Commodore Plaza at Century 21 Condominium Ass'n, Inc. v. Century 21 Commodore Plaza Inc., s. 73--765

• Decision Date: 12 February 1974
• Docket Number: 73--835,Nos. 73--765,s. 73--765
• Citation: 290 So.2d 539
• Parties: COMMODORE PLAZA AT CENTUTY 21 CONDOMINIUM ASSOCIATION, INC., a Florida corporation, not for profit, Appellant, v. CENTURY 21 COMMODORE PLAZA INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 539

290 So.2d 539

COMMODORE PLAZA AT CENTUTY 21 CONDOMINIUM ASSOCIATION, INC., a Florida corporation, not for profit, Appellant, v. CENTURY 21 COMMODORE PLAZA INC., a Florida corporation, Appellee.

Nos. 73--765, 73--835.

District Court of Appeal of Florida, Third District.

Feb. 12, 1974.

Rehearing Denied March 6, 1974.

Joseph S. Paglino, North Miami Beach, for appellant.

Frates, Floyd, Pearson, Stewart, Proenza & Richman; Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee.

Before CARROLL, HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

We have consolidated two interlocutory appeals by the defendant condominium association from separate orders by the trial court, one granting plaintiff's motion to dissolve a notice of lis pendens and the other granting plaintiff's motion to sever the equitable issues from the legal issues. We affirm both orders.

This action results from a complaint filed by the plaintiff, the builder-developer of the condominium, seeking to declare an assessment levied by the association as illegal and void. In addition, plaintiff seeks temporary and permanent injunctive relief from liens filed in the public records by the association against certain units owned by plaintiff as a result of nonpayment of the disputed assessment. Plaintiff also seeks to have these liens dissolved and seeks over $500,000 in compensatory and punitive damages.

The trial court subsequently granted plaintiff a temporary injunction noting that irreparable harm might result if relief were not granted. The injunction enjoined defendant from placing any further liens upon units held by the plaintiff or from attempting to enforce or foreclose upon any liens already filed.

Thereafter, the plaintiff discovered that a notice of lis pendens had been filed by the defendant, and plaintiff moved the court to dissolve the notice. The court granted the motion. In so doing, the court also ordered that with respect to any of the liened units sold after the date of the court's order, the plaintiff would be required to place in escrow from the proceeds an amount equivalent to the lien upon the unit, or to post a bond acceptable to the court. This was intended to protect subsequent purchasers from the encumbrance created by the lien.

In our view, the court's action was consistent with the statutory authority accorded by Fla.Stat. § 48.23(3), F.S.A., ¹ to control and discharge the notice of lis pendens. The initial pleading demonstrates that this action is not 'founded on a duly recorded instrument,' i.e., the liens filed by defendant, but is based upon the validity of the assessment levied by the association. Moreover, the court's order provides for sufficient protection for prospective purchasers, a primary purpose for the notice of lis pendens. See 54 C.J.S. Lis Pendens § 22; 21 Fla.Jur. Lis Pendens § 3.

Turning to the trial judge's second order, granting plaintiff's motion to sever, we express the view that the appellant has not demonstrated an abuse of discretion by the court in severing the equitable issues for non-jury trial. See Florida R.C.P. 1.270(...