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reviewing an order requiring a bond to maintain a lis pendens pursuant to Florida Rule of Appellate Procedure 9.130(B)
Summary of this case from Panamericano of S.D. v. SuncoastOpinion
No. 94-1662.
March 15, 1995. Rehearing Denied August 2, 1995.
Appeal from the Circuit Court for Dade County, Philip Bloom, J.
Ruden, Barnett, McClosky, Smith, Schuster Russell, and Nancy Gregoire and John R. Keller and Terrence Russell, Ft. Lauderdale, for appellant.
Stuzin and Camner and Stanley A. Beiley, for appellee Little Arch Creek Properties, Inc.
Before BARKDULL, LEVY, and GREEN, JJ.
This case presents for our consideration the question of under what circumstances a bond must be posted by the proponent of a lis pendens, when the lis pendens is not based upon a duly recorded instrument or construction lien. Based upon our conclusion that the law of this state permits a bond to be readily available to protect the interests of a property owner who has had a lis pendens filed against their property, we affirm the trial court's imposition of such a bond.
I.
Appellee Little Arch Creek Properties, Inc. (hereafter "LACPI") owns a medical office building which it sought to sell. Appellant Medical Facilities Development, Inc. (hereafter "Medical Facilities") is part of an organization which purchases and operates medical buildings. In December of 1993, Medical Facilities made an offer to purchase the building from LACPI for 5.5 million dollars. A series of correspondence and communications among LACPI, Medical Facilities, and other parties followed, but the sale was never completed.
The offer was actually made by Medical Facilities' predecessor in interest, Medical Group Services, Inc.
Medical Facilities later filed suit against LACPI seeking specific performance of an alleged contract to purchase the building. Medical Facilities claimed that a purchase contract existed based upon the exchange of correspondence and communications. LACPI claimed, on the other hand, that the correspondence relied upon by Medical Facilities did not constitute an enforceable contract. This issue of whether a contract was formed between the parties is not before us at this time, and nothing in this opinion should be construed as a commentary on it.
During the pendency of this non-final appeal, a jury trial was held, and a verdict rendered in favor of LACPI.
The issue which is now properly before us grows out of the fact that prior to the filing of Medical Facilities' suit, LACPI had entered into a separate contract to sell the building to another entity for 6.5 million dollars. Therefore, after filing its suit, Medical Facilities also filed a notice of lis pendens against the property. The existence of this lis pendens has prevented LACPI from closing on its 6.5 million dollar contract to sell the building.
A lis pendens is "[a] notice filed on public records for the purpose of warning all persons that the title to certain property is in litigation. . . ." Blacks Law Dictionary 932 (6th ed. 1990).
Thereafter, LACPI moved to discharge the lis pendens, but the trial judge denied the motion. Alternatively, LACPI moved to require Medical Facilities to post a bond to protect LACPI in the event that it ultimately turns out that the lis pendens was wrongfully filed. The trial judge reserved ruling on this motion, and set it for hearing. At the hearing, the parties debated the proper legal standard which the trial judge should follow in determining whether a bond should be ordered. They also disagreed over the amount at which the bond should be set, if one was ordered.
The trial judge eventually ordered a bond of one million dollars to be posted by Medical Facilities "to pay such damages which LACP[I] may sustain as a result of the wrongful filing by Plaintiff of the lis pendens herein." Medical Facilities posted this bond, and has now brought this non-final appeal, challenging both LACPI's entitlement to a bond, as well as the amount of the bond. See Fla.R.App.P. 9.130(a)(3)(B); Roger Homes Corp. v. Persant Constr. Co., 637 So.2d 5, 6 n. 1 (Fla. 3d DCA 1994); Munilla v. Espinosa, 533 So.2d 895, 895 n. 1 (Fla. 3d DCA 1988).
II.
