PRONTOCASH, LLC v. THE AUTOBOUTIQUE OF MIAMI, INC.

Third District Court of Appeal
State of Florida
Opinion filed December 8, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1277
Lower Tribunal No. 20-4404
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ProntoCash, LLC,
Appellant,
vs.
The Autoboutique of Miami, Inc., et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Franz C. Jobson, P.A., and Franz C. Jobson (Fort Lauderdale), for
appellant.
Pugliese Law, P.A., and Marc C. Pugliese, for appellee Diana
Fernandez.
Before EMAS, HENDON, and MILLER, JJ.
HENDON, J.
ProntoCash, LLC (“ProntoCash”) files a petition for certiorari seeking
to quash an order discharging its lis pendens against the property of non-
party Diana Fernandez (“Fernandez”). We treat the petition as an appeal
from a final order and affirm.
Daniel Gomez (“Gomez”) owns The Autoboutique of Miami, Inc.
(“Autoboutique”), an exotic car rental company. Autoboutique offered two
cars for sale, a 2015 Mercedes S550 and a 2018 Dodge Ram 3500.
Between December 26, 2018 and December 27, 2018, Autoboutique sold
the two vehicles to an unrelated third party. That unrelated third party gave
Autoboutique two checks to purchase the vehicles, one for $36,500.00, and
one for $47,500.00. Autoboutique endorsed and presented both checks for
payment to ProntoCash, a check cashing facility with whom Autoboutique
routinely did business. ProntoCash gave Autoboutique the cash. Later, the
checks were returned for insufficient funds and turned out to be fraudulent.
When Autoboutique failed to work out a resolution with ProntoCash,
ProntoCash sued Autoboutique to collect payment on two worthless checks
pursuant to section 68.065, Florida Statutes, and for violation of the duty of
good faith under the Uniform Commercial Code.
On February 20, 2020, ProntoCash filed notices of lis pendens against
several vehicles owned by Autoboutique. ProntoCash also filed a notice of
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lis pendens against a McLaren that is not owned by Autoboutique. The
McLaren is owned by Fernandez, who is not a party to the suit between
ProntoCash and Autoboutique. The record shows that Fernandez purchased
her vehicle on October 19, 2019, from Formula One Miami, weeks prior to
the fraudulent purchases of the Mercedes and Dodge Ram from
Autoboutique. ProntoCash asserted below that Gomez was co-mingling his
assets with that of Autoboutique and put vehicles in Fernandez’s name to
avoid any freeze on his assets during his separate, ongoing divorce. The
record does not support this assertion as to Fernandez’s acquisition of the
McLaren. The record shows that title to Fernandez’s vehicle was never in
the name of, or transferred to, Gomez or Autoboutique. Fernandez moved
to discharge the lis pendens. After a three-hour hearing at which the court
heard from witnesses, including Fernandez, it found no nexus between the
fraudulent checks issued for the two Autoboutique vehicles and Fernandez’s
ownership of her vehicle, and granted the motion to discharge the lis
pendens. ProntoCash did not file a motion for rehearing, and instead filed a
petition for certiorari seeking to quash the order discharging the lis pendens
against Fernandez’s vehicle.
ProntoCash contends that the order granting non-party Fernandez’s
motion to dissolve the lis pendens is a non-final order, not a final judgment,
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and thus review by petition for certiorari is appropriate. Further, ProntoCash
asserts that Fernandez has no standing to move to dissolve the lis pendens
as she was required to move to intervene in the litigation between
ProntoCash and Autoboutique. We find no merit in these arguments.1
The determination of the finality of an order is a pure question of law
and is subject to de novo review. M.M. v. Fla. Dep't of Child. & Fams., 189
So. 3d 134, 137 (Fla. 2016). To be deemed final, “an order must demonstrate
an end to the judicial labor.” Hoffman v. Hall, 817 So. 2d 1057, 1058 (Fla.
1st DCA 2002). “The traditional test for finality is whether the decree
disposes of the cause on its merits leaving no questions open for judicial
determination except for execution and enforcement, if necessary.” Id.The order discharging the notice of lis pendens is not a non-final,
interlocutory order because there is no pending case against Fernandez.
She was not named in the suit between ProntoCash and Autoboutique and
was not served with the complaint. The order discharging the lis pendens
against her property operates as a final order as to Fernandez, as there is
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The arguments raised by ProntoCash in this petition for certiorari are
identical to the arguments it raised in Prontocash, LLC v. Autoboutique of
Miami, Inc., No. 3D21-1116, 2021 WL 2425290 (Fla. 3d DCA May 17, 2021),
in which it sought to strike Fernandez’s motion to dissolve the lis pendens
based on lack of standing, failure to move to intervene, etc.
