Opinion
Case No. 6D23-2649
09-15-2023
CPPB, LLC, Petitioner, v. TAURUS APOPKA CITY CENTER, LLC, Respondent.
Jon Polenberg and Yasin Daneshfar, of Becker & Poliakoff, P.A., Ft. Lauderdale, for Petitioner. Bryan L. Capps, of The Construction Law Firm, Orlando, for Respondent.
Petition for Writ of Certiorari to the Circuit Court for Orange County. Vincent S. Chiu, Judge. Lower Tribunal No. 2022-CA-010371-0
Jon Polenberg and Yasin Daneshfar, of Becker & Poliakoff, P.A., Ft. Lauderdale, for Petitioner.
Bryan L. Capps, of The Construction Law Firm, Orlando, for Respondent.
NARDELLA, J.
CPPB, LLC ("CPPB") petitions this Court for a writ of certiorari quashing the trial court’s order denying its motion to dissolve a lis pendens. Because CPPB fails to demonstrate irreparable harm, we dismiss its petition.
The underlying lawsuit arises from a real estate transaction gone awry. Taurus Apopka City Center, LLC ("Taurus") and CPPB reached an agreement wherein Taurus sold one of its four contiguous parcels to CPPB. CPPB in turn agreed to improve all four parcels—not just the parcel it purchased. As part of the transaction, Taurus deposited funds into escrow as security for its pro rata share of improvements. But, after certain improvements were completed, the parties disputed whether Taurus owed additional funds. This dispute resulted in CPPB suing Taurus for breach of contract and unjust enrichment.
[1] In response, Taurus filed a counterclaim to declare a notice of commencement void ab initio and to rescind the transaction. As notification of Taurus’ counterclaim, it also filed a notice of lis pendens on the parcel purchased by CPPB. CPPB then filed a motion to dissolve the lis pendens, which the trial court denied. It is that order which CPPB requests this Court quash. [2-5] As has been written many times over, the common law writ of certiorari is an "extraordinary remedy" and is intended to be available "only in limited circumstances." Mintz Tmppman, P.A. v. Cozen O’Connor, PLC, 346 So. 3d 577, 579 n.6 (Fla. 2022) (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098-99 (Fla. 1987), superseded by statute on other grounds, § 768.72, Fla. Stat. (2021)); see also Nader v. Fla. Dep’t of High. Saf. & Motor Vek, 87 So. 3d 712, 722 (Fla. 2012). Appellate courts may grant a petition for certiorari only when the petitioner establishes "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Univ. of Fla, Bd. of Trs. v. Carmody, 372 So.3d 246, 252 (Fla. July 6, 2023). The last two prongs together are referred to as irreparable harm. Id. "A finding that the petitioning party has ‘suffered an irreparable harm that cannot be remedied on direct appeal’ is a ‘condition precedent to invoking a district court’s certiorari jurisdiction.’ " Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Ed/m. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (quoting Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998)). As such, appellate courts should analyze irreparable harm first to determine if jurisdiction exists before deciding whether the trial court’s order departed from the essential requirements of law. Carmody, 372 So.Sd at 252-53.
Lis pendens is a Latin term that means a suit pending. In re Borison, 226 B.R. 779, 782 (Bankr. S.D.N.Y. 1998); see also De Pass v. Chitty, 105 So. 148, 149 (Fla. 1925) ("The term 'lis pendens' literally implies a pending suit.").
[6] Absent from CPPB’s petition is any argument that it will suffer irreparable harm that cannot be remedied on direct appeal. Instead of identifying a material injury and arguing that the identified injury is irreparable, CPPB cites to Suarez v. KMD Construction, Inc., 965 So. 2d 184, 186 (Fla. 5th DCA 2007), for the proposition that "[c]ertiorari review is available for the trial court’s order denying the motion to dissolve a notice of lis pendens." In other words, CPPB argues that review of such orders is automatically available.
While CPPB’s position finds support among our sister courts, we decline to adopt a per se rule of reviewability. Sheehan v. Reinhardt ex rel. Estate of Warren, 988 So. 2d 1289, 1290 (Fla. 2d DCA 2008) ("Certiorari is the proper vehicle to review an order denying a motion to discharge a lis pendens."); Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So. 2d 758, 759 n.l (Fla. 3d DCA 2007) ("An order denying a motion to discharge a lis pendens is reviewable by certiorari."); Delta Aggregate, LLC v. Hermes Hialeah Warehouse, LLC, 266 So. 3d 248, 249 n.l (Fla. 4th DCA 2019) (exercising certiorari jurisdiction over order denying motion to discharge lis pendens); Carollo v. Henderson, 290 So. 3d 1088, 1089-90 (Fla. 5th DCA 2020) ("Certiorari review is available to review a trial court's order denying a motion to dissolve a notice of lis pendens.").
The Third District has also treated these types of proceedings as appeals of non-final orders that refuse to dissolve injunctions under Florida Rule of Appellate Procedure 9.130(a)(3)(B). See, e.g., Munilla v. Espinosa, 533 So. 2d 895, 895 n.l (Fla. 3d DCA 1988) ("An order to dissolve a Lis Pendens or require a bond has been reviewed by common law certiorari, however, it appears that the preferred method should be by non-final appeal and the order under review tested by the same principles as those relating to the issuance of the temporary injunction orders refusing to vacate same or matters relating to a bond or the sufficiency thereof." (internal citations omitted)).
[7,8] Instead, we agree with the First District’s conclusion in Landmark at Crescent Ridge LP v. Everest Financial, Inc., 219 So. 3d 218, 221 (Fla. 1st DCA 2017), wherein it acknowledged the potential financial harms that might result from a lis pendens but explained that generalized allegations of harm were insufficient to invoke a district court’s certiorari jurisdiction. Id. at 220. And this makes sense because a writ of certiorari is an "extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." Am. Educ. Enters., 99 So. 3d at 454. As such, we find that irreparable harm is not presumed in cases involving orders denying motions to dissolve lis pendens because this would create a new category of non-final orders reviewable on interlocutory appeal, which the Florida Supreme Court has expressly declined to do. See id. at 455 ("In Martin-Johnson, Inc., this Court expressed an unwillingness to ‘creat[e] a new category of non-final orders reviewable on interlocutory appeal.’ "). Accordingly, it was incumbent upon CPPB to explain how it would suffer irreparable harm absent immediate review of the order denying its motion to dissolve the lis pendens. Having failed to do so, we dismiss its petition.
In Crescent Ridge, the petitioner claimed that because of the pending lis pendens, it could not sell the subject property and was in danger of defaulting on its mortgages. 219 So. 3d at 219. Notably, the First District did not hold that irreparable harm could never ensue from the wrongful filing of a notice of lis pendens. See id. at 220. Rather, it reasoned that the subject petition failed "to clearly reflect how the potential harm is incurable by a final appeal." Id. (internal marks and citations omitted). Here, CPPB did not even make generalized allegations of harm. Given this complete pleading failure, we need not and do not speculate on what might constitute a clear demonstration of irreparable harm in this situation, and we do not join Crescent Ridge's suppositions about what this might and might not be. See id. at 220-21.
DISMISSED.
TRAVER, C.J., and MIZE, J., concur.