Munilla v. Espinosa

533 So. 2d 895, 1988 WL 117616

• Court: District Court of Appeal of Florida
• Decided: November 8, 1988
• Docket: 88-1139
• Status: Published

Opinion

533 So.2d 895 (1988)

Maria MUNILLA, Madeleine Munilla and Ricardo Elortegui, Appellants,
v.
Evelio S. ESPINOSA and Henry Betancourt, Appellees.

No. 88-1139.

District Court of Appeal of Florida, Third District.

November 8, 1988.

Otto De Cordoba and J. Alfredo Armas, Miami, for appellants.

Mark A. Kamilar, Miami, and Steven D. Caster, Hollywood, for appellees.

Before BARKDULL and PEARSON, DANIEL and JORGENSON, JJ.

PER CURIAM.

We treat a timely petition for common law certiorari as a non-final appeal from an order extending a Lis Pendens and refusing to dissolve same or require a bond.^[1] 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. See Section 48.23(2), Florida Statutes (1987). The defendant having moved to dissolve the Lis Pendens or to require a bond (if extended subsequent to one year after it was originally filed) the trial court erred in granting the plaintiff's motion to extend without requiring a bond. We reverse so much of the trial court's order that extended the Lis Pendens without bond, with directions to either dissolve it or require the posting of a bond. Ross v. Breder, 528 So.2d 64 (Fla. 3d DCA 1988); Feinstein v. Dolene, Inc., 455 So.2d 1126 (Fla. 4th DCA 1984); Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984).

REVERSED AND REMANDED WITH DIRECTIONS.

NOTES

[1] An order to dissolve a Lis Pendens or require a bond has been reviewed by common law certiorari James v. Wolfe, 512 So.2d 954 (Fla. 2d DCA 1987); First Southern Development Corporation v. Chandler and Associates, Inc., 472 So.2d 878 (Fla. 1st DCA 1985); Finney v. Wonder Development Corporation, 392 So.2d 583 (Fla. 5th DCA 1980); Cooper v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980), however, it appears that the preferred method should be by non-final appeal and the order under review tested by the same principles as those relating to the issuance of the temporary injunction orders refusing to vacate same or matters relating to a bond or the sufficiency thereof.