Wiggins v. Dojcsan, No. 81-533

• Court: Court of Appeal of Florida (US)
• Writing for the Court: RYDER; GRIMES; GRIMES
• Citation: 411 So.2d 894
• Parties: Daniel L. WIGGINS, Sr. and Gloria H. Wiggins, Appellants, v. John DOJCSAN and Veronica Dojcsan, Appellees.
• Docket Number: No. 81-533
• Decision Date: 12 February 1982

Page 894

411 So.2d 894 Daniel L. WIGGINS, Sr. and Gloria H. Wiggins, Appellants,
v.
John DOJCSAN and Veronica Dojcsan, Appellees. No. 81-533. District Court of Appeal of Florida, Second District. Feb. 12, 1982.
Rehearing Denied March 29, 1982.

Page 895

Louis X. Amato of MacLean, Amato & Arlen, Naples, for appellants.

Louis S. Erickson, Naples, for appellees.

RYDER, Judge.

Daniel and Gloria Wiggins appeal the order denying their motion to quash service of process and to strike the lis pendens. We affirm.

Appellees' first amended complaint stated that it was an action quasi in rem directed against real property in Collier County. Appellees alleged that appellants were not Florida residents and could not be personally served. Appellees stated a claim for damages against appellants for guarantee of a defaulted promissory note, and demanded sale of the real property to satisfy the claim. Appellees then filed a notice of lis pendens against the property.

Appellants moved to dismiss the complaint, quash service of process by publication, and strike the lis pendens. They appeal from the denial of those motions, arguing that a court order must precede the filing of a lis pendens and that quasi in rem jurisdiction requires seizure or attachment of the property at the institution of the proceedings. We hold that neither act is necessary.

Section 48.23(3), Florida Statutes (1979), provides:

When the initial proceeding does not show that the action is founded on a duly recorded instrument, or on a mechanic's lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

We held in Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976), that the statute required an order of court before filing of notice of lis pendens unless the action was founded on a recorded instrument or mechanic's lien. At least one other district court has reached the opposite result. Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981). We are persuaded by the logic expressed in Cacaro that a notice of lis pendens has only indirect effect on the alienability of the property, that the statute does not expressly require a hearing before filing of the notice, and that the legislature could have expressly provided for a hearing requirement had one been intended. We therefore depart from our holding in Kirk v. Baumann, supra, and herein hold that an order of court need not precede the filing of a valid notice of lis pendens.

Traditionally, the exercise of quasi in rem jurisdiction required seizure or attachment of the property at the outset of the proceeding. See Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713 (1917), Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877); Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941); F. James, Civil Procedure, Section 12.7 (1965). But as we noted in Griffin v. Zinn, 318 So.2d 151 (Fla. 2d DCA 1975), discussing Pennoyer v. Neff, supra:

In the ninety-eight years since that decision, however, while it still seems to be the general rule as well as the rule in Florida, serious doubt has arisen as to whether prejudgment seizure, as a prerequisite to jurisdiction, can survive serious analysis in the light of modern concepts. It would seem that, given authority over the plaintiff and over the subject matter of the action, and having territorial power over the property itself, the right in the forum to exercise that power over the property would depend only upon the due process requirements of giving sufficient notice to the defendant that his property was in jeopardy and affording him a reasonable opportunity to appear and defend. Moreover, since conceptually it is essentially a proceeding against the property, notwithstanding that it is predicated on an in personam, transitory claim against the non-resident defendant, there seems to be no greater reason to require seizure in an action quasi in rem than in one strictly in rem in which it was never required.

318 So.2d at 153.

We hold that an attachment or seizure of the real property below need not have been

Page 896

effected at the outset of the action. The description of property in the complaint, characterization therein of the action as quasi in rem, prayer for relief demanding sale of the property, and lis pendens give clear notice that the property is in jeopardy. ¹ Appellants do not contend that they had inadequate notice to appear and defend the action. Thus, requirements of due process have been met. See Griffin v. Zinn, supra. ²

The order below denying the motion is AFFIRMED.

BOARDMAN, A. C. J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,...