373 So. 2d 438

SUNRISE POINT, INC., a Florida Corporation, Philip J. Scutieri, Jr., and Central Bank and Trust Company, as Trustee, Petitioners, v. George B. FOSS, Jr., Respondent.

Nos. 78-2377, 78-2378.

District Court of Appeal of Florida, Third District.

July 31, 1979.

*439Sparber, Shevin, Rosen, Shapo & Heil-bronner 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 pen-dens 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.

Sunrise Point, Inc. v. Foss
373 So. 2d 438

Case Details

Name
Sunrise Point, Inc. v. Foss
Decision Date
Jul 31, 1979
Citations

373 So. 2d 438

Jurisdiction
Florida

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!