IN THE SUPREME COURT OF FLORIDA. Petitioner, FSC CASE NO.: SC DCA CASE NO.: 2D

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1 IN THE SUPREME COURT OF FLORIDA SUNSET COVE INVESTMENTS, INC., Petitioner, FSC CASE NO.: SC DCA CASE NO.: 2D BENITO G. SANTIAGO, Respondent. / ON PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA INITIAL BRIEF OF PETITIONER ON JURISDICTION MATIAS BLANCO, JR., ESQ. P.O. BOX TAMPA, FLORIDA (813) Facsimile: (813) FLA. BAR NO.: COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 JURISDICTIONAL STATEMENT... 4 ARGUMENT... 4 The decision of the Second District Court in Santiago v. Sunset Cove Investments, Inc., conflicts with the decisions of this Court and of other District Courts which hold that: (1) a subsequent purchaser pendente lite is bound by the judgments and decrees rendered against the party from whom the subsequent purchaser makes the purchase, as much so as though the subsequent purchaser had been a party to the judgment or decree; and, (2) a subsequent purchaser is not permitted to intervene in the proceedings. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX Santiago v. Sunset Cove Investments, Inc. 2D Opinion filed February 1, 2008 ii

3 Cases: TABLE OF AUTHORITIES Page Alamagan Corp. v. Daniels Group, Inc., So.2d 22, 24, (Fla. 3 rd DCA 2002) Andresix Corp. v. Peoples Downtown Nat. Bank,... 7,8 419 So.2d 1107(Fla. 3 rd DCA 1982) De Pass v. Chitty, Fla. 77, 105 So 148, 149 (1925) Florida Dept. of Revenue v. Cummings, So.2d 604, 607 (Fla. 2006). Greenwald v. Graham, Fla. 818, 130 So. 608, 611 (1930) Hotel Europe, Inc. v. Aouale, So.2d 1149, 1151 (Fla. 3rd DCA 2000) Hough v. Stewart, So.2d 1279, 1281 (Fla. 5 th DCA 1989) Iannazzo v. Stanson, So.2d 1005, 1007 (Fla. 4 th DCA 2006) Intermediary Finance Corporation v. McKay,.... 4,5,7 93 Fla. 101, 111 So 531 (Fla. 1927) Marchand v. DeSoto Mortgage Company, So.2d 357, 359 (Fla. 2 nd DCA 1963) Med Facilities Dev. v. Little Arch Creek, So.2d 915, 917 (Fla. 1996) Peninsular Naval Stores Co. v Cox, ,6,7,8 57 Fla. 505, 49 So. 191 (1909) SADCO v Countrywide Funding, Inc., ,8 680 So.2d 1072 (Fla. 3 rd DCA 1996) Santiago v. Sunset Cove Investments, Inc., passim 2008 Fla. App. LEXIS 1048, 33 Fla. L. Weekly D 401 iii

4 Constitutional Provisions, Statutes and Court Rules: Fla. Const. Art. V, Section 3(b)(3) Fla. R. App. P (a)(2)(A)(iv) PRELIMINARY STATEMENT Citations to the record below will be by reference to the Appendix filed by the respective Parties before the Second District Court using the symbol A followed by the appropriate tab number and/or page number. iv

5 STATEMENT OF THE CASE AND FACTS The Respondent, Benito G. Santiago, hereafter Santiago, contracted to sell several parcels of commercial real estate to Petitioner, Sunset Cove Investments, Inc., hereafter Sunset Cove. 1 On August 17, 2004, Petitioner, Sunset Cove, filed an action against Santiago to enforce its contract with Santiago. 2 Upon commencement of its action against Santiago, Sunset Cove filed and recorded a Lis Pendens. 3 During the pendency of the action between Sunset Cove and Santiago, and, while the Lis Pendens was in full force and effect, Santiago entered into a contract with Chris P. Tsokos, hereafter Tsokos, on November 19, 2004, to sell to Tsokos certain of the same parcels of real estate that Santiago had previously sold to Sunset Cove. Subsequently, on February 15, 2005, again while the Lis Pendens was still in full force and effect, Santiago entered into a second contract with Tsokos to sell him the remainder of the parcels that Santiago had first sold to Sunset Cove. 4 The litigation between Sunset Cove and Santiago was concluded with a mediation agreement and final judgment adopting the mediation agreement whereby Santiago 1 Santiago s Appendix, 2D , Vol. I, Tab 1, Exhibit A 2 Santiago s Appendix, 2D , Vol I, Tab 1 3 Santiago s Appendix, 2D , Vol I, Tab 2 4 Santiago s Appendix, 2D , Vol I, Tab 8

