Salas, III v. Wellington Equine Associates et al

Filing 24

ORDER granting in part and denying in part 13 Verified Emergency Motion to Dissolve Lis Pendens and for Sanctions. The Motion is granted in that the lis pendens at DE 9 and DE 10 are dissolved. The Defendants' Motion is denied without prejudice as to sanctions. Signed by Judge Robin L. Rosenberg on 1/28/2015. (cgn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:14-CV-81483-ROSENBERG
CAMILO K SALAS, III,
Plaintiff,
v.
WELLINGTON EQUIN ASSOCIATES, et al.,
Defendants.
/
ORDER GRANTING DEFENDANTS’ EMERGENCY MOTION
AND DISSOLVING LIS PENDENS
THIS CAUSE is before the Court upon Defendants’, Schachter 5320, LLC, Schachter
Management, LLC, Ben Schachter, and Kathryn Schachter (collectively “Schachter
Defendants”), Verified Emergency Motion to Dissolve Lis Pendens and for Sanctions [DE 13]
(the “Motion”), filed on January 27, 2015. Because the Motion involved a closing scheduled for
January 30, 2015, the Court set the Motion for hearing on January 28, 2015. The pro se Plaintiff,
who is unable to file documents electronically through CM/ECF, emailed his response to
Defendants’ Motion to the Court and all parties involved in anticipation of the hearing. He filed
his response with the Clerk of Court the day of the hearing. 1
Plaintiff filed his Complaint on November 26, 2014. Plaintiff’s claims stem from a
surgery which Defendants performed on Plaintiff’s horse, and the treatment the horse received
post-surgery. See id. ¶¶ 34–43. The allegedly deficient treatment was due in part, Plaintiff
alleges, to the fact that Wellington Equine Associates lacked the proper equipment to fully
address the horse’s needs. See id. ¶¶ 41–43. As a result of Defendants’ actions during the surgery
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The Court allowed both sides to present evidence at the hearing. The Court has considered each party’s Composite
Exhibit #1, presented at the hearing, and given the items contained within the Exhibits their due weight. Neither side
objected to the Court’s consideration of the Exhibits in this fashion.

