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Filing # 140144500 E-Filed 12/10/2021 03:12:37 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ELEVATION DEVELOPMENT II, LLC, Case No. 2021-CA-001956
a Florida limited liability company,
Plaintiff,
Vv.
BRONSON FAMILY LIMITED
PARTNERSHIP, a Nevada limited
partnership,
Defendant.
/
PLAINTIFF, ELEVATION DEVELOPMENT II, LLC’S RESPONSE AND
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT BRONSON FAMILY
LIMITED PARTNERSHIP’S MOTION TO DISSOLVE NOTICE OF LIS PENDENS OR
ALTERNATIVELY, TO REQUIRE PLAINTIFF TO POST BOND
Plaintiff, Elevation Development II, LLC ("Plaintiff or “Elevation”), by the undersigned
counsel, hereby file this Response and Memorandum of Law in Opposition to Defendant Bronson
Family Limited Partnership’s ("Defendant" or “Bronson”) Motion to Dissolve Notice of Lis
Pendens or Alternatively, to Require Plaintiff to Post a Bond (the "Motion"). In support Plaintiff
states the following:
PRELIMINARY STATEMENT
This case involves a dispute between Plaintiff Elevation, as buyer, and Defendant Bronson,
as seller, concerning the breach of a Purchase and Sale Agreement between the parties as to the
purchase of Property in Osceola County, Florida. Plaintiff, Elevation, claims that the seller,
Bronson, breached the Purchase Agreement and seeks specific performance of the Purchase
Agreement. Bronson seeks to have this Court dissolve a duly recorded and properly noticed Lis
Pendens (the "Lis Pendens") involving Elevation’s action for specific performance of the
Agreement with Bronson as seller of the Property. In its Motion, Bronson argues that the Lis
Pendens should be dissolved as it is not founded upon a “duly recorded instrument” and because
Elevation has no interest in title to the Property. Alternatively, Bronson suggests that the Court
require Elevation to post a bond, if the Lis Pendens is not dissolved, as it will be irreparably harmed
by their inability to “freely sell, or otherwise encumber [the] property.”
The only question before the Court to decide in determining whether the Lis Pendens
should be dissolved is whether there is a “fair nexus” between the Property and the claims in
dispute in this lawsuit. While Elevation’s claim for specific performance compelling the sale of
the Property is arguably not founded on a recorded instrument, Elevation’s Complaint seeking
specific performance shows a fair nexus to the Property and satisfies this standard to maintain the
Lis Pendens as a matter of law. As discussed below, since Elevation has a good faith viable claim
for specific performance and the Complaint shows a fair nexus to the Property, the Motion fails to
provide a basis for either dissolving the Lis Pendens or for requiring a bond.
Second, and alternatively, Bronson is not entitled to the posting of a bond because the
Purchase Agreement specifically required that a Memorandum of the Purchase Agreement (See,
Purchase Agreement attached to Complaint as Exhibit “A” to Complaint and Memorandum
attached as Exhibit “B”) be recorded in the public records of Osceola County, Florida
memorializing the Purchase Agreement and satisfying the requirement of a recorded instrument to
maintain a Lis Pendens and further because Bronson cannot demonstrate a loss or damage.
Elevation filed its Complaint against Bronson for breach of contract and for specific
performance (the “Complaint”) of a certain Purchase and Sale Agreement (the “Purchase
Agreement”) effective as of April 29, 2019, for property located in Osceola County, Florida, more
particularly described as follows (the “Property”): Parcel ID Nos. 07-26-29-0000-0020-0000 (the
“Main Parcel”) and 07-26-29-4470-0001-0095 (the “Access Parcel”) alleging that Bronson
improperly terminated the Purchase Agreement. A copy of the Purchase Agreement, together with
the amendments referenced herein, is attached as Exhibit “A.”
Elevation filed the Lis Pendens in conjunction with the filing of the Complaint based on its
claim for specific performance of the Purchase Agreement because Elevation was excused from
closing on the Purchase Agreement due to Bronson’s breach of the Purchase Agreement.
Bronson’s purported, invalid attempt to terminate the Purchase Agreement, in order to resell the
property in a highly appreciated market, does not constitute either a loss or damage, not only
because it is holding a deposit under the Purchase Agreement but because Elevation is ready,
willing and able to close once Bronson has performed all of its obligations under the Purchase
Agreement.
