BAY PLACE DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, AND GILBERT ESTRADA, APPELLANTS,
v.
ELLIS FIRST NATIONAL BANK OF WEST PASCO, N.A., A NATIONAL BANKING ASSOCIATION, APPELLEE
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The court held that an order denying a motion to dismiss an equitable lien claim is not a proper interlocutory appeal, but the portion of the order continuing a notice of lis pendens is reviewable by certiorari.
Appellants, defendants in a foreclosure action, appealed an order denying their motion to dismiss an amended claim for an equitable lien and a notice …
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FRANK, Judge.
The appellants, who were the defendants in a foreclosure action, appeal from an order denying their motion to dismiss an amended claim in which their former attorneys seek the imposition of an equitable lien to secure their fees. They also appeal from that portion of the order denying their motion to strike a notice of lis pen-dens.
This is not a proper interlocutory appeal. The challenged order does not fall within Rule 9.130(a)(3)(C)(iv) of the Florida Rules of Appellate Procedure. The order does not determine “the issue of liability in favor of a party seeking affirmative relief.” That part of the order, however, which continued a notice of lis pendens in effect is reviewable by certiorari. Tortu v. Tortu, 430 So. 2d 531 (Fla. 4th DCA 1983); Cooper Village, Inc. v. Moretti, 383 So. 2d 705 (Fla. 4th DCA 1980). We treat this matter as if it were before us on a petition for writ of certiorari.
We consider first the trial judge’s order denying the motion to dismiss the amended claim for equitable lien. We find no depar ture from the essential requirements of law in the denial of the motion to dismiss.
The order continuing the lis pendens presents a different picture. We have determined that in this aspect of the case the trial judge departed from the essential requirements of law. The record is barren of any fact upon which to support a claim against the specific property affected by the lis pendens. Absent any connection between the claim and the property, the notice of lis pendens cannot stand. Tortu v. Tortu; Lake Placid Holding Co. v. Paparone, 414 So. 2d 564 (Fla. 2d DCA 1982); Sunrise Point, Inc. v. Foss, 373 So. 2d 438 (Fla. 3d DCA 1979).
Accordingly, we grant certiorari, affirm in part and reverse in part, and direct the trial court to enter an order discharging the notice of lis pendens.
GRIMES, A.C.J., and SCHOONOVER, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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James v. Wolfe, 512 So. 2d 954 (Fla. 2d DCA 1987)…nds that the trial court erred in dissolving the notice of lis pendens. The dissolution or continuance of a notice of lis pendens is only reviewable by writ of certiorari. Bay Place Development Corp. v. Ellis First National Bank of West Pasco, N.A., 465 So. 2d 628 (Fla. 2d DCA 1985); Hallmark Builders, Inc. v. Hickory Lanes of Brandon, Inc., 458 So. 2d 45 (Fla. 2d DCA 1984). Therefore, we treat this appeal as a petition for writ of certiorari, and deny the petition. The state attorney has failed to demonstrat…
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First S. Dev. Corp. v. Chandler & Assocs., Inc., 472 So. 2d 878 (Fla. 1st DCA 1985)…orari of a circuit court order denying petitioner’s motion to dissolve a notice of lis pendens or require posting of a bond. Review by cer-tiorari is proper in a case such as this. See, e.g., Bay Place Development Corp. v. Ellis First National Bank, 465 So. 2d 628 (Fla. 2d DCA 1985); Florida Communities Hutchison Island v. Arabia, 452 So. 2d 1131 (Fla. 4th DCA 1984); Seinfeld v. Commercial Bank and Trust Co., 445 So. 2d 1055 (Fla. 3d DCA 1984). See also, Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982).…
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Couture Farms v. Triton Int'l, Inc., 682 So. 2d 578 (Fla. 3d DCA 1996)…issed, 651 So. 2d 1195 (Fla.1995). Similarly, the denial of the motions to dismiss for failure to state a cause of action are non-appealable and must also be dismissed. See Bay Place Development Corp. v. Ellis First National Bank of West Pasco, N.A, 465 So. 2d 628 (Fla. 2d DCA 1985); Owen v. Owen, 427 So. 2d 264 (Fla. 5th DCA 1983); Floyd v. Guardian Life Insurance Company of America, 415 So. 2d 103 (Fla. 3d DCA 1982). Affirmed in part and dismissed in part.…
Authorities Cited
- Levitt v. Vermuccio, 373 So. 2d 438 (Fla. 3d DCA 1979)
- Cooper Vill., Inc. v. Moretti, 383 So. 2d 705 (Fla. 4th DCA 1980)
- Lake Placid Holding Co. v. Elissa Landi Paparone, 414 So. 2d 564 (Fla. 2d DCA 1982)
- Tortu v. Tortu, 430 So. 2d 531 (Fla. 4th DCA 1983)