Third District Court of Appeal
State of Florida
Opinion filed February 24, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1511
Lower Tribunal No. 22-580
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Sharon Moore Bode, et al.,
Appellants,
vs.
Wilmington Savings Fund Society, FSB, etc.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Maria de Jesus Santovenia, Judge.
David J. Winker, P.A., and David J. Winker, for appellants.
Atlas | Solomon PLLC, and Eric M. Levine and Adam G. Schwartz
(Stuart), for appellee.
Before EMAS, SCALES and LINDSEY, JJ.
PER CURIAM.
Sharon Moore Bode and Roberto Bode appeal the trial court’s order
granting an emergency motion to discharge lis pendens. An order
discharging a lis pendens is generally reviewed for an abuse of discretion,
India Am. Trading, Co. v. White,
896 So. 2d 859, 860 (Fla. 3d DCA 2005),
but statutory construction and pure questions of law are reviewed de novo.
LB Judgment Holdings, LLC v. Boschetti,
271 So. 3d 115, 118 (Fla. 3d DCA
2019). Upon our review, we find no error in the trial court’s order discharging
the lis pendens in the instant case, and affirm. 1 See § 48.23(3), Fla. Stat.
(2022) (“When the pending pleading does not show that the action is founded
on a duly recorded instrument . . . the court shall control and discharge the
recorded notice of lis pendens as the court would grant and dissolve
injunctions”); Petkovich v. Sandy Point Condo. Apts. Ass’n, Inc.,
325 So. 3d
201, 204 (Fla. 3d DCA 2021) (holding petitioner was not entitled to lis
pendens as a matter of right—i.e., as founded on a duly recorded instrument
under section 48.23—because his claim was not based “upon the terms and
provisions of the instruments” but instead was based “upon the
1
To the extent appellants’ claim is based on comments the trial court
allegedly made at an October 2019 hearing, the record does not contain a
transcript of that hearing. See Zarate v. Deutsche Bank Nat. Tr. Co.,
81 So.
3d 556, 557 (Fla. 3d DCA 2012) (“An appellant has the burden to present a
record that will overcome the presumption of the correctness of the trial
court's findings.”)
2
circumstances surrounding execution”) (citing Am. Legion Cmty. Club v.
Diamond,
561 So. 2d 268, 269 (Fla. 1990) (holding that a suit to set aside a
conveyance of real property is not an action “founded on a duly recorded
instrument” within the meaning of section 48.23, Florida Statutes, and thus
the maintenance of a notice of lis pendens is not authorized as a matter of
right)).
Affirmed.
3
