BCJJ, LLC v. LeFevre et al, No. 8:2009cv00551 - Document 88 (M.D. Fla. 2009)
Court Description: ORDER denying 51 Motion to discharge lis pendens; denying 84 supplemental Emergency Motion to discharge lis pendens. The Court defers ruling on the alternative Motion to Require Plaintiff to Post a Bond, which is referred to the assigned Magistrate Judge for an evidentiary hearing and a report and recommendation. Signed by Judge Elizabeth A. Kovachevich on 10/19/2009. (JM)
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BCJJ, LLC v. LeFevre et al Doc. 88 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BCJJ, LLC, etc., Plaintiff, CASE NO. v. THOMAS LEFEVRE, 8:09-CV-551-T-17EAJ etc., et al., Defendants. ORDER This cause is before the Court on: Dkt. Dkt. Dkt. Dkt. 51 73 84 86 Motion to Discharge Lis Pendens Response Emergency Supplement to Motion Response This case is a multiple claim, multiple defendant case which includes the following counts: Count I - Violation of Disclosure Act, Interstate Land Sales 15 U.S.C. Sec. Full 1703(a)(2) as to Thomas J LeFevre ("LeFevre"), Thomas J. LeFevre Living Trust ("LeFevre Trust"), Tom's Friends, LLC ("Tom's Friends"), LLC, LLC, Tom's S Corp., Bayonne Investments, Bayonne, LLC, Evan Berlin, Berland Investments, Berlin Law Firm, P.A. ("Berlin Law Firm") Count II - Violation of Section 10(b) of Securities Exchange Act of 1934 and SEC Rule 10b-5 as to All Defendants Dockets.Justia.com Case No. 8:09-CV-551-T-17EAJ Count III - Violation of Florida Investor Protection Act, All Securities Section 517.301, and Fla. Stat. Defendants Count IV - Fraudulent Inducement as to LeFevre, LeFevre Trust, Tom's S Corp., Tom's Friends, Bayonne Investments, LLC ("BI")Bayonne, LLC ("Bayonne"), Evan Berlin ("Berlin"), Berland Investments, LLC ("Berland"), and M&I Marshall & Illsley Bank ("M&I") Count V - Negligent Misrepresentation as to LeFevre, LeFevre Trust, Friends, BI, Bayonne, Berlin, Count VI - Aiding and Abetting Fraud Berlin Law Count VII LeFevre Tom's S Corp., Tom's Berland, and M&I Firm and M&I - Breach of Contract and LeFevre Trust Count VIII - Unjust Enrichment - LeFevre, LeFevre Trust, Tom's Friends, Tom's S Corp., BI, Berland, and M&I Count IX - Civil Theft, as to LeFevre and Sec. 772.11, FS LeFevre Trust Count X - Legal Malpractice/Negligence Berlin and Berlin Law Firm Case No. 8:09-CV-551-T-17EAJ Count XI Trade - Violations of Florida Deceptive and Unfair Practices Act LeFevre, LeFevre Trust, Tom's Friends, Tom's S Corp., BI, Bayonne, Berlin, Berland, and Berlin Law Firm Count XII - Equitable Lien as to BI, TT, I. Post LLC and Bayonne Motion to Discharge Lis Pendens or Require Plaintiff to a Bond Defendant Bayonne, LLC moves for an order discharging Plaintiff's Notice of Lis Pendens or requiring Plaintiff to post a lis pendens bond. Defendant Bayonne, LLC argues that Plaintiff's claim for an equitable lien on the real property owned by Defendant Bayonne, LLC is not a claim founded upon a duly recorded instrument on which Plaintiff's action is founded, nor a claim of lien under Ch. 731, Fla. Stat. Defendant Bayonne, LLC further argues that there is no fair nexus between the claim in litigation and the property's title, as Defendant Bayonne, LLC is not a party to any of the agreements under which Plaintiff is proceeding, and the agreements do not evidence the intention to charge Bayonne LLC's property with Defendant LeFevre's debt. Defendant further argues that the claim for imposition of an equitable lien fails under Ch. 725.01, Fla, Stat. In the event the Court does not discharge the lis pendens, Defendant requests an evidentiary hearing. II. Plaintiff's Response Plaintiff BCIJ, LLC responds that there is a publicly recorded Joint Development Agreement between Bayonne Investments, Case No. 8:09-CV-551-T-17EAJ LLC and Bayonne, LLC; the two entities share an interest in the development plan and property, management. as well as ownership and Defendant Thomas LeFevre is a managing member of both entities. Plaintiff BCIJ, LLC alleges that Defendant Evan Berlin had a key role in soliciting Plaintiff BCIJ, LLC to invest the $400,000. Plaintiff