Florida Statutes section 48.23 governs the use of a lis pendens, and treats a lis pendens as one of two types. The first type exists where the action underlying the lis pendens is "founded" upon a duly recorded instrument or a construction lien. § 48.23(3), Fla. Stat. (1993). Courts have consistently held that a bond is not available in conjunction with this type of lis pendens. See Florida Peach Corp. of Am., Int'l Div., S.A. v. Lurie, 411 So.2d 339, 340 (Fla. 5th DCA 1982); Chapman v. L N Grove, Inc., 244 So.2d 154, 157 (Fla. 2d DCA 1971). The other type of lis pendens, which is the type at issue in this case, exists where the underlying action is not founded on a duly recorded instrument or construction lien. § 48.23(3), Fla. Stat. (1993). As to this second type of lis pendens, the statute authorizes the trial court to "control and discharge the notice of lis pendens as the court may grant and dissolve injunctions." § 48.23(3), Fla. Stat. (1993). Unfortunately, this reference to the law of injunctions has resulted in the application of different legal standards when determining the entitlement to a lis pendens bond.
The statute actually refers to a duly recorded instrument or "a lien claimed under part I of chapter 713." Part I of chapter 713 is entitled "Construction Liens." The term "construction lien" is synonymous with the more commonly used term "mechanics' lien." For clarity, we will use the term "construction lien."
III.
The caselaw in the District Courts of Appeal reflects three different approaches to determining whether a lis pendens bond is appropriate when the action underlying the lis pendens is not founded upon a duly recorded instrument or construction lien.
The first approach is the most stringent, and requires that the party requesting the bond make a showing that the bond is necessary to protect them from irreparable harm. See Sparks v. Charles Wayne Group, 568 So.2d 512, 517 (Fla. 5th DCA 1990) ("[B]efore a bond is required the land owner must show that he will suffer irreparable harm in the event the lis pendens is unjustified. . . ."); Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984) (where the action underlying a lis pendens is not based on a recorded instrument, a titleholder could demand a bond "if he could show the danger of irreparable harm in the event the lis pendens was unjustified."); Florida Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984) (bond is mandatory if irreparable harm would result without it); Glusman v. Warren, 413 So.2d 857, 858 (Fla. 4th DCA 1982) (same).
The second approach is more lenient, and leaves the setting of a bond to the trial judge's discretion, which should be exercised after considering whether the lis pendens will place a "cloud on the title." See Mohican Valley, Inc. v. MacDonald, 443 So.2d 479, 481 (Fla. 5th DCA 1984) ("A lis pendens is permitted and proper in these cases but the trial judge has the authority and discretion to require a bond to indemnify the defendants in case the lawsuit fails. Like injunctions, which have the potential of irreparable injury to a wrongly sued defendant, a judge should set a reasonable bond when the reasonable exercise of his discretion requires. . . . The test is simple: if the lis pendens places a cloud on the title that did not exist then a bond should be considered."); Andre Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984) (trial court has discretion to set a bond); CAM Corp. of Broward v. Goldberger, 368 So.2d 56, 57 (Fla. 4th DCA) ("[T]he fixing of the amount of an injunction bond is a discretionary matter. Clearly the requirement of a bond in an injunction proceeding is within the sound discretion of the trial court. This same rationale extends to the case presented here involving a lis pendens based on a contract."), cert. denied, 378 So.2d 343 (Fla. 1979); see also Bailey v. Rolling Meadow Ranch, Inc., 566 So.2d 63, 65 (Fla. 5th DCA 1990) (restates the "cloud on the title" test, but then goes on to hold that irreparable harm existed, and remanded for an evidentiary hearing on the bond amount).
The third and final approach to a lis pendens bond simply treats the bond as being mandatory. See Porter Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989) (where a lis pendens is not founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the posting of a bond."); Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n. 1 (Fla. 3d DCA 1988) ("The plaintiff's original claim not arising out of a document entitled to be recorded, . . . it would have been appropriate, upon motion, to require a bond, the same as required in the issuance of a temporary injunction."); Munilla v. Espinosa, 533 So.2d at 895 (Fla. 3d DCA 1988) ("The action in the trial court not being 'founded' on a 'recorded instrument' or 'mechanic's lien', it was error for the trial court not to require the posting of a bond."); Nero v. Nero, 475 So.2d 1361, 1361-62 (Fla. 5th DCA 1985) (where the underlying cause of action is not based on a recorded instrument, "petitioners are entitled to such a bond to indemnify them from damages resulting from the wrongful imposition of the notice of lis pendens." (footnote omitted)); Sunrise Point, Inc. v. Foss, 373 So.2d 438, 439 (Fla. 3d DCA) (a bond is required where a lis pendens is not based upon a recorded instrument), cert. denied, 374 So.2d 99 (Fla. 1979).
