Musselwhite v. Raimey, DD-139

• Decision Date: 30 March 1977
• Docket Number: No. DD-139,DD-139
• Citation: 348 So.2d 330
• Parties: Benton MUSSELWHITE et al., Appellants, v. Donald C. RAIMEY et al., Appellees.
• Court: Florida District Court of Appeals

Page 330

348 So.2d 330

Benton MUSSELWHITE et al., Appellants, v. Donald C. RAIMEY et al., Appellees.

No. DD-139.

District Court of Appeal of Florida, First District.

March 30, 1977.

Rehearing Denied Aug. 18, 1977.

Ernest W. Welch, Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellants.

D. Michael Chesser, Selby & Chesser, James W. Middleton, Fort Walton Beach, for appellees.

PER CURIAM.

Affirmed.

BOYER, C. J., and McCORD, J., concur.

RAWLS, J., dissents.

RAWLS, Judge (dissenting).

The sole question presented by this interlocutory appeal as framed by appellants is:

Where more than one year passed after recording of lis pendens; and the initial pleading does not show that action is founded on a duly recorded instrument or a mechanic's lien; and no fraud, misrepresentation, mistake or insolvency of land owner is shown, it was an abuse of discretion for the trial court to deny motion to discharge lis pendens.

I am of the firm conviction that the subject lis pendens should be stricken.

A suit was filed by plaintiffs (appellees) in Okaloosa County, Florida, alleging breach of contract and asking for an accounting along with a declaratory judgment against defendants (appellants). Plaintiffs filed a lis pendens in Gulf County, Florida, on December 28, 1973, by which they asserted an interest in some 920 acres of land located on Cape San Blas. The initial lis pendens was re-recorded by plaintiffs on January 22, 1974. Defendant, Cape San Blas Joint Venture, on the following day moved to discharge the lis pendens, which motion was denied. A second amended complaint was filed by plaintiffs on April 7, 1975. Cape San Blas again moved to discharge the lis pendens, which motion was denied on July 26, 1976; hence this appeal.

According to plaintiffs' second amended complaint, this cause of action was instituted on the basis of an unrecorded agreement executed by defendant, Ralph A. Ritteman, viz:

"For and in consideration of Thirty Thousand and no/100 dollars ($30,000.00), receipt of which is hereby acknowledged, the undersigned hereby sells, transfers and conveys unto Donald C. Raimey, David H. Groark and Wallace P. Conklin, jointly, an undivided ten per cent (10%) interest of all that interest presently held by Ralph A. Ritteman, Benton Musselwhite and Robert A. Burr in a certain tract of land comprised of approximately Nine Hundred Thirty (930) acres located at Cape San Blas, Gulf County, Florida. Thirty Thousand and no/100 dollars ($30,000.00) refundable from loan proceeds at closing.

WITNESSES:

(names not legible)

Signed: May 24, 1973

/s/ Ralph A. Ritteman

TRUSTEE"

At the time Ritteman borrowed the $30,000.00, he had a contract to purchase approximately 920 acres of land located on Cape San Blas from Partnership Investments of Florida, Inc. ¹ On July 27, 1973, Ralph Ritteman, Trustee; Northwest Florida Investments, Inc. (Ritteman was majority stockholder); George W. Griffith and Cape San Blas, Ltd., formed a joint venture under the name of Cape San Blas Joint Venture, which agreement was recorded in the official records of Gulf County. The property was subsequently purchased by Northwest Florida Realty, Inc., which, on September 27, 1973, by its president, Ralph Ritteman, conveyed by quit-claim deed the subject land to Cape San Blas Joint Venture. Plaintiffs' second amended complaint alleges that the $30,000.00 loan has not been paid and that they have not received any interest in the property.

The effect of a lis pendens on the owner of property is constraining. For all practical purposes, it would be virtually impossible to sell or mortgage the property, because the interest of the purchaser or mortgagee would be subject to the eventual outcome of the suit. Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972). Recognition by the legislature of the impact of the recording of a lis pendens against land is evident from the clear provisions of Section 48.23(2), Fla.Stat., viz:

"(2) No notice of lis pendens is effectual for any purpose beyond one year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument, or on a mechanic's lien claimed against the property involved except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice...