Tag Archives: writ of certiorari

DENIAL OF MOTION TO DISSOLVE LIS PENDENS DOES NOT AUTOMATICALLY CREATE BASIS FOR CERTIORARI RELIEF

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A recent appellate decision out of Florida’s Sixth District Court of Appeal holds that a trial court’s denial of motion to dissolve a lis pendens does NOT automatically give a basis for a petition for a writ of certiorari. Generalized allegations of “irreparable harm” to support the basis for the petition for writ of certiorari are insufficient.  Rather, the party moving for the petition MUST clearly demonstrate the irreparable harm; otherwise, the petition for writ of certiorari will fail.

A lis pendens has legal significance.  It is a recorded document that notifies the world that there is a pending lawsuit dealing with the real property at issue.  This is important because who wants to buy a piece of property that is subject to litigation – that would be a risky transaction!

In CPPB, LLC v. Taurus Apopka City Center, LLC, 48 Fla.L.Weekly D1837a (Fla. 6th DCA 2023), a dispute arose as to a real estate transaction. The owner sold a parcel to a buyer.  The owner also owned three adjacent parcels. As part of the transaction, the buyer agreed to perform certain improvements to all of the parcels including those adjacent parcels owned by the owner. The owner deposited funds in escrow for purposes of its share of the improvements. A payment dispute arose regarding the improvements and the buyer sued the seller. The seller filed a counterclaim to rescind the transaction along with a recorded lis pendens on the parcel purchased by the buyer. The buyer moved to dissolve the lis pendens which the trial court denied. This prompted the appeal – a petition for a write of certiorari based on the trial court’s denial of the motion to dissolve the lis pendens.

The Sixth District explained that a petition for a writ of certiorari is an extraordinary remedy which may ONLY be granted on when the following are established:

“(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.” “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.’ ” 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.

CPPB, supra (internal citations omitted).

Here, the Sixth District declined to adopt a rule that a petition for certiorari relief was always available when a trial court declined to dissolve a lis pendens.  Instead, the Sixth District held:

[W]e 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.  Accordingly, it was incumbent upon [the seller] 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.

CPPB, supra (internal citations omitted).

This ruling is clearly not what a party dealing with the denial of a lis pendens want to hear. Or deal with. However, the takeaway here is that if moving to dissolve a lis pendens, make sure to establish irreparable harm to support the certiorari relief.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

DISCOVERY ON UNRELATED PROJECTS IS IRRELEVANT (NOT REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE)

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imagesI love the Third District Court of Appeal’s recent ruling in a discovery dispute in Kobi Karp Architecture & Interior Design, Inc. v. Charms 63 Noble, LLC, 40 Fla. L. Weekly D1428a (Fla.3d DCA 2015), because its focuses on irrelevant discovery in a construction dispute.

 

In this case, an architect entered into a contract to perform construction administration services.  The contract included certain basic services (covered by the lump sum amount) and certain optional additional services (that would result in additional compensation to the architect). One such optional additional service was the architect’s responsibility to prepare as-built plans.

 

After construction, the City of Miami required the owner to submit as-built plans since the completed construction deviated from the permitted plans.  (This is a common occurrence as the completed construction rarely corresponds exactly with the permitted plans.)   The owner wanted the architect to prepare the as-built plans for free.  The architect refused since preparing as-built plans was an optional additional service entitling the architect to additional compensation.  Oddly, instead of the owner working with the architect on a price for this additional service, the owner sued the architect for breach of contract for failing to prepare the as-built plans as a basic service.

 

The owner decided to subpoena for documents six of the architect’s clients (other owners on unrelated construction projects) for numerous documentation including contracts and communications.  The owner wanted to establish that it was the architect’s custom and usage to prepare as-built plans as a basic service with other owners. (What?!?) Despite objections and a motion for protective order from the architect, the trial court allowed the owner to move forward and subpoena these non-party owners for documents.  The architect moved for a writ of certiorari arguing that the court order allowing the owner to pursue this discovery departs from essential requirements of the law resulting in material irreparable injury that cannot be remedied on an appeal at the conclusion of the case.

 

The Third District agreed with the architect and quashed the trial court’s order allowing this discovery to take place.  This appears to absolutely be the right ruling from my perspective.  An architect’s contract or documents with any other owner on unrelated projects have no bearing on the contract at-issue.  These other agreements or documents do not dictate what an architect agreed to do as a basic service for the instant project.  They are irrelevant. What a party bargains for on one project may likely be different than what that party bargains for on another project (hence, the definition of a negotiated contract).

 

Although a party in litigation can pursue discovery reasonably calculated to lead to the discovery of admissible evidence (a very liberal standard), this does not mean a party has carte blanche to pursue completely irrelevant discovery or use discovery as a sword to harass another party.  Here, the owner requiring the architect’s clients on unrelated projects to produce voluminous documentation would result in irreparable material injury.  The Third District held that it was at a loss to see how documents from the architect’s other clients could ever be relevant (or reasonably calculated to lead to the discovery of admissible evidence) in this instant dispute.

 

One of the reasons I like this ruling is because there are times a party in a construction dispute seeks discovery on unrelated projects that have no bearing on the construction project in dispute.  Oftentimes, this is done simply because the party pursuing the discovery knows it will be an aggravation to its opponent to produce this documentation.  But, besides the aggravation, what occurs on one project typically has no significance except to that particular project.  A contract for one project, and what occurs on that project, has no significance to any other project (especially a project for a different owner).  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.