Feinstein v. Dolene, Inc., 84-886

• Decision Date: 19 September 1984
• Docket Number: No. 84-886,84-886
• Citation: 455 So.2d 1126
• Parties: Marvin FEINSTEIN, Petitioner, v. DOLENE, INC., a Florida corporation, Respondent.
• Court: Florida District Court of Appeals

Page 1126

455 So.2d 1126

Marvin FEINSTEIN, Petitioner, v. DOLENE, INC., a Florida corporation, Respondent.

No. 84-886.

District Court of Appeal of Florida Fourth District.

Sept. 19, 1984.

William S. Weisman of Gilbride, Heller & Brown, P.A., Miami, for petitioner.

Scott E. Simowitz of Goldberg, Young & Borkson, P.A., Fort Lauderdale, for respondent.

GLICKSTEIN, Judge.

This is a petition for writ of certiorari, by defendant below, who seeks review of the trial court's denial of rehearing on its order denying petitioner/defendant's motion to control respondent/plaintiff's lis pendens as an injunction. We grant the petition and quash the order.

Plaintiff/respondent Dolene, Inc., filed a seven count complaint against Marvin Feinstein, as well as his father, Morris Feinstein, Samuel Workman and Village, Inc., of Broward County. Dolene alleged that a joint venture to develop a certain parcel of real property had been orally agreed to among Dolene, Village, Inc., S.L. Workman, Merrick Development, Inc., Gilfat Florida, Inc., and B & M Holdings, Inc. Samuel Workman is the majority stockholder of S.L. Workman. Dolene is one-third owner of Village, Inc. Morris Feinstein is majority stockholder in and chief operating officer of Bonavista Holdings, Inc., which is also a one-third shareholder of Village, Inc. Marvin Feinstein is one-half shareholder and officer of B & M Holdings, Inc.

The joint venture was to be known as Pembroke Pines Joint Venture. It was to purchase the parcel and develop, build, and sell about 200 single family units on it. The parcel was to be purchased for the joint venture in the names of Morris Feinstein and Sam Workman as trustees for the joint venture. Morris Feinstein and Workman as trustees did take title to the property. Allegedly, Dolene contributed $26,000 to be used as partial payment for the land. Thereafter, Morris Feinstein and Workman transferred the property to Marvin Feinstein as trustee. Dolene instituted its suit as a shareholders derivative action. Dolene did not attempt first to get Village, Inc.'s, Board of Directors to bring the action, because Village, Inc., is controlled by the people being sued.

At the same time as the respondents/plaintiffs filed this suit they also filed and recorded a notice of lis pendens. Marvin Feinstein then moved, pursuant to section 48,23(3), Florida Statutes (1983), to have the lis pendens controlled and discharged as if an injunction, claiming the respondents'/plaintiffs' action was based on an alleged oral joint venture agreement and not on a recorded instrument or a mechanic's lien. The trial court denied this motion and subsequently also denied Marvin Feinstein's motion for rehearing. Marvin Feinstein timely petitioned for writ of certiorari. The general issue is whether the trial court departed from the essential requirements of law when it denied petitioner's motion to have respondent's lis pendens controlled as if an injunction, and denied petitioner's motion for rehearing.

The governing statute is section 48.23(3), which provides:

When an 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.

The effect of the statute is to make applicable to a lis pendens not founded on either a duly recorded instrument or a mechanic's lien the same safeguards that apply to an injunction; e.g., notice, the posting of an adequate bond, and the showing of irreparable harm. Cacaro v. Swan, 394 So.2d 538, 539 (Fla. 4th DCA 1981).

In the instant case, the trial court's order was directed to the stipulated threshold issue which had to be determined before any evidentiary hearing could be held; namely, whether the present action was founded on a duly recorded instrument. Marvin Feinstein relied on Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984). In that opinion, the District Court wrote: "A duly recorded instrument constitutes notice to the public of plaintiff's legal or equitable interest in the subject property and the lis pendens gives further notice that a lawsuit has been filed which may affect the title to the property." Id. at 481. The court illustrated this principle by discussing mortgage foreclosure as an example. "When a lawsuit is based upon a mortgage there is already notice to the public on record which shows the mortgagee's interest in the property." Id. Because the public has already been informed of the plaintiff's interest in the real property via the recorded mortgage on which he is suing, there is no reason to require the plaintiff to post a bond for his lis pendens. See id.

In Mohican Valley the plaintiff claimed he was suing to quiet title. Actually, said the court, the suit was a shareholders derivative suit to...