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no further judicial labor anticipated as to her or to her property that was the
subject of the lis pendens. Thus, we conclude that review of this order should
be by appeal, not by certiorari. See, e.g., Varela v. OLA Condo. Ass'n, Inc.,
279 So. 3d 266, 267 n.1 (Fla. 3d DCA 2019) (“We note that Varela properly
sought review through a notice of appeal rather than a petition for certiorari
in this case because she is not a party to the litigation below. The order on
appeal ended all judicial labor in the case as to Varela and constitutes a final
appealable order.”).
To consider the merits of ProntoCash’s arguments, we look to the
standard for evaluating the granting or denying of a motion to discharge a
notice of lis pendens. As this Court in LB Judgment Holdings, LLC v.
Boschetti, 271 So. 3d 115, 118–19 (Fla. 3d DCA 2019) provided,
Section 48.23, Florida Statutes (2018), governs notices of lis
pendens and the prerequisites for filing them. Section 48.23(3)
specifies that when, as here, the underlying lawsuit is not
founded on a “duly recorded instrument” or a lien claimed under
part I of chapter 713, Florida Statutes (governing construction
liens), “the court shall control and discharge the recorded notice
of lis pendens as the court would grant and dissolve injunctions.
However,
this standard . . . does not make an order granting or denying a
motion to discharge a notice of lis pendens an order pertaining
to injunctions within the purview of Rule 9.130(b); it simply means
that the circuit court is to utilize the procedural standards or
principles applicable to the granting or discharging of injunctions
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when considering a motion to grant or discharge a notice of lis
pendens.
Cooper Vill., Inc. v. Moretti, 383 So. 2d 705, 705 (Fla. 4th DCA 1980).
The relevant question for the trial court, and the reviewing court, is
“whether alienation of the property or the imposition of intervening liens . . .
conceivably could disserve the purposes for which lis pendens exists. Where
the answer is yes, fair nexus must be found.” Von Mitschke-Collande v.
Kramer, 869 So. 2d 1246, 1250 (Fla. 3d DCA 2004). For the lis pendens
proponent (here, ProntoCash), “fair nexus” means making “a minimal
showing that there is at least some basis for the underlying claim[ ] [a]nd . .
. show that he or she has a good faith basis to allege facts supporting a
claim, and that the facts alleged would at least state a viable claim.” Nu-
Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232, 236 (Fla. 5th
DCA 2007).
On de novo review of the record, we conclude that ProntoCash failed
to show a “fair nexus between the apparent legal or equitable ownership of
the property and the dispute embodied in the lawsuit.” Chiusolo v. Kennedy,
614 So. 2d 491, 492 (Fla. 1993). Here, there is no underlying lawsuit against
Fernandez, and ProntoCash has not shown any good faith basis to support
a lis pendens against a vehicle not owned by Autoboutique. Generally,
where the property owner is not named as a party to the action in the
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complaint, any lis pendens filed against it is without legal basis and must be
dissolved. Loidl v. I & E Grp., Inc., 927 So. 2d 1016, 1018 (Fla. 2d DCA
2006); see also Wiggins v. Dojcsan, 411 So. 2d 894 (Fla. 2d DCA 1982)
(holding a complaint which will not support a claim against the specific
property at issue cannot provide a basis for tying it up by a filing of notice of
lis pendens).
Finally, Fernandez did not need to move to intervene as a party to the
lawsuit between ProntoCash and Autoboutique in order to have standing to
move to have the lis pendens dissolved. A motion to dissolve a notice of lis
pendens does not subject the movant to the general jurisdiction of the trial
court. Loidl, 927 So. 2d at 1019-20 (“A property owner who has been
subjected to an improper notice of lis pendens has received no summons or
other judicial process and has not been served with a complaint. It has no
reason to expect that it will be haled into court as a party or subjected to a
judgment on an undisclosed cause of action when it objects to a cloud upon
the title of its [property]. Such a property owner is not subjecting itself to the
court's general jurisdiction and is under no obligation to challenge personal
jurisdiction when it seeks to dissolve a notice of lis pendens.”); see also
Conseco Servs., LLC v. Cuneo, 904 So. 2d 438, 439 (Fla. 3d DCA 2005)
(quoting Chiusolo, 614 So. 2d at 492).
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Affirmed.
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