A. INTRODUCTION AND BACKGROUND:
1. The Parties and Disputed Facts
Elevation is a Florida limited liability company and the Buyer stated in the Purchase
Agreement for the sale and purchase of the Property described above and Bronson is the Seller.
Pursuant to Section 8 of the Purchase Agreement Bronson made certain representations and
warranties to Elevation that they had “full power, authority and legal right, and has obtained all
necessary consent and approvals, to execute, deliver and perform its obligations under [the]
Agreement.” Further, Section 8 of the Purchase Agreement required Bronson to execute and
deliver certain documents with respect to the Property, including, but not limited to: “Evidence of
Seller’s authority to convey the Property reasonably acceptable to the Title Insurer”; and “[a]
Memorandum Agreement.”
Pursuant to Section 9(3) of the Purchase Agreement, Bronson made certain representations
and warranties that “[t]o Seller’s actual knowledge, there are no lawsuits pending or, threatened
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against or involving Seller or the Property that affect title.” Section 9(6) of the Purchase Agreement
states in pertinent part, “[t]he foregoing representations are, to the best of Seller’s current, actual
knowledge, without any duty or obligation to investigate or inquire, true, correct and complete, in
all material respects, and the foregoing warranties are in full force and effect and binding on Seller,
as of the date hereof, and shall be true and correct in all material respects and in full force and
effect, as the case may be and deemed to have been reaffirmed and restated by Seller as of the date
and time of the Closing, and shall survive the Closing for a period of one (1) year.”
The Purchase Agreement required Bronson to convey marketable title to Elevation at
closing. In the instant suit, Elevation claims that Bronson could not convey the Property due to an
existing dispute between Bronson and a beneficiary to the Trust as to Bronson’s authority to
execute the Purchase Agreement and Bronson’s ability to convey the Property to Elevation in the
transaction. See Complaint § 41. To this day, the dispute has not been resolved. Based on
Bronson’s failure to satisfy these representations and warranties, establish that it can convey
marketable title to the Property free of any claims and otherwise perform under Section 8 and
Section 9 of the Purchase Agreement, has resulted in a cloud on the marketable title to the Property
excusing Elevation form closing on the transaction.
As alleged in the Complaint, in July of 2019, Plaintiff became aware that David Bronson,
one of the limited partners of Bronson, objected to the Purchase Agreement, claiming, inter alia,
the lack of the general partner’s authority to sell the Property and had sought a judicial dissolution
of Bronson. See Complaint § 13. Thereafter, David Bronson filed a lawsuit styled, David A.
Bronson, individually and as Trustee of David A. Bronson Irrevocable Trust v. Bronson Family
Limited Partnership, Linda A. Bronson, individually and as Trstee of the Qualified Terminable
Interest and Generation Skipping Transfer Trust, and Michael A. Bronson, individually and as
Trustee of the Michael A. Bronson Irrevocable Trust, Case No. 2019-CA-002232-OC, pending in
the Circuit Court of the Ninth Judicial Circuit of Florida in and for Osceola County, Florida (the
“Bronson Suit”). See Complaint § 15. Most recently, in the Bronson Lawsuit, the Court issued an
Order compelling the Parties to arbitration and staying the case pending the final arbitration award.
See Agreed Order on the Joint Stipulation Regarding Arbitration and Mediation attached hereto as
Exhibit “C”.
In addition to the Bronson Lawsuit, Sharon B. Abner, Esq., an attorney at Swann Hadley
Stump Dietrich (“Swann”), that was advising First American Title Company (the “Title
Company”) regarding her examination of title to the Property in conjunction with Swann’s
involvement in the purchase and sale the Property to provide Elevation a Title Commitment for
the purchase of the Property, in order to fully inform the Title Company of any condition that may
ultimately have an effect on the issuance ofa clean title policy, advised the Title Company, after
various conference calls with the Title Company and Bronson’s attorney, that it was determined
that Bronson was not able, or was unwilling to provide sufficient indemnifications or consents that
would be required to eliminate issues concerning the Bronson Lawsuit. See Affidavit of Sharon B.
