Cacaro v. Swan, 80-1055
| Decision Date | 25 February 1981 |
| Docket Number | No. 80-1055,80-1055 |
| Citation | 394 So.2d 538 |
| Parties | Arthur CACARO, Petitioner, v. Leslie L. SWAN and Christine F. Swan, his wife, Respondents. |
| Court | Florida District Court of Appeals |
Thomas A. Bell of Reynolds & Marchbanks, Boca Raton, for petitioner.
Edward Oddo, Jr., Pompano Beach, for respondents.
The petitioner, Cacaro, seeks review, by petition for a common law writ of certiorari, of an order of the Circuit Court denying dissolution of a notice of lis pendens filed by respondents, Mr. and Mrs. Swan.
Respondents, after executing and delivering to petitioner a "Condominium Deposit and Receipt Contract" which is, in essence, a purchase and sale agreement for certain real property, filed suit seeking specific performance of that agreement. Respondents allege in their complaint that they were damaged by the delay resulting from petitioner's refusal to close and perform, thereby incurring lost rents and profits as well as increased bank interest rates and loss of bargain. Respondents also recorded the notice of lis pendens which petitioner subsequently moved to discharge in accordance with Section 48.23, Florida Statutes (1979).
The trial court, after hearing, denied both the motion to discharge the Lis Pendens and a motion to dismiss Counts I, II and III of the complaint.
The respondents' cause of action was not based upon either a mechanic's lien or a recorded instrument, but rather upon an unrecorded contract to convey real property. Accordingly, the lis pendens comes within the purview of Section 48.23(3), Florida Statutes (1979) which states:
(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.
This enactment by the legislature, in practical effect, was to ensure that the safeguards applicable to injunctions, such as notice, the posting of an adequate bond, and the showing of irreparable harm, may be made 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 it may constrain alienability by virtue of constituting notice of the claim asserted in the litigation it does not prohibit alienation. It is a matter of notice and indirectly, of jurisdiction over the property described in the notice. It prevents enforcement against the property of liens unrecorded as of the date of filing of the notice. If hearing is a prerequisite then unrecorded liens may well become recorded liens between the time of filing of the complaint and the recording of a...
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Procacci v. Zacco
...simply a notice of pending litigation." Beefy King International, Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir. 1972); Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981). Lis pendens "is notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would nec......
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Kent v. Kent
...(Fla. 4th DCA 1981), pet. dism'd 413 So.2d 876 (Fla.1982); Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981); Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981) pet. dism'd 402 So.2d 608 (Fla.1981); Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA 1979), cert. den. 374 So.2d 99 ......
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Sparks v. Charles Wayne Group
...the notice of lis pendens is inappropriate under the circumstances and for the cause of action alleged in the complaint. Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA), rev. dismissed, 402 So.2d 608 (Fla.1981). Respondents have made no attempt to do so here. The dissent argues that the burden......
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Wiggins v. Dojcsan, 81-533
...founded on a recorded instrument or mechanic's lien. At least one other district court has reached the opposite result. Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981). We are persuaded by the logic expressed in Cacaro that a notice of lis pendens has only indirect effect on the alienabil......