final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County No. 14-11578, Migna Sanchez-Llorens, Judge.
Weiss Ortiz, in proper person.
Schlesinger & Associates, P.A. and Michael J. Schlesinger
and Andrew S. Genden, for respondents.
SUAREZ, FERNANDEZ, and SCALES, JJ.
Weiss Ortiz ["Ortiz"] files the present petition
for certiorari requesting this Court quash the trial
court's order below granting in part and denying in part
respondent Caroline Weiss's ["Weiss"] motion to
discharge lis pendens or for adequate bond. We deny the
petition for certiorari, finding the trial court did not
depart from the essential requirements of law.
Ortiz is the daughter of the respondent, Caroline Weiss. In
1973, Weiss and her husband Jack bought bayfront lots in
Coconut Grove, numbered 0 through 7 ["the
Property"] through their corporation, JAAC, Inc. That
same year, JAAC executed a warranty deed granting the
Property to Weiss and her husband as tenants by the entirety.
In 1987, JAAC signed a warranty deed to Central Bank and
Trust company, which in turn executed a land trust agreement
deed to JAAC. Jack died in 1995; JAAC was administratively
dissolved in 1997. Weiss subsequently issued a number of
quitclaim deeds, transfers, and corrective documents
involving various lots comprising the Property. In 2014,
Ortiz filed suit to quiet title to the Property, alleging
fraudulent transfer of title based on the post-1995 deed
transfers, and filed a Notice of Lis Pendens. Ortiz argues
that her suit to quiet title is, in fact, based on at least
two duly recorded instruments that at the very least cloud
the title sufficiently to maintain the lis pendens on the
trial court conducted an evidentiary hearing on Weiss's
motion to dissolve lis pendens or for imposition of a bond.
During the hearing, the trial court also took testimony on
the amount of damages Weiss could suffer should the lis
pendens remain in place and should it be determined that it
was unjustified. The trial court denied the motion to
discharge the lis pendens, but determined that the evidence
showed a fair nexus between the legal and equitable ownership
of the Property as claimed by Ortiz. The trial court then
granted Weiss's motion to set a bond in order for the lis
pendens to remain, and placed a deadline on Ortiz's
ability to maintain the lis pendens by requiring her to post
a $3, 000, 000.00 bond by a date certain, otherwise the lis
pendens would be discharged. The trial court arrived at the
bond amount based upon the evidence of the possible damages
presented at the hearing. Ortiz failed to post the bond by
the required date, and the trial court discharged the lis
pendens. Ortiz immediately filed this petition for
certiorari, and this Court stayed proceedings below.
determine that the trial court did not depart from the
essential requirements of the law by requiring a bond to be
posted by a date certain or the lis pendens would be
discharged. When a suit involving real property is, as in the
present case, not based on a duly recorded instrument but
there is a fair nexus proven, the control and discharge of
the lis pendens is at the discretion of the trial judge.
Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993);
Rodriguez v. Banco Indus. de Venezuela, C.A., 576
So.2d 870, 873 (Fla. 3d DCA 1991) ("When an action is
not founded on a duly recorded instrument, the statute gives
the trial court discretion to consider the extension and
duration of the lis pendens on a case-by-case basis.");;
Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs.,
Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000)
(determining unless the initial pleading shows that the
action is founded on a duly recorded instrument, the court
has the power to control the notice by discharging it, or
requiring the party seeking to file a lis pendens to post a
case, the trial court properly exercised its discretion to
order the bond and was correct in treating the requirement
for the bond as it would the bond for a temporary injunction.
Section 48.23(3), Fla. Stat. (2017) ("When the pending
pleading does not show that the action is founded on a duly
recorded instrument or on a lien claimed under part I of
chapter 713 or when the action no longer affects the subject
property, the court shall control and discharge the recorded
notice of lis pendens as the court would grant and dissolve
injunctions."); Nobe Bay Holdings, LLC v.
Garcia, 140 So.3d 693, 695 (Fla. 3d DCA 2014) (holding
that if the proponent of the lis pendens does establish a
fair nexus, the trial court, within its discretion, can
require the lis pendens proponent to post a bond to protect
the property owner); Fla. R. Civ. P. 1.610 ("No
temporary injunction shall be entered unless a bond is given
by the movant in an amount the court deems proper, . .
."). Further, the trial court had the authority to order
the discharge of the lis pendens should the bond not be
timely posted. Because the issue is strictly whether the
lis pendens should remain, there is no need for us to address
the merits of the underlying dispute.
the Petition for Certiorari, and lift the stay.