Mohican Valley, Inc. v. MacDonald, 83-1752

• Citation: 443 So.2d 479
• Decision Date: 12 January 1984
• Docket Number: No. 83-1752,83-1752
• Parties: MOHICAN VALLEY, INC., Petitioner, v. Alan MacDONALD, etc., et al., Respondents.
• Court: Court of Appeal of Florida (US)

Page 479

443 So.2d 479

MOHICAN VALLEY, INC., Petitioner, v. Alan MacDONALD, etc., et al., Respondents.

No. 83-1752.

District Court of Appeal of Florida,

Fifth District.

Jan. 12, 1984.

Ladd H. Fassett and Rita A. Lowndes, of Smathers, Pleus, Adams, Fassett & Divine, P.A., Orlando, for petitioner.

Michael C. Sasso, of Dempsey & Slaughter, P.A., Orlando, for respondents.

DAUKSCH, Judge.

This is before us on a petition for writ of certiorari en banc because the panel determining the issue was preparing to issue an opinion in direct conflict with another opinion of this court. Under Florida Rule of Appellate Procedure 9.331, an appellate court may order a hearing en banc, on its own motion, if "necessary to maintain uniformity in the court's decisions." When it became apparent to the panel deciding this case that its decision would be in conflict with the decision in Florida Peach Corp. of America v. Lurie, 411 So.2d 339 (Fla. 5th DCA 1982), all of the judges of this court were summoned and it was unanimously agreed that in order to maintain the uniformity of this court's decisions we must recede from Florida Peach. Of course, in another case we may have voted to the contrary and agreed to stick with a prior opinion rather than recede from it. Consistency in the decisions of a court of appeal is the desirable result afforded by the en banc rule.

The statement of law in Florida Peach is correct and remains binding precedent but the factual basis upon which it rests does not support the statement of law. That is, under the facts in Florida Peach we reached the wrong result.

The statement of law which is correct is that "[t]he court may control and discharge a notice of lis pendens as it may grant and dissolve injunctions if the initial pleading does not show the action is founded on a duly recorded instrument.... If a lis pendens is based on a duly recorded instrument, the court has no authority for imposing the condition of an indemnity bond in order to maintain the action."

The error in Florida Peach occurs in the opinion when it says the suit to quiet title in that case was founded upon a duly recorded instrument as contemplated by the statute. ¹

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. A mortgage foreclosure is the most common example of an action which is founded upon a duly recorded instrument--the mortgage. 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. The lawsuit upon that mortgage may be to foreclose it, cancel it, modify it or otherwise directly affect the grantor's and grantee's rights under the mortgage. There is no reason to require the plaintiff in a suit on a mortgage to post a bond for his lis pendens because the instrument upon which he is suing already...