Chiusolo v. Kennedy
| Citation | 614 So.2d 491 |
| Decision Date | 25 February 1993 |
| Docket Number | No. 79103,79103 |
| Court | United States State Supreme Court of Florida |
| Parties | 18 Fla. L. Week. S130 Louis CHIUSOLO, Petitioner, v. William KENNEDY, Respondent. |
Leonard R. Ross and George D.E. Burden, Daytona Beach, for petitioner.
Richard A. Manzo of the Law Offices of Manzo & Praver, P.A., Titusville, for respondents.
We have for review Chiusolo v. Kennedy, 589 So.2d 420 (Fla. 5th DCA1991), which certified conflict with Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA), review dismissed, 402 So.2d 608 (Fla.1981). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const.
Petitioner Louis Chiusolo filed a lis pendens in connection with his lawsuit seeking to impose a resulting and constructive trust on certain real property in which he claimed an interest. The gist of the complaint in the suit was that Chiusolo had advanced funds ultimately used to purchase the property and in return was to receive stock in the corporation that actually owned the property. He alleged the stock was never given him. The trial court discharged the lis pendens, and Chiusolo appealed.
The en banc Fifth District reversed and in doing so receded from its own precedent in Sparks v. Charles Wayne Group, 568 So.2d 512 (Fla. 5th DCA1990). The Fifth District held that the proponent of the lis pendens bears the burden of showing that the claim affects the real property in question and that there is a substantial likelihood of success on the merits. Id. at 421.
One of several purposes underlying the doctrine of lis pendens is that, when a suit is filed that could affect title in property, some notice should be given to future purchasers or encumbrancers of that property. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925). This serves the purposes of protecting those purchasers or encumbrancers from becoming embroiled in the dispute, 1 and of protecting the plaintiff from intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiff's unrecorded equitable lien. In sum, unlike a typical injunction, a lis pendens exists as much to warn third parties as to protect the plaintiff; and the procedural requirements associated with lis pendens should advance both of these important purposes.
Thus, we believe that the lis pendens cannot be dissolved if, in the evidentiary hearing on request for discharge, the proponent can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. 2 To this end, the trial court need not determine whether there is any likelihood the property will be alienated or subjected to intervening liens during the pendency of the cause. The relevant question is whether alienation of the property or the imposition of intervening liens, if either actually occurred, conceivably could disserve the purposes for which lis pendens exists. 3 Where the answer is yes, fair nexus must be found.
Based on the policy outlined above, we do not agree that any greater proof is required of the proponent. We agree with the observation in Sparks, 568 So.2d at 517, that the statutory reference to injunctions 4 exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond where needed to protect the former from irreparable harm. The bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties.
We approve in part and quash in part the opinion below. We disapprove Cacaro to the extent it conflicts with our views here. This cause is remanded for further proceedings in conformity with this opinion.
It is so ordered.
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