6 agreed to close on his contract with Sunset Cove, as amended by the mediation agreement, within ninety (90) days of the date of the mediation agreement. 5 After making multiple unsuccessful demands to close within the ninety (90) day period 6, Sunset Cove, on May 26, 2005, filed a motion to enforce the Final Judgment, 7 and filed a new Lis Pendens 8 in the enforcement proceedings. During the pendency of Sunset Cove s enforcement proceedings, Tsokos moved, unsuccessfully, to intervene in the proceedings. 9 Tsokos did not seek review of the trial court s order denying him intervention. After the trial court denied Tsokos motion to intervene, and approximately ten (10) days before a scheduled hearing before the trial court on Sunset Cove s motion to enforce the final judgment and mediation agreement, and without advising either the trial court or Sunset Cove, Santiago and Tsokos, on September 27, 2005, closed on the contracts for purchase that Santiago had entered into with 5 Santiago s Appendix, 2D , Vol I, Tabs 5 and 10 6 Sunset s Appendix, 2D , 1, 2, 3 and 4 7 Santiago s Appendix, 2D , Vol I, Tab 11 8 Santiago s Appendix, 2D , Vol I, Tab 12, Vol II, Tab 51, Ex. A 9 Santiago s Appendix, 2D , Vol I, Tab 13, 25 page 30, line 10, and Tab 65 at page 5-2 -

7 Tsokos. 10 The trial court granted Sunset Cove s motion to enforce the final judgment and mediation agreement. 11 Santiago timely appealed the trial court s order of enforcement to the District Court, which reversed the trial court. The Second District Court s opinion in Santiago v. Sunset Cove Investments, Inc., 2008 Fla. App. LEXIS 1048, was rendered on February 1, The motions for rehearing were denied on April 9, 2008; and, the Petitioner s notice to invoke discretionary jurisdiction was timely filed on April 11, SUMMARY OF THE ARGUMENT The Second District Court, in Santiago v. Sunset Cove Investments, Inc., held that: (1) Tsokos, because he was not a party, was not bound by the proceedings between Sunset Cove and Santiago; and, (2) Tsokos was an indispensable party to the proceedings. The decision of the Second District Court in Santiago is irreconcilable with the decisions of this Court, and of other District Courts, wherein this Court and the other District Courts have held that, where a Lis Pendens has been filed and recorded: (1) a subsequent purchaser pendente lite, as a matter of law, is bound by the judgments and decrees rendered against the party from whom the subsequent purchaser makes the purchase, as much so as though the subsequent purchaser had been a party to the proceedings; and, 10 Santiago s Appendix, 2D , Vol I, Tabs 17, 20, 21, 23, page 8, line 9 through page 9, line 24, 26 at paragraph s 11 and Santiago s Appendix, 2D , Vol. 2, Tab

8 (2) a subsequent purchaser, as a matter of law, is not permitted to intervene in the proceedings between the original buyer and seller. The immediate precedential effect of the Second District Court s opinion in Santiago is that it has fundamentally jeopardized and thrown the entire Doctrine of Lis Pendens into complete confusion. Moreover, quoting from this Court s own decision, 12 it would not an exaggeration to state that the Second District Court, in adopting such a view,...would overthrow the whole Doctrine. JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of this Court or another District Court of Appeal on the same point of law. Art. V, Section 3(b)(3) Fla. Const.; Fla. R. App. P (a)(2)A)(iv). ARGUMENT ISSUE Whether the decision of the District Court in Santiago conflicts with the decisions of this Court and of other District Courts which hold that where a Lis Pendens has been filed and recorded: (1) a subsequent purchaser pendente lite is bound by the judgments and decrees rendered against the party from whom the subsequent purchaser makes the purchase, as much so as though the subsequent purchaser had been a party to the judgment or decree; and, 2) a subsequent purchaser is not permitted to intervene in the proceedings. 12 Intermediary Finance Corporation v. McKay, 93 Fla.101, 111 So 531, 532 (Fla. 1927)

