Third District Court of Appeal
State of Florida
Opinion filed July 13, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2244
Lower Tribunal No. 10-293 P
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Angler’s Reef Property Owners’ Association, etc.,
Appellant,
vs.
Guirm Investment LLC, etc.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Monroe
County, Ruth Becker, Judge.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., and Mark P.
Dikeman, for appellant.
Vernis & Bowling of the Florida Keys, P.A., and Scott C. Black, for
appellee.
Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
ON MOTION TO DISMISS
LAGOA, J.
Appellee, Guirm Investment, LLC (“Guirm”), moves to dismiss the appeal
of an order discharging a lis pendens filed by Appellant, Angler’s Reef Property
Owners’ Association, Inc. (“ARPOA”). We deny the motion to dismiss.
I. FACTUAL AND PROCEDURAL HISTORY
On February 3, 2014, ARPOA filed and recorded a Notice of Lis Pendens as
to several pieces of real property, including docking units 17-A and 18-A. On
February 27, 2014, Guirm filed a motion to require ARPOA to post a bond for the
lis pendens. The trial court granted Guirm’s motion, but reserved ruling on the
actual amount of the lis pendens bond. Following the trial court’s grant of the lis
pendens bond—but before a hearing on the bond amount—ARPOA filed a notice
of appeal of the order granting the lis pendens bond. On December 23, 2014, this
Court dismissed the appeal without prejudice, as the issue was not ripe for review
until the trial court determined an actual bond amount.
Subsequently, on March 18, 2015, the trial court entered an order requiring
ARPOA to post a $60,000 lis pendens bond for each docking unit. The order also
provided that if ARPOA did not post the bonds within thirty days, Guirm could
seek entry of an order discharging the lis pendens without further motion or
hearing. After thirty days passed without ARPOA posting the bond, ARPOA
submitted to the trial court a proposed agreed order discharging the lis pendens.
On September 9, 2015, the trial court discharged ARPOA’s lis pendens to docking
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units 17-A and 18-A. On September 15, 2015, ARPOA filed its notice of appeal of
the non-final order discharging the lis pendens, and Guirm moved to dismiss the
appeal.1
II. ANALYSIS
In its motion to dismiss, Guirm argues that in order to invoke this Court’s
jurisdiction, ARPOA should have filed its notice of appeal no later than thirty days
from rendition of the trial court’s March order setting the amount of the lis pendens
bond for each docking unit. Guirm asserts that ARPOA’s appeal is untimely under
Florida Rule of Appellate Procedure 9.130(b) because it was not filed within thirty
days “of the order to be reviewed,” i.e., no later than April 17, 2015. Guirm asserts
that because ARPOA did not do so, this Court is without jurisdiction and the
appeal must be dismissed.
Rule 9.130(a)(3)(B) provides for appellate review of interlocutory orders
that dissolve injunctions, and this Court has repeatedly held that this provision of
the rule provides the Court with jurisdiction to review trial court orders discharging
lis pendens. See, e.g., Moss, 687 So. 2d 70; Bardino, 670 So. 2d 183; Acapulco
1 This Court has held that an appeal pursuant to Florida Rule of Appellate
Procedure 9.130(a)(3)(B) is the proper vehicle for review of a non-final order
discharging a lis pendens. See, e.g., Moss v. Arca Dev., Inc., 687 So. 2d 70, 70
(Fla. 3d DCA 1997); Bardino v. Bardino, 670 So. 2d 183, 184 (Fla. 3d DCA 1996);
Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 656 So. 2d 1300, 1302
(Fla. 3d DCA 1995), decision approved in part, quashed in part on other grounds,
675 So. 2d 915 (Fla. 1996); Acapulco Constr. Inc. v. Revado Estates, Inc., 645 So.
2d 182, 183 (Fla 3d DCA 1994).
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Constr., 645 So. 2d 182. Here, although ARPOA’s notice of appeal does state that
it appeals all three orders, i.e., the order requiring ARPOA to post a bond, the order
setting the amount of the bond, and the order discharging the lis pendens for failure
to post a bond, the only argument presented in ARPOA’s initial brief contests the
requirement of the lis pendens bond, not the amount of the bond itself. Thus, while
ARPOA’s appeal of the trial court’s first two orders is, in fact, untimely, its appeal
of the third order discharging the lis pendens is timely (ARPOA filed its notice of
appeal within a week of the discharge order). By timely appealing the September
9, 2015 order discharging the lis pendens, ARPOA can present arguments
regarding the alleged wrongful discharge of the lis pendens for failure to post a
bond, although it cannot (and does not) contest the order setting the bond amount.
Guirm correctly argues, however, that in two of the cases ARPOA cites in its
initial brief, the appellants sought appellate review once the trial court ruled on
whether to require a lis pendens bond and for how much to set the lis pendens bond
amount, and did not wait until the trial court discharged the lis pendens altogether.
See Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 656 So. 2d 1300
(Fla. 3d DCA 1995); Munilla v. Espinosa, 533 So. 2d 895 (Fla. 3d DCA 1988).
These cases do not, however, stand for the proposition that ARPOA could only
properly file its appeal at that time, and Guirm does not cite any authority to
support this proposition. No Florida case or rule of procedure states that ARPOA
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was required to appeal at that time and could not appeal after the trial court entered
its order discharging the lis pendens, i.e., dissolving the injunctive relief imposed
by the lis pendens.
Because ARPOA filed its notice of appeal within thirty days of the trial
court’s order discharging the lis pendens, this Court has jurisdiction to review that
non-final order. Accordingly, we deny the motion to dismiss.
Motion to dismiss denied.
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