Third District Court of Appeal

State of Florida 

Opinion filed June 30, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1775

Lower Tribunal No. 16-0495-P

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David Petkovich, et al.,

Petitioners,

vs.

Sandy Point Condominium Apartments Association, Inc.,

Respondent.

On Petition for Writ of Certiorari from the Circuit Court for Monroe 

County, Luis M. Garcia, Judge.

Annesser Armenteros, PLLC and John W. Annesser, and Megan 

Conkey Gonzalez, for petitioners.

Hershoff Lupino & Yagel, LLP and James S. Lupino, and Jessica 

Rothenberg, for respondent.

Before SCALES, LINDSEY, and MILLER, JJ. 

MILLER, J.
2

The narrow issue presented in this petition for writ of certiorari is 

whether a lawsuit seeking to invalidate the chain of title evidencing the 

submission of certain real property to the ownership and control of a 

condominium is founded on a duly recorded instrument, as provided in 

section 48.23, Florida Statutes.

1 Relying upon the Florida Supreme Court’s 

holding in the seminal case of American Legion Community Club v. 

Diamond, 561 So. 2d 268 (Fla. 1990), we conclude the relief sought in the 

action below rests not on the terms and provisions of recorded documents,

but rather the circumstances surrounding execution. 

BACKGROUND

After acquiring two condominium units located in Islamorada, Florida,

petitioners filed suit against respondent, Sandy Point Condominium 

Apartments Association, Inc., in the lower tribunal. In the operative 

complaint, citing the omission of essential signatures in documents relating 

to the conveyance of the disputed properties, petitioners asserted ownership 

over areas designated by the Association as common elements of the 

condominium. 

1 We review an order discharging a lis pendens in certiorari. See Rodriguez 

v. Guerra, 254 So. 3d 521, 521 n.1 (Fla. 3d DCA 2018) (citations omitted). 
3

The Association counterclaimed, seeking to reform the documents and 

quiet title. Petitioners filed a notice of lis pendens, and the parties engaged 

in discovery. After the facts were sufficiently developed, the trial court issued 

an interlocutory summary judgment order. The order acknowledged a defect 

in the conveyance of the properties, occasioned by “missing signatures

and/or a missing page,” and granted summary judgment in favor of the 

Association as to its claim for reformation. Shortly after the order was 

rendered, the court discharged the lis pendens. The instant petition ensued.

ANALYSIS

Under the doctrine of lis pendens, “[p]ersons acquiring an interest in 

property that is a subject of litigation are bound by, or entitled to the benefit 

of, a subsequent judgment.” Golden State Bottling Co., Inc. v. N.L.R.B., 414 

U.S. 168, 179 (1973). The doctrine “is of ancient origin . . . [and] was 

formulated and promulgated by Sir Francis Bacon in 1618, as the twelfth of 

his Ordinances in Chancery.”2 Gardner Smith, The Doctrine of Lis Pendens 

in Legal Actions Affecting Land, 48 Bulletin Law Series 31, 31 (1935). 

However, “[e]ven before that date, the principle was recognized by the 

2 “Bacon's Ordinances in Chancery, which he promulgated in 1618, 

governed Chancery proceedings [in England] until the nineteenth century.” 

Allen D. Boyer, Light, Shadow, Science, and Law, 92 Mich. L. Rev. 1622, 

1634 (1994).
4

courts.” Id. Indeed, in referring to the doctrine, Chancellor James Kent, a 

leading legal scholar in the formative years of our country and the first 

professor of law at Columbia,

3 remarked, “it would be impossible, as I 

apprehend it, to mention any rule of law which has been established upon 

higher authority or with more uniform sanction.” Id. (quoting Murray v. 

Ballou, 1 Johns. Ch. 566 (1815)).