9 Petitioner respectfully submits that this Court should grant discretionary review and resolve the conflict by quashing the decision of the Second District Court. Purchaser pendente lite is Bound by the Proceedings The Second District Court s decision in Santiago v. Sunset Cove Investments, Inc., is in direct conflict with the decision of this Court in Greenwald v. Graham, 100 Fla. 818, 130 So. 608, 611 (1930) wherein this Court expressly stated: One who purchases property subject to a lis pendens is bound by the judgment or decree rendered against the party from whom he makes the purchase as much as though he had been a party to the judgment or decree himself. The Second District Court s decision in Santiago is in direct conflict with the decision of this Court in Intermediary Finance Corporation v. McKay, 93 Fla.101, 111 So 531, 532 (1927) wherein this Court expressly stated: The general rule is that whoever purchases the subject-matter of a suit pendente lite takes subject to the decree or judgment. The doctrine of lis pendens is grounded on the theory that the parties to the suit will not be permitted to withdraw or alienate the subject-matter thereof pending litigation. The adoption of any other view would overthrow the whole doctrine. The Second District Court s decision in Santiago is also in direct conflict with the decision of this Court in Peninsular Naval Stores Co. v Cox, 57 Fla. 505, 49 So. 191 (1909), wherein this Court expressly stated: Where such a notice is filed and recorded, the suit operates as a lis pendens, and its effect is to put every one on notice of the suit, and a purchaser of the property - 5 -

10 involved or of any interest therein of the parties defendant in the suit does so at his peril. He takes the risk of the result of the suit and is concluded by the judgment or decree therein, and it is not necessary that such a purchaser should be made a party thereto. The Second District Court s decision in Santiago is also in direct conflict with the decision of this Court in Peninsular Naval Stores Co. v Cox, supra, at page 495, wherein this Court further expressly stated:... after a bill has been filed and a lis pendens notice given. Such purchasers and encumbrancers will be bound by the decree and need not be made parties, whether the complaintant has notice of them or not... The Second District Court s decision in Santiago is also in direct conflict with the decision of another District Court in Iannazzo v. Stanson, 927 So.2d 1005, 1007 (Fla. 4 th DCA 2006), wherein the Fourth District Court expressly stated: One who purchases property subject to a lis pendens is bound by the judgment or decree rendered against the party from whom he makes the purchase as much so as though he had been a party to the judgment or decree itself. Purchaser pendente lite is not an Indispensable Party Contrary to the Second District Court s opinion in Santiago below, Tsokos, as subsequent purchaser pendente lite subject to a lis pendens, is not an indispensable party; and, in fact, Tsokos is precluded from becoming a party in these proceedings in any capacity whatsoever After a lis pendens is filed, a subsequent purchaser of the subject realty is not entitled, nor permitted, to intervene in any - 6 -

11 It is precisely because such a subsequent purchaser is bound by the judgment or decree in the proceedings that there is no purpose to be served in protracting the litigation 14 by intervention, which, even if permitted, would be subordinate to the main claim (already concluded in this case by a final judgment): accordingly, they cannot be indispensable parties. 15 The Second District Court s decision in Santiago is in direct conflict with the decision of this Court in Intermediary Finance Corporation v McKay, supra, at page 531 wherein this Court expressly stated: This court is committed to the doctrine that a purchaser pendente lite is not entitled to intervene. The Second District Court s decision in Santiago is also in direct conflict with the decision of this Court in Peninsular Naval Stores Co v. Cox, 57 Fla. 506, 49 So. 191, 195 (1909) wherein this capacity, indispensable or otherwise, as party in the proceedings in which the lis pendens is filed. Intermediary Finance Corporation v. McKay, supra; Peninsular Naval Stores Co. v. Cox, supra; SADCO v Countrywide Funding, Inc., 680 So.2d 1072 (Fla. 3 rd DCA 1996); Andresix Corp. v. Peoples Downtown Nat. Bank, 419 So.2nd 1107(Fla. 3 rd DCA 1982); 14 This Court, long ago, expressed the concern that to allow purchasers pendente lite to become parties, indispensable or otherwise, would unnecessarily protract litigation without end. Peninsular Naval Stores Co v. Cox, supra at page An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party s interest or the interests of another party in the action. Florida Dept. of Revenue v. Cummings, 930 So.2d 604, 607 (Fla. 2006)

