory order discharging a lis pendens.1 Baghaffar v. Story, 515 So.2d 1373, 1373 n. 1 (Fla. 5th DCA 1987) ; see also Loidl v. I & E Grp., Inc., 927 So.2d 1016, 1017 (Fla. 2d DCA 2006) ; Eurohome DI Soleil, LLC v. Oaks Grp......
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Loidl v. I & E Group, Inc., 2D05-3984.
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