This third approach, which makes a bond mandatory, is the one adhered to in this District. Machado, 537 So.2d at 607 n. 1; Munilla, 533 So.2d at 895; Sunrise Point, 373 So.2d at 438. However, Medical Facilities has argued that the Supreme Court's subsequent language in Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993), has changed the law, and now requires that the imposition of a bond be predicated upon a showing of irreparable harm. We disagree with Medical Facilities' reading of Chiusolo.
IV.
In Chiusolo v. Kennedy, the Supreme Court resolved a certified conflict between the Fourth and Fifth Districts over the issue of who bears the burden of proof when a titleholder seeks to discharge a notice of lis pendens. Chiusolo stands for the proposition that the burden of proof in a hearing to discharge a lis pendens is upon the proponent of the lis pendens, who must show a "fair nexus" between the property and the lawsuit. Chiusolo, 614 So.2d at 492. However, after resolving this issue, the opinion goes on to state the following: "We agree with the observation in Sparks, 568 So.2d at 517, that the statutory reference to injunctions exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond where needed to protect the former from irreparable harm." Chiusolo, 614 So.2d at 492-93 (emphasis added, footnote omitted). It is this language which Medical Facilities contends makes a bond available only upon a showing of irreparable harm.
We note that the entitlement to the lis pendens is not at issue here; only the entitlement to a bond is.
This above-quoted language, however, did not change the law of this District, because this language was obiter dictum, and is not binding precedent upon this Court. "[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple." Bunn v. Bunn, 311 So.2d 387, 389 (Fla. 4th DCA 1975). A careful review of both the Supreme Court's opinion and the Fifth District's en banc opinion reveal that the entitlement to a lis pendens bond was simply not at issue in Chiusolo. The trial court had discharged a lis pendens without holding an evidentiary hearing, and the only issue for review was which party should have the burden of proof on remand. Chiusolo v. Kennedy, 589 So.2d 420, 421-22 (Fla. 5th DCA 1991) (en banc), approved in part, quashed in part, 614 So.2d 491 (Fla. 1993). Logically, the entitlement to a lis pendens bond could not possibly have been an issue, because there had not yet been a determination that a lis pendens was appropriate. For either the Fifth District or the Supreme Court to have considered the propriety of a bond would have been the classic example of "putting the cart before the horse."
In her dissent, Judge Green agrees that the Chiusolo language is dictum.
Therefore, since the only possibly relevant Supreme Court language in Chiusolo regarding the issue now before us is dictum, we consider this language persuasive, non-binding authority. See Horton v. Unigard Ins., Co., 355 So.2d 154, 155 (Fla. 4th DCA 1978) ("The rule seems to be that dictum in an opinion by the Supreme Court of Florida, while not binding as precedent, is persuasive because of its source."), cert. dismissed, 373 So.2d 459 (Fla. 1979); accord Continental Assurance Co. v. Carroll, 485 So.2d 406, 408 (Fla. 1986); Aldret v. State, 592 So.2d 264, 266 (Fla. 1st DCA 1991), quashed on other grounds, 606 So.2d 1156 (Fla. 1992); O'Sullivan v. City of Deerfield Beach, 232 So.2d 33, 35 (Fla. 4th DCA 1970); Milligan v. State, 177 So.2d 75, 76 (Fla. 2d DCA 1965); see also Ard v. Ard, 395 So.2d 586, 587 (Fla. 1st DCA 1981) (Supreme Court dicta does not relieve District Court of Appeal from the obligation of considering the merits of an issue), modified on other grounds, 414 So.2d 1066 (Fla. 1982). Because we are not persuaded by the Chiusolo opinion that the irreparable harm approach is the better view, we adhere to our prior decisions which made the posting of a bond mandatory.
V.
There are two main reasons why a bond should be required when a party files a lis pendens and the underlying lawsuit is not founded upon a duly recorded instrument or construction lien. One of these reasons is based upon Florida Statutes section 48.23(3), and the other upon simple fairness.
A.