Abner, attached hereto as Exhibit “D”. Therefore, the Title Company elected not to take the risk
of insuring the Property due to the pending Bronson Lawsuit. /d. She further advised that the
Bronson Lawsuit brought up concerns for Elevation’s disclosure obligations to future investors
and lenders. /d. Further, David Bronson’s counsel made clear that David Bronson was not in
agreement with Elevation proceeding with the Agreement and threatened to sue Elevation if the
Agreement proceeded. Complaint § 18. Further, the Title Company, which issued the ALTA Title
Commitment for the transaction, Commitment No. 2037-4341932 (the “Title Commitment”), had
included in the Title Commitment specific requirements to confirm the authority of Bronson to
execute the deed or otherwise transfer title to the property. See Complaint § 11 and 13.
Additionally, during Elevation’s negotiations with Osceola County for the approval of their
development plan, the School Board for Osceola County determined that they were entitled to an
allocation of the Property for a school site, referencing Special Condition #10 of the Bronson Bay
PD07-00057, which related to a separate project across Pleasant Hill Road owned by Bronson. See
Complaint § 27-28. Although the Board of County Commissioners for Osceola County approved
Elevation’s development plan, the School Board reserved its rights at the hearing to require a
dedication of the school site. See Complaint { 37. The final determination of the school site would
be made part of the Site Development Plan approval process and was not resolved by the closing
date. See Complaint § 38.
The School Board allocation and Bronson Suit, which were never resolved, create
marketability of title issue, affecting Elevation’s future rights and ability to sell the Property, and
further, other insurers could refuse to insure title without including an exception for the Bronson
Suit. The Bronson Suit is also a breach of the representations and warranties made by Bronson
under the Purchase Agreement.
The basis for Elevation’s claim is that Bronson could not convey marketable title as
required by the Purchase Agreement. Until Bronson performs its obligations under the Purchase
Agreement, Elevation is not required to close and may seek specific performance by Bronson to
fulfill its obligations set forth in the Purchase Agreement.
Notably, pursuant to section 8(h) of the Purchase Agreement the Parties were required to
execute and deliver a “Memorandum of Agreement,” the purpose of which was to create a
recordable document to “provide public notice of the effect of the Agreement to any and all
properties referred to therein.” Further, section 27 of the Purchase Agreement, entitled
“Recording”, states, “Seller and Buyer agree that a Memorandum of this Agreement
(“Memorandum of Agreement”), in the form attached as Exhibit “B” attached hereto and made a
part hereof, shall be recorded in the public records of Osceola County, Florida.” See Purchase
Agreement. Thus, the Parties agreed to execute and record the Memorandum of the Purchase
Agreement. Bronson, however, failed to execute the Memorandum of Agreement as required by
the Purchase Agreement.
B. MEMORANDUM OF LAW, APPLICABLE LAW AND ARGUMENT
1 The Lis Pendens is proper.
Florida Statute Section 48.23 provides that
(3) When the pending pleading does not show that the action is founded on a
duly recorded instrument or on a lien claimed under part I of chapter 713 or
when the action no longer affects the subject property, the court shall control
and discharge the recorded notice of lis pendens as the court would grant and
dissolve injunctions.
Fla. Stat. Ann. § 48.23 (West). While Elevation’s claims for specific performance of the Purchase
Agreement for the sale of the Property are not directly founded on a recorded instrument,
Elevation’s complaint shows a fair nexus to the Property and this is the standard that must be met
to maintain the lis pendens. This standard to maintain a lis pendens was articulated by the Florida
Supreme Court in Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993). There, the Court stated as
follows:
unlike a typical injunction, a lis pendens exists as much to warn third parties as to
protect the plaintiff; and the procedural requirements associated with lis pendens
should advance both of these important purposes.
Thus, we believe that the lis pendens cannot be dissolved if, in the evidentiary
hearing on request for discharge, the proponent can establish a fair nexus
between the apparent legal or equitable ownership of the property and the
dispute embodied in the lawsuit. To this end, the trial court need not determine
whether there is any likelihood the property will be alienated or subjected to
intervening liens during the pendency of the cause. The relevant question is whether
alienation of the property or the imposition of intervening liens, if either actually
occurred, conceivably could disserve the purposes for which lis pendens exists.
Where the answer is yes, fair nexus must be found.
Based on the policy outlined above, we do not agree that any greater proof is
required of the proponent. We agree with the observation in Sparks v. Charles
Wayne Grp.J, 568 So.2d 512, 517 (Fla. 5th DCA 1990), that the statutory
reference to injunctions exists merely to permit property holders to ask in an
appropriate case that the plaintiff post a bond where needed to protect the
former from irreparable harm. The bond requirement, whenever appropriate, is
a vehicle for protecting the property holders just as the lis pendens protects the
plaintiff and third parties.