BCIJ, LLC further argues that Defendant Evan Berlin has an ownership interest in Defendant Bayonne Investments, and LLC and served as counsel to Defendant Bayonne, Defendant Thomas Plaintiff BCIJ, LLC LeFevre. LLC argues that there is a fair nexus between the property and Plaintiff's claims against Defendant Bayonne LLC, dissolved. BCIJ, and therefore the lis pendens should not be Plaintiff BCIJ, LLC further argues that Plaintiff LLC should not be required to post a bond until Defendant Bayonne, LLC produces evidence that the lis pendens will cause Defendant Bayonne, III. LLC to suffer damages. Discussion Count XII of the Amended Complaint is a claim for equitable lien against Defendants Bayonne Investments LLC, Bayonne, TT, LLC and LLC. An equitable lien is a remedial device which may arise under a variety of circumstances: "The equitable lien is a remedial device of considerable flexibility adaptable to a wide variety of circumstances." Boyer and Katun, The Equitable Lien in Florida, 20 U.Miami I..Rev. 731 (1966). "Such liens may arise from written contracts which show an intention to charge some particular property Case No. 8:09-CV-551-T-17EAJ with a debt or obligation, or they may be declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings." FN1 Ross v. Gerung, 69 So.2d 650, 652 (Fla. 1954); see generally Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); Tucker v. Prevatt Builders, Inc., 116 So.2d 437 (Fla. 1st DCA 1959). A circumstance justifying the imposition of an equitable lien exists "when the claimant has furnished funds for the improvement of land with the knowledge and consent of the owner." Wagner v. Roberts, 320 So.2d 408, 410 (Fla. 2d DCA 1975), cert, denied, 330 So.2d 20 (Fla. 1976); see also Union Trust Co. of St. Petersburg v. Wittmann, 145 So.2d 540 (Fla. 2d DCA 1962); Carter v. Suggs, 190 So.2d 784 (Fla. 1st DCA 1966). FN1. The basis of equitable liens may be estoppel or unjust enrichment. Blumin v. Ellis, 186 So.2d 286 (Fla. 2d DCA 1966). Flowever, in order to prevail on an estoppel theory, there must be evidence of fraud, misrepresentation, or other affirmative deception. Rinker Materials Corp. v. Palmer First National Bank & Trust Co. of Sarasota, 361 So.2d 156 (Fla. 1978); Diversified Commercial Developers, Inc. v. Formrite, Inc., 450 So.2d 533 (Fla. 4th DCA 1984). Plotch v. Gregory. 463 So.2d 432, 436 (Fla. 4lh DCA 1985). In determining whether a fair nexus exists between ownership of property and the dispute embodied in a lawsuit for purposes of maintaining a lis pendens, the relevant question is whether alienation of the property or the imposition of intervening liens conceivably could disserve the purposes for which the lis pendens exists. answer is yes, a fair nexus must be found. Collande v. Kramer, 869 So.2d 1246, Where the See Von Mitschke- 1250 (Fla. 3rd DCA 2004) Case No. 8:09-CV-551-T-17EAJ A proponent of a lis pendens does not have to show a "substantial likelihood of success on the merits" or "establish his claim by the greater weight of the evidence," in order to establish a fair nexus;...it is the proponent demonstrate that, sufficient that absent a lis pendens, his unrecorded claim against the property could be jeopardized. Id, at 1250. In this case, Defendant Bayonne, LLC argues that the mortgage on the property has matured and seeks to dissolve the lis pendens in order to refinance. A refinance or sale would jeopardize Plaintiff's equitable lien. consideration, After the Court finds that a fair nexus between Plaintiff's claim and the property exists. The Court denies the Motion to Discharge Lis Pendens and this case will be referred to the assigned Magistrate Judge to conduct an evidentiary hearing on the bond issue. Accordingly, it is ORDERED that the Motion to Discharge Lis Pendens is denied, and Motion for Bond is referred to the assigned Magistrate Judge to conduct an evidentiary hearing and for a report and recommendation. Case No. 8:09-CV-551-T-17EAJ DONE and ORDERED in Chambers, / J day of October, 2009. Copies t All part in Tampa, Florida on this
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