As pointed out earlier, a lis pendens, such as is involved in this case, is to be controlled and discharged as would an injunction. § 48.23(3), Fla. Stat. (1993); Porter Homes, 540 So.2d at 196. Therefore, when determining the entitlement to a lis pendens bond, it is only fitting to draw an analogy to the entitlement to a temporary injunction bond. See Roger Homes, 637 So.2d at 6 n. 1. When a temporary injunction is granted, the party who has been enjoined is entitled to a bond as a matter of right in order to cover costs and damages which may result from the injunction if it later turns out to have been wrongfully entered. See Fla. R.Civ.P. 1.610(b); Conant v. Armada Key West Ltd. Partnership, 610 So.2d 640, 641 (Fla. 3d DCA 1992); Cutler Creek Village Townhouse Ass'n v. Cutler Creek Village Condominium Ass'n, 584 So.2d 103, 103 (Fla. 3d DCA 1991); Cushman Wakefield, Inc. v. Cozart, 561 So.2d 368, 370 (Fla. 2d DCA 1990); Tabsch v. Nojaim, 548 So.2d 851, 853 (Fla. 3d DCA 1989). The analogy here is obvious: If a temporary injunction carries with it the right to a bond, then a lis pendens (not founded upon a duly recorded instrument or construction lien) should also carry with it the right to a bond. While irreparable harm must be shown in order to get the injunction itself, it need not be shown to get an injunction bond, and therefore, it need not be shown to get a lis pendens bond either.
The analogy must be to a temporary injunction, rather than a permanent injunction, because a bond is normally not required once a permanent injunction has been entered. International Longshoremen's Ass'n, Local 1416 v. Eastern S.S. Lines, 206 So.2d 473, 474 (Fla. 3d DCA 1968); 29 Fla.Jur.2d Injunctions § 79, at 744 (1981). Moreover, a lis pendens is more analogous to a temporary injunction, because both serve to preserve the status quo pending litigation of an underlying claim.
B.
Moreover, fairness requires that a bond be posted to protect the interest of the titleholder. A lis pendens alerts third-parties of a potential claim upon a piece of property. Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994); Ross v. Breder, 528 So.2d 64, 65 (Fla. 3d DCA 1988); Berkley Multi-Units, Inc. v. Linder, 464 So.2d 1356, 1357 (Fla. 4th DCA 1985) (en banc); Procacci v. Zacco, 402 So.2d 425, 427 (Fla. 4th DCA 1981); Brown v. Semple, 204 So.2d 229, 233 (Fla. 3d DCA 1967). A lis pendens primarily serves a notice function, by protecting third-parties from unknowingly "purchasing a lawsuit." See Chiusolo, 614 So.2d at 492 n. 1 ("Thus, lis pendens exists at least in part to prevent third-party purchasers from 'buying' a lawsuit when they purchase the property."). In so doing, the lis pendens also protects the rights of its proponent, by reducing the chances that a "bona fide purchaser" will somehow extinguish any equitable claim the proponent may have upon the property involved in the litigation. See Sparks, 568 So.2d at 517-18 ("The function of the notice is to preserve the lien against intervening liens or purchasers pending completion of the law suit. . . . Without the protection of the lis pendens, the [proponent's] equitable lien . . . could be wiped out by a sale to a subsequent bona fide purchaser."); accord Acapulco Constr., 645 So.2d at 183.
However, the effect of a lis pendens upon the titleholder is more immediate and certain. By essentially putting a red-flag into the owner's chain of title, a lis pendens greatly limits the marketability of the property. The practical effect of a lis pendens is that an owner oftentimes cannot sell or mortgage their property, as has happened in this case. If the proponent of the lis pendens turns out not to have had a valid claim against the property, the adverse economic consequences to the titleholder are obvious. Because of this possibility, fairness requires that a bond be in place to ensure that the titleholder be compensated for any costs or damages which are wrongfully incurred. An owner who has been the subject of a wrongfully filed lis pendens should not be required to file a separate lawsuit in order to be made whole; a bond should provide the needed remedy.
VI.