Chiusolo v. Kennedy, 614 So. 2d 491, 492-93 (Fla. 1993) (emphasis added). Accordingly, to
determine whether there is a nexus between the property and the lawsuit, the court should not
require a duly recorded instrument as a bright-line test. Aryeh Trading v. Trimfast Grp., Inc., 778
So. 2d 336, 337 (Fla. 2d DCA 2000). Rather, the court should review the complaint, the contract,
and any other relevant evidence to determine if there is a fair nexus between the property and the
dispute. Id.; see Avalon Assocs. of Delaware Ltd. vy. Avalon Park Assocs., Inc., 760 So. 2d 1132,
1135 (Fla. Sth DCA 2000) (finding a fair nexus based on contract even though there was no duly
recorded instrument). A “fair nexus” between the plaintiffs claim and the property subject to a lis
pendens is established by way of a “good faith, viable claim,” if the proponent of the lis pendens
makes “a minimal showing that there is at least some basis for the underlying claim [a]nd ...
show[s] that he or she has a good faith basis to allege facts supporting a claim and that the facts
alleged would at least state a viable claim.” Regents Park Investments, LLC v. Bankers Lending
Servs., Inc., 197 So. 3d 617, 621 (Fla. 34 DCA 2016); see also LB Judgment Holdings, LLC v.
Boschetti, 271 So. 3d 115, 119 (Fla. 3d DCA 2019).
2. There is a fair nexus between the Lis Pendens and the Property and the Lis
Pendens warns all persons that the property is in litigation, precisely the
purpose of a lis pendens.
Literally defined, the term “lis pendens” means a pending action.! A notice of lis pendens
is a notice filed on the public records to warn all persons that the title to certain property is in
litigation.” It is designed to preserve the status of the property involved in litigation. Section 48.23,
Fla. Stat. requires that a notice of lis pendens be recorded in the office of the clerk of the circuit
court of the county where the property is located before the doctrine of lis pendens comes into
play.> The doctrine holds that the notice bars all interests and liens unrecorded at the time the
notice is filed unless the holder of such unrecorded interest intervenes in the proceedings within
twenty days of filing.
The lis pendens statute serves to protect the plaintiff, but it also serves a notice function,
by giving future purchasers or those who may wish to encumber the property fair warning that a
suit has been filed that could affect title in the property.> The defendant is protected by reducing
the chances that a “bona fide purchaser” will somehow extinguish any equitable claim the plaintiff
may have in the property involved in the litigation.° The lis pendens is notice of all facts apparent
on the face of the pleadings and such other facts as the pleadings would necessarily put others on
1 See BLACK'S LAW DICTIONARY 932 (6th ed. 1990); Medical Facilities Dev., Inc. v. Little Arch Creek
Prop., Inc., 675 So. 24 915, 917 (Fla. 1996) (“While the term ‘lis pendens’ literally implies a pending suit, it is defined
as the jurisdiction, power, or control which courts acquire over property involved in a pending suit.”).
2 Under the common law, the filing of litigation affecting property operated as a lis pendens, which has been
modified by statute, §48.23, Fla. Stat. See DePass v. Chitty, 105 So. 148, 149 (Fla. 1925).
3 § 48.23, Fla. Stat.
* § 48.23(1)(b), Fla. Stat. The filing of the notice does not create any property rights or give the litigant any
superior right to the property. Thus, upon discharge of the lis pendens, the status of the property is unaffected. See
National Bank of Sarasota v. Dugger, 335 So. 2d 859, 861 (Fla. 2d DCA 1976).
* Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993); Procacci v. Zacco, 402 So. 2d 425, 427 (Fla. 4th
DCA 1981).
6 Medical Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 656 So. 2d 1300 (Fla. 34 DCA 1995)
inquiry.”
In Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993) the Florida Supreme Court held that
the proponent of the lis pendens, which is not founded on a recorded instrument or lien, has the
burden of showing a fair nexus between the property and the lawsuit. The court explained:
that the lis pendens cannot be dissolved if, in the evidentiary hearing on
request for discharge, the proponent can establish a fair nexus between the
apparent legal or equitable ownership of the property and the dispute
embodied in the lawsuit. To this end, the trial court need not determine
whether there is any likelihood the property will be alienated or subjected to
intervening liens during the pendency of the cause. The relevant question i
whether alienation of the property or the imposition of intervening liens,
if either actually occurred, conceivably could disserve the purposes for
which lis pendens exists. Where the answer is yes, fair nexus must _be
found.
