       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2776
                         Lower Tribunal No. 17-21356
                             ________________


                              Senia Rodriguez,
                                    Appellant,

                                        vs.

                        Luis Villavicencio Guerra,
                                    Appellee.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Dennis J. Murphy, Judge.

     Navarro Hernandez, P.L., and Luis F. Navarro, for appellant.

     Law Offices of E. I. Friedman, P.A., and Eyal I. Friedman, for appellee.


Before EMAS, SCALES, and LINDSEY, JJ.

     SCALES, J.
      Appellant, defendant below, Senia Rodriguez challenges a non-final order

that denied Rodriguez’s Motion to Discharge Lis Pendens or in the Alternative to

Set Lis Pendens Bond (“Motion”). Finding no abuse of discretion, we affirm.1

      Appellee, plaintiff below, Luis Villavicencio Guerra, recorded a notice of lis

pendens contemporaneously with Guerra’s lawsuit seeking to rescind a quitclaim

deed, purporting to transfer Guerra’s property to Rodriguez.2 Rodriguez set her

Motion as a non-evidentiary hearing on the trial court’s open motion calendar. As

is apparent from the transcript of the hearing, the trial court concluded that

Guerra’s claims3 were not “founded on a duly recorded instrument” so as to

1 While appellant challenged the subject non-final order via appeal, we recognize
that recent decisions of this Court indicate that the appropriate procedure for
reviewing non-final orders granting or discharging a lis pendens, and non-final
orders relating to lis pendens bonds, is via a certiorari petition. See Bankers
Lending Servs., Inc. v. Regents Park Invs., LLC, 225 So. 3d 884, 885 (Fla. 3d
DCA 2017); 100 Lincoln Rd. SB, LLC v. Daxan 26 (FL), LLC, 180 So. 3d 134,
136 (Fla. 3d DCA 2015). These recent decisions, though, did not abrogate prior
decisions of this Court concluding that we have appellate jurisdiction to review
such non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(B).
See Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So. 2d 182, 183 (Fla. 3d
DCA 1994); 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).
The result in this case is not dependent upon the review mechanism, and would
have been the same had appellant filed a petition for certiorari relief rather than an
appeal.
2After Guerra executed a power of attorney purportedly authorizing Rodriguez to
execute documents on Guerra’s behalf, Rodriguez, allegedly acting pursuant to the
power of attorney, executed the subject quitclaim deed.
3Count I of Guerra’s Amended Complaint sought to rescind the subject quitclaim
deed, and Count II sought to quiet title in the subject property to Guerra.

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authorize Guerra to record a lis pendens as a matter of right. See § 48.23(3), Fla.

Stat. (2017); Am. Legion Cmty. Club v. Diamond, 561 So. 2d 268, 272 (Fla. 1990)

(concluding that an action to set aside a conveyance of real property for fraud was

not an action “founded on the terms and provisions” of the recorded instrument,

“but on the circumstances surrounding the execution” of the recorded instrument;

therefore, the plaintiff was not entitled to a lis pendens as a matter of right).

Hence, as required by section 48.23(3), the trial court adjudicated Rodriguez’s

motion as if Guerra’s notice of lis pendens was a temporary injunction. § 48.23(3),

Fla. Stat. (2017) (“When the pending pleading does not show that the action is

founded on a duly recorded instrument . . . the court shall control and discharge the

recorded notice of lis pendens as the court would grant and dissolve injunctions.”);

Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So. 2d 915, 917

(Fla. 1996) (concluding that, where an action is not based on a duly recorded

instrument, the proponent is entitled to maintain a lis pendens where the proponent

shows a “fair nexus between the property and the dispute”).

      While not entirely clear from the hearing transcript, it does appear that the

trial court determined that Guerra had met his burden of establishing a fair nexus

between the subject property and the underlying action.          Upon finding that

Rodriguez had not satisfied her burden of demonstrating irreparable harm, the trial

court then exercised its discretion not to impose a requirement of a bond. Med.



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Facilities Dev., Inc., 675 So. 2d at 917-18 (“[T]he decision of whether a lis-

pendens bond should be posted rests within the discretion of the trial judge. . . .

Our holding today specifically rejects the interpretation that the statutory reference

to injunctions requires the lis-pendens proponent to post a bond in every case.”).

While a better practice may have been for the trial court to schedule an evidentiary

hearing on the bond issue, we can hardly conclude that the trial court abused its

discretion in this regard when Rodriguez scheduled the hearing on her Motion as a

non-evidentiary hearing4 on the trial court’s open motion calendar.

      Affirmed.




4In advance of the hearing, as exhibits to her verified supplemental memorandum
of law in support of her Motion, Rodriguez provided the trial court with numerous
documents and an affidavit that purported to support her claim of irreparable harm.
The hearing transcript reflects that Rodriguez’s exhibits were discussed at the
hearing immediately prior to the trial court making its ruling.


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