Deguzman v. Balsini, 5D06-393.
| Decision Date | 05 May 2006 |
| Docket Number | No. 5D06-393.,5D06-393. |
| Citation | 930 So.2d 752 |
| Parties | Guillermo F. DEGUZMAN, Petitioner, v. Edda Serrano BALSINI, Respondent. |
| Court | Florida District Court of Appeals |
Domenick Leo, Fern Park, for Petitioner.
Clifton H. Gorenflo of Clifton H. Gorenflo, P.A., Sanford, for Respondent.
DeGuzman seeks a writ of certiorari to quash a circuit court order that directed the reinstatement of a lis pendens, which was filed against his real property by Balsini, his former wife, if he was unable to post a $20,000.00 bond. We grant the writ.
Balsini filed a notice of lis pendens on DeGuzman's real property located at 910 Vineland Place, Lake Mary, Florida, on September 23, 2005. It was apparently related to a contempt/enforcement action filed by Balsini to recover child support and other financial payments owed her for the parties' children. However, the property was not marital property and it was not included in the settlement agreement entered into by the parties during their dissolution proceedings. The property at 910 Vineland Place is located in Seminole County and is titled in DeGuzman's sole name. It was purchased by him after the parties' dissolution was final and used by him for visitation with his children. The children live in Seminole County, Florida, and DeGuzman lives in Puerto Rico.
On January 20, 2006, the circuit court dissolved the lis pendens, finding it was devoid of merit and frivolous. On the same day, Balsini filed a motion to set aside that order. On January 24, 2006, the court modified its order by requiring DeGuzman to post a $20,000.00 bond by January 25, 2006, and if he failed to do so, the lis pendens would be reinstated. The petition for certiorari relates to this order.
We find that the order is improper. Unless an initial pleading shows that an action is founded on a duly recorded instrument concerning the real property described in the lis pendens, the court has the power to control the notice of lis pendens by discharging it or by requiring the party who filed the lis pendens to post a bond. Avalon Assoc. of Delaware, Ltd. v. Avalon Park Assoc., Inc., 760 So.2d 1132 (Fla. 5th DCA 2000). If the lis pendens is not based on a duly recorded instrument affecting the title to the property, the court, in its discretion, may require that the party filing the lis pendens post a bond when the property owner shows that damages will likely result in the event the notice of lis pendens is unjustified.1 A lis pendens places a cloud on the title that did not previously exist, if not based on a recorded instrument. Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984), approved in part, Medical Facilities Dev., Inc. v. Little Arch Creek Properties, 675 So.2d 915 (Fla.1996).
If the lis pendens were to be reinstated in this case, it should be the filer of the lis pendens—Balsini—who must post a bond, if one is required. Thus, if the filing of a notice of lis pendens was proper in this case, and if DeGuzman could have made the showing of likely damages resulting from the lis pendens, failure to require Balsini to post a bond would have been a departure from the essential requirements of law. See Medical Facilities Dev., Inc. v. Little Arch Creek Properties; 675 So.2d 915 (Fla.1996); Space Development, Inc. v. Florida One Construction, Inc., 657 So.2d 24 (Fla. 4th DCA 1995).
However, a lis pendens in this case should not have been filed because there is no connection between Balsini's litigation to enforce and require payment of child support and the real property against which she filed the lis pendens. She completely failed to show any grounds to assert equitable or legal title2 to the property, nor any connection to it other than as a potential source from which to recoup child support. A lis pendens is not an appropriate instrument for use in promoting recoveries in actions for money judgments. See 51 Am.Jur.2d Lis Pendens § 28 (2000).
When the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized. Id. A notice of lis...
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United States v. Rivera
...title and prevents an owner from selling or dealing with it, it is a harsh and oppressive remedy”) (quotes and citation omitted); DeGuzman, 930 So.2d at 754 (“A lis places a cloud on the title that did not previously exist, if not based on a recorded instrument”). Accordingly, we refuse to ......
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...title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized." DeGuzman v. Balsini, 930 So.2d 752, 755 (Fla. 5th DCA 2006). Here, the Court agrees that because of dismissal of the instant suit Plaintiffs have no valid basis for such an encumb......
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