Id. at 493; (emphasis added).
In determining whether there is a nexus between the property and the lawsuit a court should
not look solely to whether there is a duly recorded instrument. /d. Instead, the court should review
the complaint, the contract, and any other relevant evidence to determine if there is a fair nexus
between the property and the dispute. * The burden of proof is on the Proponent of the Lis Pendens
to establish that.
In the instant case, a review of the Complaint as well as the contract attached demonstrate,
there is a fair nexus between the Property on which the Lis Pendens is filed and the dispute between
7 See Procacci v. Zacco, 402 So. 2d at 427 (holding that the filing of a notice of lis pendens is encompassed
within the judicial proceedings privilege because it has no separate existence apart from the litigation of which it gives
notice. Thus, a claim for slander of title or for tortious interference with a contractual relationship could not be
predicated on the filing of such a notice.).
8 Aryeh Trading v. Trimfast Group, Inc., 718 So. 2d 336, 337 (Fla. 2d DCA 2000) (reversing the trial court
for dissolving a lis pendens it determined was not founded on a recorded instrument without analyzing whether there
was a fair nexus); see also Avalon Associates of Delaware Ltd. v. Avalon Park Associates Inc., 760 So. 2d 1132 (Fla.
5th DCA 2000) (finding a fair nexus despite the fact that there was no duly recorded instrument in a case based on a
contract).
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the parties. Indeed, the relevant question for the court here on Bronson’s Motion is whether
Bronson’s alienation of the property or the imposition of some intervening liens, if either actually
occurred, “conceivably” could disserve the purposes for which the Lis Pendens exists.
The fact is, Elevation — who entered into a purchase contract for the Property must be
protected by reducing the chances that a “bona fide purchaser” will somehow extinguish its
equitable specific performance claim Elevation may have in the Property involved in the litigation,
in the absence of the Lis Pendens. Importantly, the Court here need not determine whether there
is any likelihood the property will actually be alienated or subjected to intervening liens by
Bronson or anyone else during the pendency of the cause. Rather, the Court need simply determine
whether it is conceivable that the property could be alienated and whether Elevation has a good
faith viable claim for specific performance, as alleged in its claim set forth in the Complaint.” If
there is and they do, then there is a fair nexus and the Lis Pendens is proper.
To establish a good faith viable claim for specific performance, the proponent of the lis
pendens is not required to prove a substantial likelihood of success on the merits, but rather need
only show that “it could establish all the necessary elements of that claim at the hearing on the
motion for discharge.” See Regents Park Investments, LLC at 621 citing Chiusolo. “In order to
invoke the remedy of specific performance...the plaintiff must prove that ‘as a condition precedent
to specific performance it either paid the contract sum; tendered it; was ready willing and able to
do so; or was excused from so doing.’” /d. Elevation can meet its burden simply through showing
that there was in fact a valid binding contract and that Elevation had an excuse not to close.
Here, Elevation holds a valid purchase contract and was excused from closing due to
Bronson’s inability to provide marketable title and maintain its representations and warranties
° Bergmann y. Slater, 922 So.2d 1110 (Fla. 4th 2006).
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under the Purchase Agreement. Even a cursory review of Elevation’s claim shows that they entered
a written contract to purchase real property from Bronson. Bronson cannot maintain its
representations and warranties made under the Purchase Agreement and was not able to deliver
marketable title to the property as required under the Purchase Agreement due to the pending claim
by David Bronson attacking Bronson’s legal authority to convey the Property to Elevation. The
Bronson Lawsuit puts Elevation at risk of buying into a lawsuit. The Bronson Lawsuit objects to
the sale of the Subject property and Challenges Bronson’s authority to enter into the Purchase
Agreement. If successful, the Bronson Lawsuit can have the effect of nullifying the Purchase
Agreement. Such a result is an extreme risk to Elevation that Bronson expressly warranted against
and must be resolved. To resolve the cloud on title caused by the Bronson Lawsuit, Bronson can
move forward with arbitration as required by the court. Due to the Bronson Lawsuit the Parties did
not close on the deal and Bronson is seeking to cancel the Agreement; hence, Elevation brought
their specific performance claim and filed the Lis Pendens asking the Court to intervene and
require that Bronson specifically perform the terms it agreed to, i.e. provide marketable title to the
Property and close on the deal.