In accord with these principles, under Florida law, a notice of lis 

pendens enables the court in a pending suit “to deal with the property[,] . . . 

preserve its jurisdiction over the subject matter,” Avalon Assocs. of Del. Ltd. 

v. Avalon Park Assocs., Inc., 760 So. 2d 1132, 1134 (Fla. 5th DCA 2000)

(citation omitted), and protect the “proponent, by preventing intervening liens 

that could impair or extinguish claimed property rights.” Taylor v. Steckel, 

944 So. 2d 494, 497 (Fla. 3d DCA 2006) (citations omitted); see Warren 

Cnty. v. Marcy, 97 U.S. 96, 105 (1877) (“It is a general rule that all persons 

dealing with property are bound to take notice of a suit pending with regard 

to the title thereto, and will, on their peril, purchase the same from any of the 

parties to the suit.”); Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 

1251 (Fla. 5th DCA 2010) (The term lis pendens “literally means a pending 

3 See John H. Langbein, Chancellor Kent and the History of Legal Literature, 

93 Colum. L. Rev. 547, 548 (1993).
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lawsuit, and is defined as the jurisdiction, power, or control that courts 

acquire over property involved in a pending suit.”) (citation omitted).

Section 48.23, Florida Statutes, confers control over such notices upon 

the courts. As relevant here, if a lawsuit is premised upon a duly recorded 

instrument, the plaintiff is entitled to maintain a lis pendens “as a matter of 

right” until the action has been concluded, regardless of “the merits of [his or 

her] claims to the subject realty.” Moss v. Arca Dev., Inc., 687 So. 2d 70, 70 

(Fla. 3d DCA 1997). Conversely, “[w]hen the pending pleading does not 

show the action is founded upon a duly recorded instrument[,] . . . the court 

shall control and discharge the recorded notice of lis pendens as the court 

would grant and dissolve injunctions.” § 48.23(3), Fla. Stat. 

Historically, whether an action was founded upon a duly recorded 

instrument was far from clear. A majority of Florida courts distinguished 

between actions to enforce rights under a written document and those

seeking to rescind or void a conveyance, finding the former were founded 

upon duly recorded instruments, while the latter were not. See 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); Kent v. Kent, 431 So. 2d 279 (Fla. 5th DCA 

1983); Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982); Glusman v. 
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Warren, 413 So. 2d 857 (Fla. 4th DCA 1982). In contrast, a minority view 

embraced the proposition that an “action to rescind and cancel [a] recorded 

agreement for deeds and the recorded deeds conveying property pursuant 

thereto is founded upon a recorded instrument.” Albega Corp. v. Manning, 

468 So. 2d 1109, 1110 (Fla. 1st DCA 1985).

This conflict was swiftly resolved by the Florida Supreme Court over 

three decades ago in Diamond. There, the court examined whether “a suit 

to set aside a conveyance of real property” constituted an action “‘founded 

on a duly recorded instrument’ as set forth in section 48.23, Florida

Statutes[,] . . . authorizing the maintenance of a notice of lis pendens as of 

right.”4 Diamond, 561 So. 2d at 269. The proponent of a lis pendens had 

filed an action in the trial court to void a warranty deed, alleging a failure to

comply with the applicable constitution, rules and regulations, and bylaws by 

certain fiduciaries. Id. at 271. The trial court found the proponent was 

entitled to a lis pendens as a matter of right, and the district court reversed, 

holding that “a lawsuit to quiet title to real property predicated on allegations 

of fraudulent conveyance and misrepresentation is not an ‘action . . .

founded upon a duly recorded instrument.’” Id. (quoting § 48.23, Fla. Stat.).

4 The statutory provision in Diamond is largely identical to the current statute.
7

Closely examining the factual allegations, our high court found that 

“[c]learly, the relief sought in [the] action was not founded on the terms and 

provisions of the deed but on the circumstances surrounding the execution 

of that deed.” Id. at 272. To hold otherwise, it reasoned, would allow for a 

notice of lis pendens to “remain in effect beyond one year as of right

whenever real property was involved, contrary to the clear intent of section 

48.23.” Id. Thus, only in “those cases in which the suit is based on the terms 

and provisions contained in the recorded document” is the proponent entitled

to a lis pendens as a matter of right. Id. 

Here, in the operative complaint, petitioners allege ownership by virtue 

of defects in the chain of title. The documents recorded in the public record 

facially purport to establish the disputed property is subject to condominium 

control. Accordingly, petitioners cannot be awarded relief without a decree

invalidating the documents and the underlying conveyances. 

Given these circumstances, as in Diamond, the claim is not founded 

upon the terms and provisions of the instruments, but instead rests upon the 

circumstances surrounding execution. Consequently, petitioners’ authority 

to maintain a lis pendens is not as of right, but is subject to the direction and 

control of the trial court. Finding no departure from the essential 

requirements of law, we deny the petition under review.
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Petition denied.