Third District Court of Appeal
State of Florida
Opinion filed June 30, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1775
Lower Tribunal No. 16-0495-P
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David Petkovich, et al.,
Petitioners,
vs.
Sandy Point Condominium Apartments Association, Inc.,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Monroe
County, Luis M. Garcia, Judge.
Annesser Armenteros, PLLC and John W. Annesser, and Megan
Conkey Gonzalez, for petitioners.
Hershoff Lupino & Yagel, LLP and James S. Lupino, and Jessica
Rothenberg, for respondent.
Before SCALES, LINDSEY, and MILLER, JJ.
MILLER, J.
The narrow issue presented in this petition for writ of certiorari is
whether a lawsuit seeking to invalidate the chain of title evidencing the
submission of certain real property to the ownership and control of a
condominium is founded on a duly recorded instrument, as provided in
section 48.23, Florida Statutes. 1 Relying upon the Florida Supreme Court’s
holding in the seminal case of American Legion Community Club v.
Diamond, 561 So. 2d 268 (Fla. 1990), we conclude the relief sought in the
action below rests not on the terms and provisions of recorded documents,
but rather the circumstances surrounding execution.
BACKGROUND
After acquiring two condominium units located in Islamorada, Florida,
petitioners filed suit against respondent, Sandy Point Condominium
Apartments Association, Inc., in the lower tribunal. In the operative
complaint, citing the omission of essential signatures in documents relating
to the conveyance of the disputed properties, petitioners asserted ownership
over areas designated by the Association as common elements of the
condominium.
1
We review an order discharging a lis pendens in certiorari. See Rodriguez
v. Guerra, 254 So. 3d 521, 521 n.1 (Fla. 3d DCA 2018) (citations omitted).
2
The Association counterclaimed, seeking to reform the documents and
quiet title. Petitioners filed a notice of lis pendens, and the parties engaged
in discovery. After the facts were sufficiently developed, the trial court issued
an interlocutory summary judgment order. The order acknowledged a defect
in the conveyance of the properties, occasioned by “missing signatures
and/or a missing page,” and granted summary judgment in favor of the
Association as to its claim for reformation. Shortly after the order was
rendered, the court discharged the lis pendens. The instant petition ensued.
ANALYSIS
Under the doctrine of lis pendens, “[p]ersons acquiring an interest in
property that is a subject of litigation are bound by, or entitled to the benefit
of, a subsequent judgment.” Golden State Bottling Co., Inc. v. N.L.R.B., 414
U.S. 168, 179 (1973). The doctrine “is of ancient origin . . . [and] was
formulated and promulgated by Sir Francis Bacon in 1618, as the twelfth of
his Ordinances in Chancery.” 2 Gardner Smith, The Doctrine of Lis Pendens
in Legal Actions Affecting Land, 48 Bulletin Law Series 31, 31 (1935).
However, “[e]ven before that date, the principle was recognized by the
2
“Bacon's Ordinances in Chancery, which he promulgated in 1618,
governed Chancery proceedings [in England] until the nineteenth century.”
Allen D. Boyer, Light, Shadow, Science, and Law, 92 Mich. L. Rev. 1622,
1634 (1994).
3
courts.” Id. Indeed, in referring to the doctrine, Chancellor James Kent, a
leading legal scholar in the formative years of our country and the first
professor of law at Columbia, 3 remarked, “it would be impossible, as I
apprehend it, to mention any rule of law which has been established upon
higher authority or with more uniform sanction.” Id. (quoting Murray v.
Ballou, 1 Johns. Ch. 566 (1815)).
In accord with these principles, under Florida law, a notice of lis
pendens enables the court in a pending suit “to deal with the property[,] . . .
preserve its jurisdiction over the subject matter,” Avalon Assocs. of Del. Ltd.
v. Avalon Park Assocs., Inc., 760 So. 2d 1132, 1134 (Fla. 5th DCA 2000)
(citation omitted), and protect the “proponent, by preventing intervening liens
that could impair or extinguish claimed property rights.” Taylor v. Steckel,
944 So. 2d 494, 497 (Fla. 3d DCA 2006) (citations omitted); see Warren
Cnty. v. Marcy, 97 U.S. 96, 105 (1877) (“It is a general rule that all persons
dealing with property are bound to take notice of a suit pending with regard
to the title thereto, and will, on their peril, purchase the same from any of the
parties to the suit.”); Adhin v. First Horizon Home Loans, 44 So. 3d 1245,
1251 (Fla. 5th DCA 2010) (The term lis pendens “literally means a pending
3
See John H. Langbein, Chancellor Kent and the History of Legal Literature,
93 Colum. L. Rev. 547, 548 (1993).
4
lawsuit, and is defined as the jurisdiction, power, or control that courts
acquire over property involved in a pending suit.”) (citation omitted).