Turning to the case sub judice, we find that the trial judge properly required the posting of a bond. Furthermore, we conclude that the trial judge did not abuse his discretion in setting the amount of the bond at one million dollars. See Cozart, 561 So.2d at 369 ("[T]he amount of a bond is typically a matter within the trial court's sound discretion. . . ."); Metropolitan Dade County v. Parkway Towers Condominium Ass'n, 281 So.2d 68, 69 (Fla. 3d DCA 1973) ("[T]he fixing of the amount of an injunction bond is a discretionary matter."), cert. discharged, 295 So.2d 295 (Fla. 1974). A one million dollar bond was clearly not an abuse of discretion, since this represents the difference between Medical Facilities' offer for the property (5.5 million), and the subsequent offer LACPI received (6.5 million).
We need not address the evidentiary issue which has also been raised by Medical Facilities. That issue related to evidence which the trial judge obviously chose not to rely upon in setting the bond at only one million dollars, rather than at a higher figure as LACPI had requested.
The trial court is in all respects affirmed.
Affirmed.
I concur with Judge Levy's opinion and write only to point out the following:
Section 48.23(3), Fla. Stat. (1993), authorizes a trial court to treat a lis pendens, such as the one in this case, the same as a temporary injunction. A temporary injunction is only issued when a plaintiff has no adequate remedy at law, i.e. ascertainable damages, or in other words, irreparable damage or injury.
The dissent, and the authority cited therein, seems to miss the point as to who must suffer irreparable damages. A showing of irreparable damage is essential for a plaintiff to secure a temporary injunction, Hutchinson v. Kimzay, Inc., 637 So.2d 942 (Fla. 5th DCA 1994); Wasserman v. Gulf Health, Inc., 512 So.2d 234 (Fla. 2d DCA), rev. denied, 518 So.2d 1279 (Fla. 1987), and where damages are ascertainable, there is no right to a temporary injunction. The State of Florida, Agency for Health Care Admin. v. Continental Car Services, Inc., 650 So.2d 173 (Fla. 2d DCA 1995); Minimatic, Inc. v. Westinghouse Elect. Corp., 494 So.2d 303 (Fla. 4th DCA 1986); Stading v. Equilease Corp., 471 So.2d 1379 (Fla. 4th DCA 1985). When a trial court believes that irreparable harm will result, it may grant a plaintiff extraordinary relief in the form of a temporary injunction. When such relief is granted a defendant is entitled to protection against any loss occasioned by said relief, if it is ultimately determined that the temporary injunction was wrongfully granted. Parker Tampa Two, Inc. v. Somerset Development Corp., 544 So.2d 1018 (Fla. 1989); Cutler Creek Village Townhouse Ass'n., Inc. v. Cutler Creek Village Condo. Ass'n., Inc., 584 So.2d 103 (Fla. 3d DCA 1991); Calder Race Course, Inc. v. Gaitan, 430 So.2d 975 (Fla. 3d DCA 1983); Aviation Investments, Inc. v. Johanson, 177 So.2d 369 (Fla. 3d DCA 1965); Roger Dean Chevrolet, Inc. v. Painters, Decorators Paperhangers Local No. 452, 155 So.2d 422 (Fla. 2d DCA 1963). A defendant's entitlement to protection from loss or damages occasioned by a wrongful temporary injunction is secured by requiring the plaintiff to post a injunction bond. Parker Tampa Two; Neal v. Neal, 636 So.2d 810 (Fla. 1st DCA 1994); Conant v. Armada Key West Limited Partnership, 610 So.2d 640 (Fla. 3d DCA 1992); Cutler Creek; Cushman Wakefield, Inc. v. Cozart, 561 So.2d 368 (Fla. 2d DCA 1990). The amount of the injunction bond should be sufficient to secure the defendant for any loss or cost incurred as a result of the wrongful issuance of the temporary injunction. Shea v. Central Diagnostic Services, Inc., 552 So.2d 344 (Fla. 5th DCA 1989); Minimatic. The defendant's right to an injunction bond should not be conditioned upon defendant demonstrating an irreparable harm, rather it should be conditioned upon the defendant demonstrating the potential loss or damages it will incur if it is determined that the temporary injunction was wrongly imposed. Neal; Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984). Since a defendant's recovery, against a plaintiff, for the wrongful issuance of a temporary injunction is limited to the face value of the injunction bond, Parker Tampa Two; Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047 (Fla. 2d DCA 1993); Shea, a defendant may always seek to modify an injunction bond by showing a potential for loss or damages in excess of the amount of the bond, Parker Tampa Two; Cushman; Wasserman; Minimatic.