This Lis Pendens — nothing more and nothing less -- put the world on notice regarding this
litigation, the precise purpose of a lis pendens, where Bronson is trying to back out of their
obligations under a valid contract so that they could “conceivably” sell to others, and where
Elevation is asking for specific performance of the purchase contract they hold. Again, the Court
need not decide on the issue of which party is in default at this point as this is an issue of fact, but
rather whether there is a good faith, viable claim.
There is a direct connection between the claim over the Property raised in this litigation
and the Property on which the Lis Pendens is filed. On the facts here, there is a fair nexus between
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the Lis Pendens and the real property at issue in the litigation and the Lis Pendens is proper.
3. A bond is not required and is not necessary here where the developer, Bronson,
will not suffer any damages a result of Elevation’s filing of the Lis Pendens and
Bronson failed to execute the Memorandum of Agreement which was intended
by the Parties to be a recordable document for public notice of the Agreement.
A lis pendens bond is not mandatory. A bond may be appropriate when the property-holder
defendant can show that damages will likely result to that defendant in the event the notice of lis
pendens is unjustified. Med. Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 675 So. 24
915, 916 (Fla. 1996). The reference to injunctions in Section 48.23(3) of the lis pendens statute
“exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond
where needed to protect the former from irreparable harm.” Chiusolo, 614 So. 2d at 493. “The
bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as
the lis pendens protects the plaintiff and third parties.” /d. The trial court, however, may also
consider the likelihood of other damages which do not meet the standard of irreparable harm. Jd.
Requiring a bond is within the court’s discretion. Med. Facilities Dev., Inc., 675 So. 2d at 916.
The court’s discretion in determining the amount of a lis pendens bond is not unfettered.
The amount of the bond should bear a reasonable relationship to the amount of damages which the
property-holder defendant demonstrates will likely result if it is later determined that the notice of
lis pendens was unjustified. S & T Builders v. Globe Properties, Inc., 944 So. 2d 302, 304 (Fla.
2006); Mitchell v. Metro. at Lake Eola, LLC, 947 So. 2d 1263, 1264 (Fla. Sth DCA 2007). The
burden is on Bronson to demonstrate by evidence the amount of potential damage it might suffer
due to the lis pendens. /d. Although potential damages are specific to each case, generally, the
appropriate measure of damages is “the difference between the fair market value at the time of
filing of the /is pendens and the fair market value at the time of its termination, plus any
consequential damages, including the award of operating expenses if the property declined in
13
value, prejudgment interest from the date of termination of the /is pendens, and attorney’s fees.”
Santa Catalina Townhomes, Inc. v. Mirza, 925 So. 2d 1147, 1147 (Fla. 4th DCA 2006); Mitchell,
947 So. 2d at 1264; Haisfield v. ACP Florida Holdings, Inc., 629 So.2d 963 (Fla. 4th DCA 1993).
“In order to sustain a claim for consequential damages arising out of wrongful lis pendens, a
wronged seller must show a diligent yet unsuccessful attempt to resell the property after the buyer
breached the agreement.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So. 3d 905, 910 (Fla.
4th DCA 2010)(finding the vendor did not suffer damages attributable to the lis pendens).
Section 48.23, Florida Statutes creates two types of lis pendens. The first exists where the
action underlying the lis pendens is “founded” upon a duly recorded instrument or a mechanic's
lien. A plaintiff does not need to post a bond in connection with this type of lis pendens.'° The
second type of lis pendens envisions an underlying action not founded on a duly recorded
instrument or mechanic's lien.'' With this second type of lis pendens, the statute authorizes the
trial court to “control and discharge the notice of lis pendens as the court may grant and dissolve
912
injunctions.
Here, a bond is not necessary. First, a bond should not be required here as the Parties agreed
to record a Memorandum of Agreement in the public records of Osceola County, Florida, which
was intended to provide public notice of the effect of the Agreement to the Property. But for
10 See Florida Peach Corp. of Am., Int'l Div., S.A. y. Lurie, 411 So. 2d 339, 340 (Fla. Sth DCA 1982);
Chapman v. L & N Grove, Inc., 244 So. 2d 154, 157 (Fla. 2d DCA 1971), overruled on other grounds by Am. Legion
Cmty. Club v. Diamond, 561 So, 2d 268 (Fla. 1990)
11 § 48,23(3), Fla. Stat.
