02-1918 BETSY ROSS V. A.G. GLADSTONE

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State: Florida

Court: Florida Third District Court

Docket No: 02-1918 BETSY ROSS V. A.G. GLADSTONE

Case Date: 12/18/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002 BETSY ROSS HOTEL, INC., Appellant, vs. A. G. GLADSTONE ASSOCIATES, INC., etc., et al., ** ** ** ** ** Appellees. ** LOWER TRIBUNAL CASE NO. 99-5100 CASE NO. 3D02-1918

Opinion filed December 18, 2002. An appeal of a non-final order from the Circuit Court of Miami-Dade County, Stuart M. Simons, Judge. Arnaldo Velez, for appellant. William L. Petros and Justin B. Elegant, for appellees.

Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ.

FLETCHER, Judge. Betsy Ross Hotel, Inc., [Hotel, Inc.] appeals a trial court order denying its motion to dissolve notice of lis pendens or to set a hearing on the question of requiring a lis pendens bond.

We reverse as to the trial court's refusal to hold a bond hearing. In January, 1998 A. G. Gladstone Associates, Inc.

[Gladstone] and others entered into a joint venture agreement aimed at converting the property known as the Betsy Ross Hotel into condominium status. Subsequently several of the parties

had a falling out which led Gladstone to file suit, alleging various wrongs. simultaneously. A notice of lis pendens was filed by Gladstone In May, 2000, the Betsy Ross Hotel property

was quitclaimed by a defendant or defendants to Hotel, Inc., notwithstanding the lis pendens. In a (fifth) amended complaint Hotel, Inc.

Gladstone joined Hotel, Inc. as a party defendant.

moved to have the trial court dissolve the lis pendens, or, in the alternative, to require Gladstone to post a bond if the lis pendens were to remain in place. A trial court has the authority to require a lis pendens bond if the action is not founded on a "duly recorded

instrument" or certain liens.

PanAmericano of South Dakota,

Inc. v. Suncoast Bay Dev., Inc., 27 Fla. L. Weekly D2485 (Fla. 2d DCA Nov. 15, 2002). Before setting bond the court is to

afford the parties an evidentiary hearing on the issues of whether the property holder would likely incur damage if notice of lis pendens was unjustified, and the amount of such damages.

2

Licea v. Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997).

The boiled-

down issue here is whether Gladstone's action is founded on a duly recorded instrument.1 Section 48.23, Florida Statutes (1999), which governs

various matters surrounding notices of lis pendens, provides in subsection (3): "When the initial 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, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions." Gladstone contends that the initial pleading shows that the action is founded on a duly recorded instrument, that is, the joint venture agreement (and as will be seen, a unilateral "memorandum of agreement"). Hotel, Inc. contends that the joint

venture agreement is the foundation instrument, and, while it may appear in the public records, it is not duly recorded. This

is the case, Hotel, Inc. argues, as the joint venture agreement - the instrument on which Gladstone's action is founded - was not acknowledged, or witnessed, or notarized as required for

1

The trial court properly denied the motion to strike the lis pendens as Hotel, Inc. does not dispute that there is a fair nexus between the legal or equitable ownership of the property and the dispute embodied in the action. See Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993). 3

recordation by section 695.03, Florida Statutes (1997). section provides in pertinent part: "To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it . . ." [or properly notarized as set forth in

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