Chiusolo v. Kennedy, 91-943

• Decision Date: 14 November 1991
• Docket Number: No. 91-943,91-943
• Citation: 589 So.2d 420
• Parties: Louis CHIUSOLO, Petitioner, v. William KENNEDY and Moira Kennedy, Respondents. 589 So.2d 420, 16 Fla. L. Week. D2866
• Court: Florida District Court of Appeals

Page 420

589 So.2d 420

Louis CHIUSOLO, Petitioner, v. William KENNEDY and Moira Kennedy, Respondents.

No. 91-943.

589 So.2d 420, 16 Fla. L. Week. D2866

District Court of Appeal of Florida,

Fifth District.

Nov. 14, 1991.

Leonard R. Ross, Daytona Beach, for petitioner.

Richard A. Manzo of Law Offices of Manzo & Praver, P.A., Titusville, for respondents.

EN BANC OPINION

COBB, Judge.

The petitioner, Louis Chiusolo, seeks certiorari review ¹ of a trial court order discharging his lis pendens filed in an action wherein the multi-count amended complaint sought, inter alia, to impose a resulting trust (Count V) and a constructive trust (Count VI) on certain described realty in Brevard County. The respondents, William and Moira Kennedy, moved to discharge the lis pendens and a hearing on that motion was held on April 29, 1991. At that time, the trial court reviewed the pleadings and, without taking evidence, determined that the allegations of the plaintiff's amended complaint did not show a sufficient connection to the real property in question to warrant a lis pendens and granted the motion for discharge.

Upon our review of the amended complaint, we find that the petitioner's allegations in Counts V and VI sufficiently showed a nexus with the real property in question so as to warrant an evidentiary hearing. Hence, the trial court procedurally departed from the essential requirements of law by its precipitous disposition of this issue without the taking of evidence. Other courts have held that, under these circumstances, an evidentiary hearing is a requisite entitlement of both parties. See, e.g., Feinstein v. Dolene, Inc., 455 So.2d 1126 (Fla. 4th DCA 1984); Andre Pirio Associates, Inc. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184 (Fla. 2d DCA 1984); Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982).

Although the pleading does allege a claim directly affecting the real property, it is clear from the pleadings that the plaintiff's action is not founded on a duly recorded instrument or on a mechanic's lien. Thus, the trial court may control and discharge the notice of lis pendens just as it can grant and dissolve injunctions. See Sec. 48.23(3), Fla.Stat. (1989). Where a party burdened by an injunction moves to dissolve the injunction, the proponent of the injunction has the burden of proof. Shea v. Central Diagnostic Services, Inc., 552 So.2d 344 (Fla. 5th DCA 1989). Similarly, in an action not based upon a recorded instrument or mechanic's lien, the proponent of the lis pendens has the burden of proof at the evidentiary hearing held on the motion to dissolve the lis pendens. See DeLisi v. Smith, 401 So.2d 925 (Fla. 2d DCA 1981); contra, Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA), rev. dismissed, 402 So.2d 608 (Fla.1981). At that hearing, the proponent of the lis pendens must show that his claim does affect the real property and that there is a substantial likelihood he will be successful on the merits. If this showing is made, he is entitled to the security of the lis pendens and it does not matter that he may have some other source of recovery. See Baghaffar v. Story, 515 So.2d 1373 (Fla. 5th DCA 1987). Our decision herein is in conflict with our prior holding in Sparks v. Charles Wayne Group, 568 So.2d 512 (Fla. 5th DCA 1990) that the burden of proof at the evidentiary hearing is on the party seeking dissolution of the lis pendens. Therefore, we herewith recede, en banc, from that opinion's holding on that issue. We also acknowledge and certify conflict with the contrary dictum in Cacaro.

Accordingly, the petition for certiorari is granted, the order discharging the lis pendens is quashed, and this cause is remanded for an evidentiary hearing pursuant to section 48.23(3), Florida Statutes (1989) and Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984).

ORDER QUASHED; CAUSE REMANDED.

GOSHORN, C.J., and DAUKSCH, COWART, HARRIS, PETERSON, GRIFFIN and DIAMANTIS, JJ., concur.

W. SHARP, J., concurs in part, dissents in part, with opinion.

W. SHARP, Judge, concurring in part, dissenting in part.

I concur with that portion of the opinion holding that the trial court departed from the essential requirements of law in not affording an evidentiary hearing. I respectfully dissent from that portion of the opinion receding from our prior holding in Sparks v. Charles Wayne Group, 568 So.2d 512 (Fla. 5th DCA 1990). The burden of proof at the evidentiary hearing is properly placed on the party moving for discharge of the lis pendens.

In both cases the party who filed a lis pendens established through pleadings (and affidavits in Sparks ) that their causes of action had close "connections" with the real property in question. In Sparks, the filing party was a vendee of real estate under a contract to buy, who had paid funds to the vendor, but who had no deed. The...