De Mapia v. Equitable Development Corp.

302 So. 2d 418, 1974 Fla. App. LEXIS 8420

• Court: District Court of Appeal of Florida
• Decided: September 17, 1974
• Docket: No. V-112
• Status: Published

Opinions

McCORD, Judge.

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 pen-dens.

SPECTOR, Acting C. J., concurs. BOYER, J., dissents.