Respectfully, I cannot agree with the majority opinion.
The recent Supreme Court decision of Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993) makes clear that the purpose of a lis pendens is to put the world on notice that the property is the subject of litigation which could affect its title. A party asking for a lis pendens need only show a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. Chiusolo, 614 So.2d at 492. It is the lis pendens bond which the Supreme Court seemed to analogize to temporary injunctions:
[T]he statutory reference to injunctions exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond where needed to protect the former from irreparable harm. The bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties.Id. at 493 (emphasis added, footnote omitted).
I find this statement, admittedly dicta, not only to be persuasive but to be totally in accord with well-established law that irreparable harm cannot be established by mere monetary loss. Barclays Am. Mtg. Corp. v. Holmes, 595 So.2d 104, 105 (Fla. 5th DCA 1992) ("However, irreparable harm does not exist where the potential loss is compensable by money damages."); De Leon v. Aerochago, S.A., 593 So.2d 558, 559 (Fla. 3d DCA 1992) ("Injunctive relief may not be used to enforce money damages. . . ."); Hiles v. Auto Bahn Fed'n, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) (no irreparable harm because the loss can be compensated by money damages).
The majority's statement that "[w]hile irreparable harm must be shown in order to get the injunction itself, it need not be shown to get an injunction bond" is puzzling. As a general rule, a temporary mandatory injunction is proper only where irreparable harm will otherwise result, the party has a clear legal right thereto, and such party has no adequate remedy at law. Wilson v. Sandstrom, 317 So.2d 732, 736 (Fla. 1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642, (1976). Additionally, Florida Rule of Civil Procedure 1.610(b) mandates that before a temporary injunction issues, that a bond be posted. So in essence, a party does indeed have to show, among other things, irreparable harm in order to be required to post an injunction bond. That is, without a showing of irreparable harm, there is no injunction and hence, no injunction bond.
I interpret the Supreme Court's statement, with its recurrent emphasis on bonds being permitted only in appropriate cases to protect a defendant from irreparable harm, to mean that, as with any temporary injunction, something more than simple money damages must be shown in order to demonstrate irreparable harm in a lis pendens case also. Bonds would be "appropriate" in every lis pendens case if "irreparable harm" was defined by money damages only.
An example of irreparable harm in a lis pendens case is found in C.W. Bailey v. Rolling Meadow Ranch, Inc., 566 So.2d 63 (Fla. 5th DCA 1990) where it was alleged that a joint venture agreement was breached and a lis pendens lien was placed on fifty bulls. The bulls were allegedly purchased with money from the joint venture and both parties to this action claimed title to them. The court noted that the bulls would need feed, pasture, veterinary services and the like during the pendency of the lawsuit and that some of the bulls might die during lengthy court proceedings. The court stated that "time is not on the side of living things. Time alone is evidence of irreparable harm in this case." Id. at 65.
In the instant case, the evidence adduced at the evidentiary hearing on the question of irreparable harm showed that LACPI was facing complex financial problems with this building, including losing the property through foreclosure by a trustee. Medical Facilities made an offer to purchase the building for $5.5 million. For whatever reason, the sale was never completed. LACPI entered into a contract to sell the building for $6.5 million to Mt. Sinai Medical Center. Medical Facilities then filed the instant lawsuit seeking specific performance of its alleged contract to purchase the building and filed a lis pendens against the property. LACPI claimed that the lis pendens prevented it from closing on the contract with Mt. Sinai.
It seems to me that, under the language of Chiusolo, the bond in this case was inappropriate for two reasons. First, given the financial crisis surrounding the property, it is merely speculative to state that but for the lis pendens, the contract with Mt. Sinai would have closed. A reasonable inference may be drawn from the record evidence that Mt. Sinai might have encountered difficulties in purchasing the property also. Second, if one regards the Mt. Sinai contract to purchase the building as an adequate measure of damages, then LACPI's "irreparable harm" was solely monetary in nature and there was an adequate remedy at law if it were later determined that the lis pendens was improperly placed on the property.
I would reverse the imposition of the lis pendens bond.