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


1This court exercises certiorari review over such orders. See Kennedy Real Estate
Found. v. Goldberg, 

(Fla. 4th DCA 1983); Cooper Vill., Inc. v.
Moretti, 

(Fla. 4th DCA 1980); see also Archer v. Archer, 

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., 

(Fla. 3d DCA 2018); see also Rodriguez v.
Guerra, 

, 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, 

, 885 (Fla.
3d DCA 2017) (noting that prior non-final review was based on Rule
   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, 

, 492
(Fla. 1993); Lakeview Townhomes at the Calif. Club, Inc. v. Lakeview of the
Calif. Club Homeowners Ass’n, Inc., 

(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. 

at 1009
n.1. The first district may decline review. Landmark at Crescent Ridge LP v.
Everest Fin., Inc., 

, 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. 

. 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., 

, 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, 

, 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, 

, 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.




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