Wednesday, July 29, 2009

Third DCA Reverses Imposition of Lis Pendens

In Strategic Empowerment for Economic Development, Inc. v. South Dade Realty, Inc. (3D08-2995), the Third District reversed a trial court's order relating to the filing of a lis pendens.

The trial court granted the appellants motion to dissolve a lis pendens, however, at the same time stated “The Notice of Lis Pendens shall constitute an equitable lien upon the net proceeds from the sale of any or all of the above described real property, to secure payment of the real estate brokerage commission allegedly owed to [SDR] by [SEED], pending the resolution of this action.”

The Third District held:

Setting aside the highly improbable proposition that a lis pendens can reach, affect, or in any way encumber the cash proceeds of a real estate closing that has yet to occur...the scant record in this case—an unsworn complaint, a lis pendens signed by counsel alone, and an answer and affirmative defenses to the complaint—does not satisfy even the most rudimentary of conditions for entry of a mandatory injunction without written or oral notice to the adverse party, see Fla. R. Civ. P. 1.610, which most assuredly is what SDR intended by the filing of its lis pendens in this case.

In this respect, the case before us is not at all analogous to either Cohen Financial LP v. KMC/EC II, LLC, 967 So. 2d 224 (Fla. 3d DCA 2007), or Riverland & Indian Sun L.C. v. L.J. Melody & Co., 879 So. 2d 1271 (Fla. 3d DCA 2004), both of which proceeded upon a filed motion for the entry of a temporary injunction. For this reason, we summarily reverse the order on appeal with the direction that any prejudgment interdiction of the real estate proceeds of the closing of this real estate transaction by the trial court in this case be abandoned forthwith.

This opinion will take effect immediately, notwithstanding the filing of any motions for rehearing.


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