Opinion
No. V-112.
September 17, 1974. Rehearing Denied November 19, 1974.
Appeal from the Circuit Court, Putnam County, E.L. Eastmoore, J.
Shalle Stephen Fine, Miami, for appellants.
Thomas R. Spencer, Jr., Miami, and Albert George Siegel, Miami Beach, for appellees.
Appellants (plaintiffs below) take this interlocutory appeal from an order of the trial judge discharging a lis pendens on the motion therefor of Equitable Development Corporation, appellee (one of the defendants below). The notice of lis pendens was filed pursuant to Section 48.23, Florida Statutes. Subsection (3) of that statute provides as follows:
"When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic's lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions."
By the action sub judice, appellants contend they are entitled to be subrogated to the rights of Joseph Burnett, mortgagee, and are seeking foreclosure of the mortgage between said mortgagee and Equitable Development Corporation, mortgagor. While this is not a direct foreclosure of a mortgage, it is closely related thereto. The question of whether or not appellants are entitled to be subrogated is one of the primary issues in this suit. Under the alleged facts, the order of the trial court discharging the lis pendens was an abuse of discretion. Appellants are entitled to have the lis pendens remain in full force and effect until appellants' right to subrogation can be adjudicated.
Reversed and remanded with directions to vacate the order discharging the lis pendens.
SPECTOR, Acting C.J., concurs.
BOYER, J., dissents.
Appellants, who are the plaintiffs below, have taken an Interlocutory Appeal from an order entered by the Circuit Judge discharging a lis pendens on the motion of Equitable Development Corp., one of the defendants below, and appellee here.
Authority for the filing of a notice of lis pendens is found in Florida Statute 48.23. Subsection (3) of that statute provides as follows:
"When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic's lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions."
The initial pleading filed in the case sub judice does not show that the action is founded on a duly recorded instrument nor upon a mechanic's lien. Accordingly, in my opinion, the Circuit Judge was authorized by the statute to discharge the notice of lis pendens "as the court may grant and dissolve injunctions", which simply means in his discretion. The record before us does not demonstrate that the trial judge abused his discretion, therefore I am of the view that this Interlocutory Appeal should be dismissed.