COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., A FLORIDA CORPORATION, NOT FOR PROFIT, APPELLANT,
v.
CENTURY 21 COMMODORE PLAZA INC., A FLORIDA CORPORATION, APPELLEE
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The Commodore Plaza condominium association appealed two interlocutory orders: one dissolving a notice of lis pendens filed against the developer-plaintiff's units, and another severing equitable issues from legal issues for separate trial. The Third District affirmed both orders, holding that the trial court properly exercised its discretion under Florida statute and procedural rules.
The trial court properly dissolved the notice of lis pendens under Florida Statute § 48.23(3) because the action was not founded on a duly recorded instrument but rather on the validity of the assessment itself; the court's protective escrow/bond requirement adequately protected prospective purchasers. The trial court properly severed equitable issues (declaratory and injunctive relief) from legal issues under Florida Rules of Civil Procedure 1.270(b) because equitable matters should be resolved by the judge prior to jury trial of legal claims.
[1] A court has statutory authority to control and discharge a notice of lis pendens when the initial pleading does not demonstrate that the action is founded on a duly recor…
[2] A court may require a plaintiff to place funds in escrow or post a bond from sale proceeds to protect subsequent purchasers when a notice of lis pendens is dissolved.
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Join FLexlaw to unlock all legal intelligence“the court's action was consistent with the statutory authority accorded by Fla.Stat. § 48.23(3), F.S.A., to control and discharge the notice of lis pendens. The initial pleading demoristrates that this action is not 'founded on a duly recorded instrument,' i.e., the liens filed by defendant, but is based upon the validity of the assessment levied by the association.”
Establishes the legal basis for dissolving the lis pendens—the action challenges the validity of the underlying assessment, not the recorded liens themselves.
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Join FLexlaw to unlock all legal intelligenceThe condominium developer-builder (plaintiff) filed suit challenging an assessment levied by the condominium association as illegal and void, and soug…
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HENDRY, Judge.
We have consolidated two interlocutory appeals by the defendant condominium association from separate orders by the trial court, one granting plaintiff’s motion to dissolve a notice of lis pendens and the other granting plaintiff’s motion to sever the equitable issues from the legal issues. We affirm both orders.
This action results from a complaint filed by the plaintiff, the builder-developer of the condominium, seeking to declare an assessment levied by the association as illegal and void. In addition, plaintiff seeks temporary and permanent injunctive relief from liens filed in the public records by the association against certain units owned by plaintiff as a result of nonpayment of the disputed assessment. Plaintiff also seeks to have these liens dissolved and seeks over $500,000 in compensatory and punitive damages.
The trial court subsequently granted plaintiff a temporary injunction noting that irreparable harm might result if relief were not granted. The injunction enjoined defendant from placing any further liens upon units held by the plaintiff or from attempting to enforce or foreclose upon any liens already filed.
Thereafter, the plaintiff discovered that a notice of lis pendens had been filed by the defendant, and plaintiff moved the court to dissolve the notice. The court granted the motion. In so doing, the court also ordered that with respect to any of the liened units sold after the date of the court’s order, the plaintiff would be required to place in escrow from the proceeds an amount equivalent to the lien upon the unit, or to post a bond acceptable to the court. This was intended to protect subsequent purchasers from the encumbrance created by the lien.
In our view, the court’s action was consistent with the statutory authority accorded by Fla.Stat. § 48.23(3), F.S.A.,1 to control and discharge the notice of lis pen-dens. The initial pleading demoristrates that this action is not “founded on a duly recorded instrument,” i. e., the liens filed by defendant, but is based upon the validity of the assessment levied by the association. Moreover, the court’s order provides for sufficient protection for prospective purchasers, a primary purpose for the notice of lis pendens. See 54 C.J.S. Lis Pen-dens § 22; 21 Fla.Jur. Lis Pendens § 3.
Turning to the trial judge’s second order, granting plaintiff’s motion to sever, we express the view that the appellant has not demonstrated an abuse of discretion by the court in severing the equitable issues for non-jury trial. See Florida R.C.P. 1.-270(b), 30 F.S.A.; Watts v. Mantooth, Fla.App. 1967, 196 So. 2d 230. The complaint in this cause seeks declaratory and injunctive relief with regard to the validity of the special assessment levied by the association, issues which are equitable in nature and should be resolved prior to a jury trial of the legal issues raised in the complaint. Southwestern Life Insurance Co. v. Gerson, Fla.App.1966, 187 So. 2d 63; Adams v. Citizens Bank of Brevard, Fla.App.1971, 248 So. 2d 682; see also, Fla. Stat. § 86.071, F.S.A.2
Therefore, for the reasons stated and upon the authorites cited, the orders appealed are affirmed.
Affirmed.
. Fla.Stat. § 48.23(3), F.S.A. provides:
“(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.
. Fla.Stat. § 86.071, F.S.A., pertaining to declaratory judgments, reads as follows:
“When an action under this chapter concerns the determination of an issue of fact, the issue may be tried as issues of fact are tried in other civil actions in the court in which the proceeding is pending. To settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submission to a jury. When a declaratoin of right or the granting of further relief based thereon concerns the determination of issues of fact triable by a jury/ the issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict is required or not. Neither this section nor any other section of this chapter shall be construed as requiring a jury to .determine issues of fact in chancery actions.”
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Avalon Assocs. OF Del. Ltd. v. Avalon Park Assocs., Inc., 760 So. 2d 1132 (Fla. 5th DCA 2000)…c., 579 So. 2d 290 (Fla. 3d DCA 1991) (suit to enforce a covenant running with the land, which was recorded, was not a suit founded on a recorded instrument); Commodore Plaza at Century 21 Condominium Ass’n, Inc. v. Century 21 Commodore Plaza, Inc., 290 So. 2d 539 (Fla. 3d DCA 1974) (suit by builder/owner of condo units to declare invalid assessments filed against its unit, where the assessments were filed pursuant to the recorded declaration held not a suit founded on a recorded instrument). In American Leg…1 / 2
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Franklin v. White Egret Condo., Inc., 358 So. 2d 1084 (Fla. 4th DCA 1977)…any jury trial, if affordable at all, is clearly subject to the discretion of the trial court, and no abuse of discretion is shown. See Commodore Plaza at Century Twenty One Condominium Association, Inc. v. Century Twenty One Commodore Plaza, Inc., 290 So. 2d 539 (Fla. 3rd DCA 1964); Davis v. McGahee, 257 So. 2d 62 (Fla. 1st DCA 1972). Accordingly, we affirm, in part, and reverse, in part, and remand, with directions consistent with the views expressed herein. AFFIRMED, in part; REVERSED, in part, and REMA…
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Worldwide Development-Kendale Lakes W. v. LOT Headquarters, Inc., 305 So. 2d 271 (Fla. 3d DCA 1974)…the opinion that the plaintiff-broker is not entitled to have the lis pen-dens so imposed on the defendant-purchaser’s property. See also Commodore Plaza at Century 21 Condominium Association, Inc. v. Century 21 Commodore Plaza, Inc., Fla.App.1974, 290 So. 2d 539, and see Beefy King International, Inc. v. Veigle, 5th Cir. 1972, 464 F. 2d 1102, 1104, wherein discharge of a lis pendens was held to be proper because under Florida law, a lis pendens is proper only when the required relief might specifically affe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. Citizens Bank OF Brevard, 248 So. 2d 682 (Fla. 4th DCA 1971)
- Sw. Life Ins. Co. v. Gerson, 187 So. 2d 63 (Fla. 3d DCA 1966)
- Watts v. Mantooth, 196 So. 2d 230 (Fla. 2d DCA 1967)