? Finkelstein v. Finkelstein, 603 So. 2d 715, 716 (Fla. 4th DCA 1992), stated that two consequences attach
to the filing of a notice of lis pendens where the relief sought is neither founded upon a mechanic's lien nor a recorded
instrument: (1) the notice expires after one year if not extended by order of the court and (2) control and discharge of
the notice as in the case of granting and dissolving injunctions is vested in the trial court.
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Bronson’s refusal to sign the Memorandum of Agreement as required by the Agreement, there
would be no issue as to whether or not a bond should be posted in connection with the Lis Pendens.
In this instance, the Court should find that Bronson waived any bond requirement by their
agreement to record the Memorandum of Agreement, or in the alternative, require Bronson to
perform according to the Agreement and execute the Memorandum of Agreement to be recorded
in the public records for Osceola County, Florida.
Second, concerning the damages issue, in Medical Facilities Dev., Inc. v. Little Arch Creek
Prop., Inc., 675 So. 2d 915, 917 (Fla. 1996), the Court held that, in situations governed by §
48.23(3), the trial court has the discretion to determine whether to require the lis pendens proponent
to post a bond when the property-holder defendant can show that damages will likely result to that
defendant in the event that the notice of lis pendens is unjustified. Indeed, there are many instances
where trial courts do not require a bond.
For example, in Santa Catalina Townhomes, Inc. v. Mirza, much like in the present case,
where a property purchaser brought an action against a developer for specific performance of a
contract for construction and sale of a property, and the purchaser filed a notice of lis pendens, the
Fourth DCA did not require the purchaser to post a bond absent a showing by the developer as to
the likely damages it would suffer and the amount thereof. See Santa Catalina Townhomes, Inc. v.
Mirza, 2006 WL 1083433, 1 (Fla. 4th DCA 2006).'3
In the instant case, Bronson is seeking to ‘rescind’ the contract for the purchase of real
property. Nowhere, however, does Bronson disavow that it entered the Purchase Agreement or
33 The Santa Catalina Court ruled that the proper method of measuring damages for a wrongful lis pendens
is limited to “the difference between the fair market value at the time of filing of the lis pendens and the fair market
value at the time of its termination.” See Id.; Haisfield v. ACP Florida Holdings, Inc. 629 So.2d 963, 966 (Fla. 4th
DCA 1993).
15
that the Purchase Agreement itself is binding; nowhere does it demonstrate that it will suffer
damages if it is forced to close on the Purchase Agreement it entered. Instead, Bronson argues that
they will be harmed by their inability to freely sell or otherwise encumber the Property.
The fact of the matter, however, is that this court has the discretion to determine that no
bond is required, and that is precisely what the court should do. The facts here show that Bronson
refused to sign the Memorandum of Agreement which was intended to be the recordable document
putting the public on notice of the effect of the Purchase Agreement on the Property, and Bronson
did not, and cannot, demonstrate any damages. Further, the facts show that Elevation is excused
from being ready, willing and able to close due to Bronson’s default on the Purchase Agreement
and the Lis Pendens serves a valid purpose of permitting the Elevation to seek their specific
performance claim against Bronson who is opportunistically reneging on the deal with the
knowledge that the property can be sold today at a much greater price.
C. CONCLUSION
Based upon the foregoing, as well as the evidence and the arguments to be made at the
hearing, the Court should deny Defendant, Bronson’s Motion to Dissolve Lis Pendens and/or
Require the Posting of a Bond, and should the Court require the posting of a bond that a further
evidentiary hearing be held to determine the amount and/or appropriateness of same, and any such
further relief the Court deems just and equitable.
