Sunrise Point, Inc. v. Foss

Decision Date31 July 1979
Docket NumberNos. 78-2377,78-2378,s. 78-2377
Citation373 So.2d 438
PartiesSUNRISE POINT, INC., a Florida Corporation, Philip J. Scutieri, Jr., and Central Bank and Trust Company, as Trustee, Petitioners, v. George B. FOSS, Jr., Respondent.
CourtFlorida District Court of Appeals

Sparber, Shevin, Rosen, Shapo & Heilbronner and Ronald A. Shapo, Miami, for petitioners.

George B. Foss, Jr., Miami, in pro. per.

Spence, Payne, Masington & Grossman, Miami, for respondent.

Before PEARSON, HENDRY and SCHWARTZ, JJ.

SCHWARTZ, Judge.

The defendants seek review, by petition for writ of certiorari, of an order which, with immaterial exceptions, denied their motion to set aside and discharge a lis pendens filed by the plaintiff-respondent against an entire condominium project in Dade County. We grant the petition.

Except as to two particular condominium units in which the parties' interests were directly in issue, the complaint sought only money damages and relief in the nature of a creditor's bill or prejudgment attachment. It did Not allege a direct claim cognizable under the law against or upon the remaining property burdened by the lis pendens. Hence, except as to those two units, no lis pendens may be asserted under any conditions against the realty involved in this case. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925); Hallmark Manufacturing, Inc. v. Lujack Construction Co., Inc., 372 So.2d 52 (Fla. 4th DCA 1979); Worldwide Development-Kendale Lakes West v. Lot Headquarters, Inc., 305 So.2d 271 (Fla. 3d DCA 1974); Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972).

Even as to the specific units referred to, the lis pendens may be permitted to remain in effect only upon the plaintiff's posting of an appropriate bond. Since, even concerning those units, the plaintiff's action was not based upon a "duly recorded instrument or . . . mechanic's lien," Section 48.23(3), Florida Statutes (1975) provides that the rules relating to the issuance of injunctions directly apply. In this instance those standards include the requirement of such a bond. See e. g., Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla. 3d DCA 1972). 1

Accordingly, the order of December 8, 1978 under review, which constitutes a departure from the essential requirements of the law in these respects, Hallmark Manufacturing, Inc. v. Lujack Construction Co., supra, is quashed and the cause remanded for further proceedings consistent with the views expressed herein.

Certiorari granted.

1 Because our rulings in this case are based solely on the sufficiency of the applicable pleadings, we have no occasion to consider the procedural posture in which the legal issues were presented below. Specifically, we need not...

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  • Levitt v. Vermuccio, 78-2155
    • United States
    • Court of Appeal of Florida (US)
    • July 31, 1979
    ......4th DCA 1978); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3d DCA 1976); and ......

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