Mcz/Centrum Flamingo I v. Aimco/Bethesda

• Decision Date: 16 July 2008
• Docket Number: No. 3D08-1538.,3D08-1538.
• Parties: MCZ/CENTRUM FLAMINGO I, LLC, a Delaware limited liability company, Petitioner, v. AIMCO/BETHESDA HOLDINGS, INC., a Delaware corporation, Respondent.
• Court: Florida District Court of Appeals

988 So.2d 89

MCZ/CENTRUM FLAMINGO I, LLC, a Delaware limited liability company, Petitioner, v. AIMCO/BETHESDA HOLDINGS, INC., a Delaware corporation, Respondent.

No. 3D08-1538.

District Court of Appeal of Florida, Third District.

July 16, 2008.

Murai, Wald, Biondo & Moreno and Gerald B. Wald, Coral Gables, and Allen P. Pegg, for petitioner.

Coffey Burlington and David A. Freedman, for respondent.

Before WELLS and SALTER, JJ., and SCHWARTZ, Senior Judge.

WELLS, J.

MCZ/Centrum Flamingo I, LLC seeks certiorari review of an order denying its emergency motion to dissolve a lis pendens recorded by AIMCO/Bethesda Holdings, Inc. We have jurisdiction, grant the petition and quash the order denying the motion to dissolve. See Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So.2d 758, 759 n. 1 (Fla. 3d DCA 2007) ("An order denying a motion to discharge a lis pendens is reviewable by certiorari."); Ross v. Breder, 528 So.2d 64, 64 (Fla. 3d DCA 1988) (confirming that an order denying a motion to dissolve a lis pendens is reviewable by certiorari).

The instant petition stems from a lis pendens recorded in conjunction with a single count complaint in which AIMCO alleges that MCZ breached an agreement to share profits "arising from the marketing and sale" of property that AIMCO earlier sold to MCZ. Claiming that this property is the "source" from which these profits are to be paid, AIMCO seeks imposition of an equitable lien, with an accompanying lis pendens, on the property. While it is true that an equitable lien may arise from a written contract which evidences an intention to charge property with a debt or obligation (and that such a claim may support a lis pendens), the contract in this case evidences no such intent. See Blumin v. Ellis, 186 So.2d 286, 294 (Fla. 2d DCA 1966) ("An equitable lien or mortgage will arise from a written contract which shows an intention to charge or mortgage some particular property with a debt or obligation."); see also Ness Racquet Club, 959 So.2d at 761 (confirming that a claim for an equitable lien may support a lis pendens); Hansen v. Five Points Guar. Bank, 362 So.2d 962, 964 (Fla. 1st DCA 1978) (stating that an equitable lien results only when the intention to offer land as security for a debt is clearly apparent). And although AIMCO alternatively argues that the claimed profits are part of the sale price to which it as vendor is entitled, it is contractually barred from seeking imposition of a vendor's lien under ...