Ness Racquet Club, LLC v. Renzi Holdings

• Decision Date: 23 May 2007
• Docket Number: No. 3D07-1110.,3D07-1110.
• Citation: 959 So.2d 758
• Parties: NESS RACQUET CLUB, LLC, etc., et al., Petitioners, v. RENZI HOLDINGS, INC., etc., et al., Respondents.
• Court: Florida District Court of Appeals

959 So.2d 758

NESS RACQUET CLUB, LLC, etc., et al., Petitioners, v. RENZI HOLDINGS, INC., etc., et al., Respondents.

No. 3D07-1110.

District Court of Appeal of Florida, Third District.

May 23, 2007.

Richard and Richard, and Dennis Richard, Laurel W. Marc-Charles, Miami, and Michael R. Tolley, for petitioners.

Arnaldo Velez, Coral Gables; Thomas K. Equels, Miami, for respondents.

Before GREEN, SHEPHERD, and LAGOA, JJ.

SHEPHERD, J.

Petitioners, Ness Racquet Club, LLC, et al., (Ness), seek certiorari review of a trial court order denying their motion to discharge a lis pendens filed by Respondent Renzi Holdings, Inc., et al., (Renzi), against property owned by Ness. We grant the petition for certiorari,¹ and order the discharge of the lis pendens effective upon issuance of this opinion.

In July 2005, Renzi affiliate, Renzi Acquisitions, LLC, entered into an agreement with Racquet Club Towers, LLC, to purchase property known as the Racquet Club Property for developmental purposes. On September 3, 2005, Renzo Renzi and Pasquale Renzi each assigned their fifty-percent interest in Renzi Acquisitions to Ness. On September 15, 2005, the sale closed and Ness became the owner and legal titleholder of the property.

On September 13, just two days before the Ness purchase was consummated, a Ness affiliate, Venes Holdings LLC (Venes) executed a "Racquet Club Project Agenda" with yet another Renzi affiliate, "Renzi Development." For purposes of this petition, the parties treat this "Agenda" as an enforceable agreement. The "Agenda" provides that

Venes Holdings LLC ("Venes"), through its affiliate, Ness Racquet Club, LLC, will be the owner of the land.

* * *

As compensation for Renzi's contribution to the Project, the latter will receive a 50% share of the Project's net profit

The agreement continues that the following development services for the project, all subject to the approval of Venes:

• Act as construction manager for the project.

• Provide the owner a construction budget, for owner's approval.

• Obtain and guarantee any loans required.

• Substantially complete the project within 24 months of the owner acquiring the property.

Sometime after the Ness closing and the execution of the "Agenda," differences developed between Venes, Ness and Renzi resulting in Ness terminating Renzi Development. Ness initiated the action below, suing Renzi and its principals, Renzo and Pasquale, for publicly holding out Renzi as owner and legal titleholder of the property, and offering the condominium units being constructed on the property for sale when it had no authority do so. Renzi countered with a three count counterclaim based upon the "Agenda." Count I seeks injunctive relief "restoring Counterplaintiffs to their position in charge of construction of the Racquet Club Project;" Count II seeks a declaratory judgment that "the Counterplaintiffs have equitable rights with regard to the Racquet Club Property;" Count III seeks damages for breach of contract.

On March 2, 2006, Renzi filed its first lis pendens against the Property. Shortly thereafter, Renzi voluntarily discharged this lis pendens in the face of a motion to discharge filed by Ness. On June 14, Renzi filed a second lis pendens, again voluntarily discharging when pursued by another motion to discharge. The instant lis pendens was filed February 22, 2007, and, according to sworn testimony by Ness representatives, threatens a significant pending financing transaction. On April 27, 2007, the trial court entered an order on Ness' most recent motion to discharge, that the lis pendens will "automatically dissolve" on June 5, 2007, unless a substantial bond is posted by Renzi on or prior to that date. It appears, unfortunately, that the June 5 deadline follows eight days after Ness' financing commitment expires.

Lis pendens in Florida is governed by section 48.23 of the Florida Statutes. "Unless the initial pleading shows that the action is founded on a duly recorded instrument, the effect of the filing is limited to one year, and the court has the power to `control' the notice by discharging it, or requiring the party seeking to file a lis pendens to post a bond." Avalon Assoc. of Delaware Ltd. v. Avalon Park Assoc., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000)(citing § 48.23(2), Fla. Stat.). Here, Renzi concedes that there is no recorded instrument on which it can claim any interest in the property. Its argument is based solely upon the unrecorded agreement executed by it and Venes. This agreement does not support the recording of a lis pendens...