SANTA CATALINA TOWNHOMES, INC., PETITIONER,
v.
SHABAZ MIRZA, RESPONDENT
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A real estate developer sought certiorari review of a trial court order denying its motion to dissolve a lis pendens or require a bond. The Fourth District Court of Appeal affirmed the trial court's discretionary denial, holding that a bond is not automatically required when a lis pendens is not founded on a recorded instrument or construction lien, but rather depends on evidence of likely damages.
A bond is not automatically required in all cases where a lis pendens is not founded on a recorded instrument or construction lien. Rather, a trial court has discretion to require a lis pendens bond after an evidentiary hearing on whether the property holder is likely to incur damages and the amount thereof. The trial court did not depart from the essential requirements of law in denying the motion without prejudice, and the developer may renew its request with proper evidence of likely damages.
[1] A trial court is authorized to require a lis pendens bond after affording the parties an evidentiary hearing on whether the property holder is likely to incur damages if…
[2] A bond is not absolutely required for a lis pendens that is not founded on a recorded instrument or construction lien.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court is authorized to require a lis pendens bond, after affording the parties an evidentiary hearing on the issue of whether the holder of the property is likely to incur damage, and the amount thereof, if the lis pendens notice is unjustified”
Establishes the proper standard for when a trial court may require a lis pendens bond—discretionary authority based on evidence of likely damages, not automatic requirement.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSanta Catalina Townhomes, Inc. (the developer) contracted to sell real property to Shabaz Mirza (the purchaser). Mirza filed a lis pendens in connecti…
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PER CURIAM.
In an action for the specific performance of a contract for the construction and sale of real property by petitioner (the developer/defendant below) to the respondent (the plaintiff contract purchaser), the developer seeks certiorari review of an order denying its motion to dissolve the purchaser’s lis pendens or require the posting of a bond. We deny the petition.
The developer contends that because the lis pendens in this case was not founded on a recorded instrument or a construction lien, a bond was absolutely required. Following a hearing at which the .developer did not seek to adduce any evidence of its likely damages (other than counsel’s argument that the developer’s damages would equal the purchase price of the property), the trial court denied the motion without prejudice, declining to set bond “at this time.”
We conclude the trial court did not depart from the essential requirements of law in denying bond “at this time.” In Medical Facilities Development, Inc. v. Little Arch Creek Properties, Inc., 675 So. 2d 915 (Fla.1996), the supreme court rejected the contention that a bond is required in all cases in which the lis pendens is not founded on a recorded instrument or construction lien. Instead, the trial court is authorized to require a lis pendens bond, after affording the parties an evidentiary hearing on the issue of whether the holder of the property is likely to incur damage, and the amount thereof, if the lis pendens notice is unjustified. See Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., Inc., 833 So. 2d 211, 212 (Fla. 3d DCA 2002).
In Haisfield v. ACP Florida Holdings, Inc., 629 So. 2d 963 (Fla. 4th DCA 1993), where, as in the instant case, a lis pendens was filed in connection with a suit for specific performance of a contract to sell land to the party filing the notice, this court adopted, as the proper method of measuring damages for wrongful filing of a lis pendens, the method described in Askari v. R & R Land Co., 179 Cal.App.3d 1101, 225 Cal.Rptr. 285 (1986): the difference between the fair market value at the time of filing of the lis pendens and the fair market value at the time of its termination, plus any consequential damages, including the award of operating expenses if the property declined in value, prejudgment interest from the date of termination of the lis pendens, and attorney’s fees.
In this case, no evidence was presented at the hearing from which the order on review emanated as to the amount of damages petitioner was likely to incur, under this measurement, in the event the lis pen-dens is ultimately determined to be unjustified. By denying bond “without prejudice,” it appears the trial court will allow the petitioner a further opportunity to attempt to do so. Under the circumstances, its denial of the motion without prejudice was not a departure.
Accordingly, we deny the petition without prejudice to the developer’s renewing its request for bond and for an evidentiary hearing on the issue of whether it is likely to incur damages as a result of the lis pendens and, if so, the amount.
STEVENSON, C.J., FARMER and HAZOURI, JJ., concur.
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Citator
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Suarez v. KMD Constr., Inc., 965 So. 2d 184 (Fla. 5th DCA 2007)…y’s fees that may foreseeably be incurred in obtaining a discharge of a notice of lis pendens. Issues concerning the propriety of a bond and the bond amount should be determined at an evidentiary hearing. See Santa Catalina Townhomes, Inc. v. Mirza, 925 So. 2d 1147, 1148 (Fla. 4th DCA 2006)(holding that the trial court is authorized to require a lis pendens bond, after affording the parties an evidentiary hearing on the issue of whether the holder of the property is likely to incur damage, and the amount there…
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Mitchell v. Metro. AT Lake Eola, LLC., 947 So. 2d 1263 (Fla. 5th DCA 2007)…plus any consequential damages, including the award of operating expenses if the property declined in value, prejudgment interest from the date of termination of the lis pendens, and attorney’s fees.” Santa Catalina Townhomes, Inc. v. [*1265] Mirza, 925 So. 2d 1147, 1148 (Fla. 4th DCA 2006). Here, the only evidence offered of potential, prospective damages was Respondent’s estimate of future attorney’s fees. Respondent offered no evidence that the unit’s value was expected to decline. In fact, the evidence su…
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Drummond v. Alsaloussi (S.D. Fla. 2023)…ct “the difference between the fair market value at the time of the filing of lis pendens and the fair market value at the time of its termination, plus any consequential damages.” Id. at 9 (citing inter alia Santa Catalina Townhomes, Inc. v. Mirza, 925 So. 2d 1147, 1148 (Fla. 4th DCA 2006) and Haisfield v. ACP Fla. Holdings, Inc., 629 So. 2d 963, 966 (Fla. 4th DCA 1993)). The Alsaloussi Defendants reply that a bond equal to the contract price of the Properties is “absolutely necessary” and is supported by A…
Authorities Cited
- Med. Facilities Dev., Inc. v. Little ARCH Creek Props., Inc., 675 So. 2d 915 (Fla. 1996)
- Sloan v. State, 629 So. 2d 963 (Fla. 2d DCA 1993)
- Haisfield v. ACP Fla. Holdings, Inc., 629 So. 2d 963 (Fla. 4th DCA 1993)
- Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., Inc., 833 So. 2d 211 (Fla. 3d DCA 2002)