Opinion
No. 3D06-2591.
September 12, 2007. Rehearing Denied November 1, 2007.
Appeal from the Circuit Court, Miami-Dade County, Pedro Echarte, Jr., J.
Greenberg Traurig and Elliot B. Kula, Miami, for appellants.
Paul Morris; Brooks and Alayon and Gary Brooks, for appellees.
Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
The seller, Francisco de la Fuente, appeals from a non-final order denying his motion to discharge the third lis pendens placed by the buyer, Adrian Developers Corp., and granting the buyer's motion to extend the third lis pendens on the property which is the subject of a disputed real estate agreement. We affirm.
In August 2001, the buyer entered into an agreement with the seller to purchase several acres of real property for approximately $3,000,000 in Miami-Dade County. Based on the buyer's untimely deposit, the seller brought a declaratory action to quiet title. The buyer counterclaimed for specific performance and, in March 2003, filed an amended notice of lis pendens on the property. Subsequently, in Adrian Developers Corp. v. de la Fuente, 905 So.2d 155, 155-56 (Fla. 3d DCA 2004) (" Fuente I"), we affirmed the trial court's determination that the seller's attempt to terminate the agreement was improper but found that the trial court erred in not restoring the parties to the "status quo," which was the position the parties were in prior to the seller's unsuccessful attempt to terminate.
The buyer contends that due to significant changes in the real estate market in Miami-Dade County over the past several years, the subject property is presently worth approximately $40,000,000.
The buyer's first notice of lis pendens was filed in October 2002; however, it was ineffective because it was not properly recorded.
Thereafter, on August 16, 2005, the buyer recorded a third notice of lis pendens on the property. The record reflects that the buyer also attempted to finalize the sale by sending a letter to the seller waiving all of the impediments to closing, including title objections and the buyer's rights to seek land approvals. However, the seller refused to close.
In July 2006, the buyer filed a separate action for specific performance, and filed a fourth notice of lis pendens on the property. Thereafter, the parties filed a series of motions, which included the seller's motions to discharge the third and fourth lis pendens and the buyer's motion to extend the third lis pendens. As a result of the parties' motions, the trial court issued three orders. In its third corrected order, which was issued on September 25, 2006, the court held that: (i) the first lis pendens was a nullity; (ii) the amended lis pendens was discharged by Fuente I; (iii) the third lis pendens was valid and in full effect until August 16, 2007, and thus denied the seller's motion to discharge the third lis pendens; and (iv) the fourth lis pendens was stricken as it was based on a duplicate lawsuit.
On appeal, the seller contends that the trial court abused its discretion in denying his motion to discharge the third lis pendens and granting the buyer's motion to extend the third lis pendens until August 16, 2007. We disagree.
We find no merit in the seller's contention that the third lis pendens was fatally defective because it did not contain the time of commencement of the action. We note that the lis pendens contained the date of our decision in Fuente I and strictly complied with all other aspects under section 48.23.
When an action is not founded on a duly recorded instrument, sections 48.23(2)-(3), Florida Statutes (2006), give the trial court discretion to consider the extension and duration of a lis pendens on a case by case basis. See Taylor v. Steckel, 944 So.2d 494, 497 (Fla. 3d DCA 2006) (citing Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., 833 So.2d 211, 212 n. 1 (Fla. 3d DCA 2002)); see also Rodriguez v. Banco Indus, de Venezuela, C.A., 576 So.2d 870, 873 (Fla. 3d DCA 1991) (citing Am. Legion Cmty. Club v. Diamond, 561 So.2d 268, 272 (Fla. 1990)). Section 48.23(3) states that, when the pleading does not show that the action is founded on a duly recorded instrument, the courts may control and discharge a notice of lis pendens as the courts may grant and dissolve injunctions. § 48.23(3), Fla. Stat. (2006). Section 48.23(2) provides that a notice of lis pendens, which is not founded on a duly recorded instrument, is ineffectual beyond one year from the commencement of the action. However, this section gives the courts authority to extend the effect of the notice beyond one year on reasonable notice and for good cause. § 48.23(2), Fla. Stat. (2006). Moreover, we recently held that this provision does not require a motion to extend a lis pendens to be filed within a year of commencement of the action. Taylor, 944 So.2d at 497. Similarly, we agree with the Second District that this statute does not bar the initial filing of a notice of lis pendens beyond one year from commencement of a legal action. Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45, 47 (Fla. 2d DCA 1984).
Accordingly, we find that the trial court properly exercised its discretion in not discharging the third lis pendens.
Affirmed.
RAMIREZ, J., concurs.
The issue in this case is whether a third lis pendens filed in litigation arising out of an unrecorded purchase and sale contract for eighty-two acres of unimproved land in Miami-Dade County should be discharged. The lis pendens was filed on August 16, 2005, nearly three years after the commencement of this action, and thirty-four months after the filing by the defendant buyer, Adrian Developers Corp., of the specific performance counterclaim on which the lis pendens rests. Two earlier lis pendens and one subsequent lis pendens filed by Adrian either have been discharged by the trial court or voluntarily dismissed. The appellant sellers, Francisco de la Fuente, individually and as Trustee, and Barbara Lewis de la Fuente, contend that the lis pendens should be discharged because it was filed more than one year from the commencement of the action. I find this contention supported by the plain language of section 48.23 of the Florida Statutes.
For a more complete factual background of this case, see Adrian Devs. Corp. v. de la Fuente, 905 So.2d 155, 155 (Fla. 3d DCA 2004).
Section 48.23 of the Florida Statutes (2006) reads, in relevant part:
(1)(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, which notice contains the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property.
. . . .
2) No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.
(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.
§ 48.23, Fla. Stat. (2006) (emphasis added).
The statute plainly states that where, as here, a notice of lis pendens is not founded on a duly recorded instrument, it is not valid for any purpose beyond one year from the commencement of the action unless the court extends the period. If a lis pendens is not valid for any purpose beyond one year from the commencement of the action except when a court extends the date, it necessarily follows that the lis pendens must have been filed at some time during that year. City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003)("Familiar rules of statutory construction teach that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."). Any contrary construction of this statute would render inoperative the phrase, "from the commencement of the action" in section 48.23(2). We are admonished to eschew such consequences. Goode v. State, 50 Fla. 45, 52, 39 So. 461, 463 (1905)("It is the general rule, in construing statutes, that construction is favored which gives effect to every clause and every party of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.") (internal citations omitted); Valdez, 847 So.2d at 1008)("A court's function is to interpret statutes as they are written and give effect to each word in the statute.").
Taylor v. Steckel, 944 So.2d 494, 495 (Fla. 3d DCA 2006), relied upon by the majority in affirming the decision below, does not address this point on appeal. The notice of lis pendens in Taylor was timely filed "in conjunction with the action." Id. at 497. The issue on the lis pendens in Taylor was whether a motion to extend a lis pendens can be filed more than one year after commencement of the action. Id.
I acknowledge the existence of contrary authority. Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45, 47 (Fla. 2d DCA 1984)("We do not interpret [section 48.23(2)] as a bar to initially filing the notice of lis pendens beyond one year from commencement."). I do not find it persuasive. I would reverse the order on appeal and certify conflict with Hallmark Builders. Because I would reverse on this ground, I do not find it necessary to consider other grounds raised by the de la Fuentes.