Section 48.23, Florida Statutes, confers control over such notices upon
the courts. As relevant here, if a lawsuit is premised upon a duly recorded
instrument, the plaintiff is entitled to maintain a lis pendens “as a matter of
right” until the action has been concluded, regardless of “the merits of [his or
her] claims to the subject realty.” Moss v. Arca Dev., Inc., 687 So. 2d 70, 70
(Fla. 3d DCA 1997). Conversely, “[w]hen the pending pleading does not
show the action is founded upon a duly recorded instrument[,] . . . the court
shall control and discharge the recorded notice of lis pendens as the court
would grant and dissolve injunctions.” § 48.23(3), Fla. Stat.
Historically, whether an action was founded upon a duly recorded
instrument was far from clear. A majority of Florida courts distinguished
between actions to enforce rights under a written document and those
seeking to rescind or void a conveyance, finding the former were founded
upon duly recorded instruments, while the latter were not. See Ross v.
Breder, 528 So. 2d 64 (Fla. 3d DCA 1988); Feinstein v. Dolene, Inc., 455 So.
2d 1126 (Fla. 4th DCA 1984); Mohican Valley, Inc. v. MacDonald, 443 So.
2d 479 (Fla. 5th DCA 1984); Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA
1983); Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982); Glusman v.
5
Warren, 413 So. 2d 857 (Fla. 4th DCA 1982). In contrast, a minority view
embraced the proposition that an “action to rescind and cancel [a] recorded
agreement for deeds and the recorded deeds conveying property pursuant
thereto is founded upon a recorded instrument.” Albega Corp. v. Manning,
468 So. 2d 1109, 1110 (Fla. 1st DCA 1985).
This conflict was swiftly resolved by the Florida Supreme Court over
three decades ago in Diamond. There, the court examined whether “a suit
to set aside a conveyance of real property” constituted an action “‘founded
on a duly recorded instrument’ as set forth in section 48.23, Florida
Statutes[,] . . . authorizing the maintenance of a notice of lis pendens as of
right.” 4 Diamond, 561 So. 2d at 269. The proponent of a lis pendens had
filed an action in the trial court to void a warranty deed, alleging a failure to
comply with the applicable constitution, rules and regulations, and bylaws by
certain fiduciaries. Id. at 271. The trial court found the proponent was
entitled to a lis pendens as a matter of right, and the district court reversed,
holding that “a lawsuit to quiet title to real property predicated on allegations
of fraudulent conveyance and misrepresentation is not an ‘action . . .
founded upon a duly recorded instrument.’” Id. (quoting § 48.23, Fla. Stat.).
4
The statutory provision in Diamond is largely identical to the current statute.
6
Closely examining the factual allegations, our high court found that
“[c]learly, the relief sought in [the] action was not founded on the terms and
provisions of the deed but on the circumstances surrounding the execution
of that deed.” Id. at 272. To hold otherwise, it reasoned, would allow for a
notice of lis pendens to “remain in effect beyond one year as of right
whenever real property was involved, contrary to the clear intent of section
48.23.” Id. Thus, only in “those cases in which the suit is based on the terms
and provisions contained in the recorded document” is the proponent entitled
to a lis pendens as a matter of right. Id.
Here, in the operative complaint, petitioners allege ownership by virtue
of defects in the chain of title. The documents recorded in the public record
facially purport to establish the disputed property is subject to condominium
control. Accordingly, petitioners cannot be awarded relief without a decree
invalidating the documents and the underlying conveyances.
Given these circumstances, as in Diamond, the claim is not founded
upon the terms and provisions of the instruments, but instead rests upon the
circumstances surrounding execution. Consequently, petitioners’ authority
to maintain a lis pendens is not as of right, but is subject to the direction and
control of the trial court. Finding no departure from the essential
requirements of law, we deny the petition under review.
7
Petition denied.
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