12 Court expressly stated: The purchase of the land and the assignment of the judgments all occurred pendente lite. If Varn, under the circumstances, is entitled to appear as a party defendant, then, any assignee of his would also be entitled to appear, and the litigation could be protracted without end. The Second District Court s decision in Santiago is in direct conflict with the decision of this Court in Peninsular Naval Stores Co v. Cox, supra, at page 194 wherein this Court expressly stated:... a purchaser of the property involved or of any interest therein of the parties defendant in the suit does so at his peril. He takes the risk of the result of the suit and is concluded by the judgment or decree therein, and it is not necessary that such a purchaser should be made a party thereto The Second District Court s decision in Santiago is also in direct conflict with the decision of another District Court in SADCO v. Countywide Funding, Inc,, 680 So.2d 1072 (Fla. 3 rd DCA 1996), wherein the Third District Court expressly stated: SADCO, Inc. appeals from an order denying its motion to intervene in a residential foreclosure action. Notwithstanding appellant s arguments to the contrary, the trial court correctly denied its motion to intervene under the controlling authority of Andresix Corp. v. Peoples Downtown Nat l Bank, 419 So.2d 1107 (Fla. 3 rd DCA 1982)(purchaser of property that was subject of lis pendens arising from bank s pending foreclosure action not entitled to intervene in that action. Release of Lis Pendens One final issue requires addressing: the District Court s reference to Sunset Cove s releasing of the initial Lis Pendens which had been filed and recorded with the commencement of Sunset Cove s - 8 -

13 initial action against Santiago: that Lis Pendens was released approximately seven (7) days prior to the entry of the final judgment which had been submitted for the judge s signature. 16 The entry of the final judgment itself would have released the lis pendens, even if Sunset Cove had not done so, because a lis pendens is effective only until the final judgment is entered. 17 The term lis pendens literally implies a pending suit. 18 The release of the initial lis pendens, either by Sunset Cove or by the entry of the final judgment shortly thereafter, would not have precluded the effect of the Lis Pendens on the interests acquired by Tsokos during the time that the Lis Pendens was in place. 19 Furthermore, as previously noted in the Statement of Facts, a second Lis Pendens was appropriately 20 filed and recorded when Sunset Cove initiated its Motion to Enforce the Final Judgment, and so that second Lis Pendens was also in place at the time that Tsokos actually closed 16 Santiago s Appendix, 2D07,-1598, Vol I, Tabs 9 and De Pass v. Chitty, 90 Fla. 77, 105 So 148, 149 (1925); Marchand v. DeSoto Mortgage Company, 149 So.2d 357, 359 (Fla. 2 nd DCA 1963); Hotel Europe, Inc. v. Aouale, 766 So.2d 1149, 1151 (Fla. 3rd DCA 2000) 18 Med Facilities Dev. v. Little Arch Creek, 675 So.2d 915, 917 (Fla. 1996); De Pass v. Chitty, supra; Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22, 24, (Fla. 3 rd DCA 2002); Hotel Europe Ins. v. Aouate, supra. 19 Hough v. Stewart, 543 So.2d 1279, 1281 (Fla. 5 th DCA 1989). 20 Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22, 24 (Fla. 3 rd DCA 2002)

14 on his purchase contracts. And so, both at the time of Tsokos purchase contracts, as well as at the time of the closing on his purchase contracts, there was a valid Lis Pendens in place. CONCLUSION This Court has discretionary jurisdiction to review the decision below, and because the Second District Court s opinion is in direct and express conflict with the decisions of this Court and of other District Courts, this Court should exercise its jurisdiction to consider the merits of the Petitioner s argument. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Initial Brief of Petitioner on Jurisdiction was furnished by U.S. Mail, postage prepaid, to David M. Caldevilla, Esq., de la Parte & Gilbert, P.A., P.O. Box 2350, Tampa, Florida ; Craig E. Rotheburd, Esq., Craig E. Rothburd, P.A., 808 W. DeLeon Street, Tampa, Florida 33606; and Richard K. Fueyo, Esq., 101 E. Kennedy Blvd., Suite 2700, Tampa, Florida on this 21st day of April, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12 - point Courier New, in compliance with Fla. R. App. P (a)(2). MATIAS BLANCO, JR., ESQ. P.O. BOX Tampa, Florida (813) Facsimile: (813) Fla. Bar No.: COUNSEL FOR PETITIONER

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