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and afterwards, Plaintiff alleges the horse grew ill. See id. ¶¶ 45–48. Plaintiff has alleged other
misconduct relating to the surgery at Wellington Equine Associates, see, e.g., id. ¶ 50 (alleging
that Defendant Ben Schachter failed to provide medical records), but his claims center around
the allegedly botched surgery.
Most relevant to this Motion are Counts VI and VII, which mention one of the two
parcels of property for which Plaintiff has filed a lis pendens. Plaintiff has titled Count VI
“Liability of Schachter 5320, L.L.C.” In this Count, Plaintiff adopts by reference previous
allegations and then states, “As owner of the premises located at 5320 South Shore Blvd.,
Wellington, Florida 33449, Schachter 5320, L.L.C. is liable for the deficient and/or negligent
condition of its premises, as described above.” See id. ¶ 74. In Count VII, Plaintiff argues that the
Schachter Defendants—both those bringing this Motion, and others named in the suit—with the
exception of Defendant Kathryn Schachter, “are single owner entities which operate out of the
same facility located at 5320 South Shore Blvd., Wellington, Florida 33449.” Id. ¶ 76. Plaintiff
argues that Defendant Ben Schachter controls the entities and uses them for his own benefit
“with disregard of corporate formalities and to hide his assets and to shield his assets from his
creditors,” and that accordingly, “the corporate entities should be disregarded.” Id.
Also relevant is Plaintiff’s prayer for relief. In his prayer, Plaintiff requests the following:
damages to cover the medical treatment required by the horse as a result of Defendants’ alleged
veterinary malpractice; “[e]conomic, property, and compensatory damages” for damage done to
the horse, loss of his use of the horse, and the time he spent caring for the horse and arranging for
its treatment; punitive damages; and pre-judgment and post-judgment interest. See id. at 31.
On January 22, 2015, Plaintiff filed two Notices of Lis Pendens: one for property located
at 5340 S. Shore Blvd., Wellington, Florida 33449 (DE 9, “the 5340 property”), and one for
property located at 5320 S. Shore Blvd., Wellington, Florida 33449 (DE 10, “the 5320
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property”). Defendants filed this Motion to dissolve the lis pendens as an emergency motion
because Defendant Schachter 5320, LLC has contracted to sell these properties to Rood and
Riddle Real Estate, LLC (the “Buyer”) and closing is scheduled for January 30, 2015 with a
purchase price of $4,400,000.00. See DE 13 at 2; see also DE 18 (certifying that the matter is a
true emergency).
In the instant motion, Defendants assert that the Court should dissolve the lis pendens or,
in the alternative, require Plaintiff to post a $4,400,000.00 bond, because a lis pendens is
inappropriate in the constant of the instant action. For the reasons discussed below, the Court
agrees with Defendants and dissolves both lis pendens, DE 9 and DE 10.
“Unless an initial pleading shows that an action is founded on a duly recorded instrument
concerning the real property described in the lis pendens, the court has the power to control the
notice of lis pendens by discharging it or by requiring the party who filed the lis pendens to post
a bond.” DeGuzman v. Balsini, 930 So. 2d 752, 754 (Fla. Dist. Ct. App. 2006). 2 “A lis pendens is
not an appropriate instrument for use in promoting recoveries in actions for money judgments.”
Id. at 754 (citing 51 Am. Jur. 2d Lis Pendens § 28 (2000)). “When the primary purpose of a
lawsuit is to recover money damages and the action does not directly affect the title to or the
right of possession of real property, the filing of a notice of lis pendens is not authorized.”
Sheehan v. Reinhardt ex rel. Estate of Warren, 988 So. 2d 1289, 1291 (Fla. Dist. Ct. App. 2008)
(quoting DeGuzman, 930 So. 2d at 755).
The Court finds that Plaintiff’s filing of both lis pendens was unauthorized. Plaintiff’s
argument, as the Court discerns from the hearing and from his Response, is that the Schachter
Defendants’ actions have created some sort of cloud on the title, whether it be by an unfulfilled
2

Plaintiff has contended that Defendants are not entitled to rely upon DeGuzman due to amendments made to the
underlying Florida statutes in 2009. However, Florida courts have continued to rely upon DeGuzman after the 2009
amendments and this Court does the same. See, e.g., Blue Star Palms, LLC v. LED Trust, LLC, 128 So. 3d 36, 39
(citing DeGuzman).

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lien he (Plaintiff) maintains on the property, or by improper transfer of the property among the
Schachter Defendants. Plaintiff does not allege the existence of a lien relevant to the properties in
his Complaint. Nor does he argue that transfer was improper, except to the extent it relates to his
argument that the corporate entities involved should be disregarded. It is clear from Plaintiff’s
Complaint that he is attempting to recover damages as a result of his alleged losses, and “the title
to or the right of possession of real property” is only involved to the extent that Plaintiff
considers the relevant property a vehicle for his monetary recovery. 3 Thus, it cannot fairly be
said that his action is “founded on a duly recorded instrument concerning the real property
described in the lis pendens.” DeGuzman, 930 So. 2d at 754. Both lis pendens should be
dissolved.
ORDERED AND ADJUDGED that Defendants’ Verified Emergency Motion to
Dissolve Lis Pendens and for Sanctions [DE 13] is GRANTED, in that the lis pendens for
property located at 5340 S. Shore Blvd., Wellington, Florida 33449 [DE 9] and the lis pendens
for property located at 5320 S. Shore Blvd., Wellington, Florida 33449 [DE 10] are both
DISSOLVED. The Motion is DENIED WITHOUT PREJUDICE as to sanctions. Defendants
may raise the issue again at the close of this litigation.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 28th day of January,
2015.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

3

In fact, as noted above, only one of the two parcels for which Plaintiff has filed a lis pendens, the 5320 property, is
mentioned in the Complaint.

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