DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DELTA AGGREGATE, LLC, a Florida limited liability company, and

MICHAEL DESIMONE, a Florida resident,

Petitioners,

v.

HERMES HIALEAH WAREHOUSE, LLC, a Florida limited liability 

company,

Respondent.

No. 4D18-2252

[March 6, 2019]

Petition for writ of certiorari to the Seventeenth Judicial Circuit, 

Broward County; Michael L. Gates, Judge; L.T. Case No. CACE 17-013283 

(12).

Robert A. Sweetapple and Cynthia J. Miller of Sweetapple, Broeker & 

Varkas, P.L., Boca Raton, for petitioners.

Paul DeCailly of DeCailly Law Group, P.A., Indian Rocks Beach, for 

respondent.

PER CURIAM.

Petitioners, Delta Aggregate, LLC (Delta) and Michael DeSimone 

(DeSimone), seek certiorari review of an order that denied their emergency 

motion to discharge a lis pendens. We have jurisdiction and grant the 

petition.1

1 This court exercises certiorari review over such orders. See Kennedy Real Estate 

Found. v. Goldberg, 436 So. 2d 1056 (Fla. 4th DCA 1983); Cooper Vill., Inc. v. 

Moretti, 383 So. 2d 705 (Fla. 4th DCA 1980); see also Archer v. Archer, 692 So. 

2d 1009 (Fla. 4th DCA 1997). The third district exercises non-final review but 

has recognized that certiorari review is more appropriate. See Villamizar v. Luna 

Capital Partners, LLC., 260 So. 3d 355 (Fla. 3d DCA 2018); see also Rodriguez v. 

Guerra, 254 So. 3d 521, 521 n.1 (Fla. 3d DCA 2018) (recognizing that prior 

decisions indicated that certiorari was appropriate to review such orders); 

Bankers Lending Servs., Inc. v. Regents Park Inv., LLC, 225 So. 3d 884, 885 (Fla. 

3d DCA 2017) (noting that prior non-final review was based on Rule 
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While a claim for an equitable lien can support a lis pendens, it must 

be founded either upon a duly recorded instrument or a fair nexus between 

the apparent legal or equitable ownership of the property and the dispute 

embodied in the lawsuit. See Chiusolo v. Kennedy, 614 So. 2d 491, 492 

(Fla. 1993); Lakeview Townhomes at the Calif. Club, Inc. v. Lakeview of the 

Calif. Club Homeowners Ass’n, Inc., 579 So. 2d 290 (Fla. 3d DCA 1991). 

Respondent Hermes Hialeah Warehouse, LLC (Hermes) has not 

demonstrated either basis to support the lis pendens.

Delta operates a mining operation on real property that it owns. Delta’s 

interests were originally held equally between DeSimone and Raelaur 

Realty LLC (Raelaur). DeSimone sought to purchase Raelaur’s fifty percent 

interest in Delta. To facilitate the transaction, DeSimone executed a 

promissory note for the full purchase price in Raelaur’s favor. As collateral 

to secure the note, DeSimone also executed a security agreement for 100% 

of his membership interest in Delta.

Raelaur received partial payment on the note and then declared 

DeSimone in default. The parties thereafter entered into a loan 

modification in which Delta was joined as a party. Under the terms of the 

loan modification, Delta was to pay Raelaur monthly, specified amounts of 

the revenue realized from the sale of sand and stone excavated from the 

property. Raelaur alleges that it was never paid any money nor provided 

an accounting from Delta under the modification agreement.

Raelaur later assigned its interest under the loan documents and 

modification agreement to Hermes. Hermes sued Delta and DeSimone for 

breach of contract and fraud. It filed a lis pendens which the trial court 

discharged.

Hermes amended the complaint to add a third count to impose an 

equitable or constructive lien on the real property, and filed the second lis 

pendens under review. Hermes alleged that Delta and DeSimone failed to 

make the payments due from its sales revenue. Therefore, it sought an 

9.130(a)(3)(B), associated with injunctions). This court in Archer agreed with the 

third district that non-final review would be the preferred method of review but 

noted that Florida Rule of Appellate Procedure 9.130 did not authorize it and 

urged the appellate rules committee to consider the issue. 692 So. 2d at 1009 

n.1. The first district may decline review. Landmark at Crescent Ridge LP v. 

Everest Fin., Inc., 219 So. 3d 218, 220 (Fla. 1st DCA 2017) (dismissing petition 

and holding that monetary harm that may result from a lis pendens, such as loss 

of value or ability to sell to a particular buyer, is insufficient to allow for certiorari 

review). 
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equitable or constructive lien on the real property and the materials 

embedded therein.

In order to maintain a lis pendens not based on a duly recorded 

instrument or lien, the proponent must show a “fair nexus” between the 

property that is the subject of the lis pendens and the dispute embodied 

in the lawsuit. Chiusolo, 614 So. 2d at 492. The amended complaint with 

its claim for equitable or constructive lien does not show the requisite “fair 

nexus.” Rather, it is based solely on Delta’s failure to pay those sums 

claimed to be due from the sale of the excavated materials as provided by 

the terms of the loan modification agreement. See Roger Homes Corp. v. 

Persant Constr. Co., 637 So. 2d 5, 6-7 (Fla. 3d DCA 1994). Delta did not 

grant Hermes, as Raelaur’s successor, an interest in or a lien against the 

property. Hansen v. Five Points Guar. Bank, 362 So. 2d 962, 964 (Fla. 1st 

DCA 1978) (“An equitable lien results . . . only when the intention to offer 

the land as security for the debt is clearly apparent.”) (citation and internal 

quotation marks omitted). Furthermore, Hermes can obtain complete 

relief without reference to the property. Blue Star Palms, LLC v. LED Tr., 

LLC, 128 So. 3d 36, 39 (Fla. 3d DCA 2012) (holding that lis pendens could 

not be maintained where the plaintiff can be afforded complete relief 

without reference or connection to the property’s title).

Based on the foregoing, we grant the petition and quash the order that 

denied the motion to discharge the lis pendens.

Petition for writ of certiorari granted and order quashed.

GERBER, C.J., GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.