Dated: December 10, 2021
Respectfully submitted,
/s/ Edmund 0. Loos IIT
EDMUND O. LOOS III, ESQUIRE
Florida Bar No. 899161
Email 1: Edmund.Loos@gmlaw.com
Email 2: tami.austin@gmlaw.com
CHAD J. TAMAROFF, ESQUIRE
Florida Bar No: 0163368
16
Email 1: Chad. Tamaroff@gmlaw.com
Email 2: Agatha.McTier@gmlaw.com
PATRICK HENNESSEY, ESQUIRE
Florida Bar No.: 0106964
Email 1: Ellis. Marder@gmlaw.com
Email 2: Eric.Cruz@gmlaw.com
GREENSPOON MARDER LLP
201 East Pine Street, Suite 500
Orlando, FL 32801
Telephone: 407-425-6559
Facsimile: 407-422-6583
Counsel for Plaintiff; ELEVATION
DEVELOPMENT II, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 10, 2021, I filed the foregoing with the Clerk of
the Court via the Florida ePortal filing system, which will provide an electronic notification to:
Attorneys for Defendant
Todd K. Norman, Esq.,
Benjamin Burleson, Esq.,
Nelson Mullins Riley & Scarborough LLP,
390 North Orange Ave., Suite 1400, Orlando, FL 33802
todd.norman@nelsonmullins.com,
Benjamin.burleson@nelsonmullins.com;
shawana.watt@nelsonmullins.com;
Katherine.reynolds@nelsonmullins.com.
/s/ Edmund 0. Loos IIT
EDMUND O. LOOS III, ESQUIRE
17
EXHIBIT
A
EXHIBIT "A"
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and
entered into as of the Effective Date (as defined in Section 23 below) by and between BRONSON
FAMILY LIMITED PARTNERSHIP, a Nevada limited partnership (hereinafter called
“Seller”), and ELEVATION DEVELOPMENT II, LLC a Florida limited liability company
(hereinafter called “Buyer”),
WLITNESSETH:
FOR AND IN CONSIDERATION of the Earnest Money {as hereinafier defined), the
covenants and agreements contained in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be
legally bound. hereby agree as follows:
1 Purchase and Sale. Seller agrees to sell, and Buyer agrees to purchase that certain
real property located on Pleasant Hill Rd, in Kissimmee, Osceola County, Florida, Tax Parcel
Identification Number 07-26-29-0000-0020-0000 and 07-26-29-4470-0001-0095, being mote
particularly described on Exhibit A attached hereto and made a part hereof, together with all of
Seller's right, title and interest, if'any, in and to: (i) prepaid impact, transportation, utility, capacity
reservation fees and any other credits or deposits pertaining to the land: (ii) all easements, rights
of way, strips and gores of land, tenements, hereditaments, privileges, licenses and appurtenances,
reversions and remainders in any way belonging, remaining or appertaining thereto; and (iii)
together with all improvements, fixtures, personal property, trees, timber, oil, gas and minerals
located thereunder or thereon (collectively referred to as the “Property”).
2 Purchase Price, Method of Payment. The. purchase price for the Property
(hereinafter called the “Purchase Price”) shall be EIGHT MILLION, THREE HUNDRED
THOUSAND and NO/100 DOLLARS ($8,300,000.00). The Purchase Price shall be paid by
Buyer to Seller on the Closing Date (as hereinafter defined) after crediting the Deposit, and subject
to the prorations and adjustments hercinafler described, by wire transfer of immediately available
funds.
3 Earnest Money. Within three (3) business days after the Effective Date, Buyer shall
deliver to Integrity First Title, LLC (hereinafter referred to as “Escrow Agent”), a good faith
earnest money deposit of TWENTY-FIVE THOUSAND and NO/100 DOLLARS ($25,000.00)
(said deposit, together with all interest earned thereon, being hereinafter collectively called the
“Earnest Money”). An Additional Deposit (“Additional Deposit") of SEVENTY-FIVE
THOUSAND and NO/100 Dollars ($75,000.00) will be due within three (3) business days after
the end of the Feasibility Period as set forth in Section 7 below. At the end of the Feasibility
Period, the Earmest Money deposit together with the Additional Deposit, shall be referred to as (the
“Deposit™), which shall be held and disbursed by Escrow Agent in accordance with the terms and
conditions of this Agreement.
4 Duties of Escrow Agent. Escrow Agent is authorized and agrees by acceptance of
the Deposit to hold and deliver same in accordance with the terms of this Agreement. in the event
of doubt as to its liabilities or duties, Escraw Agent may, in its sole discretion and any other
BLivrse 709
EMSA AGT AMS
provision of this Agreement to the contrary notwithstanding, (a) continue to hold the Deposit until
the parties mutually agree to the disbursement thereof or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties to the Deposit, or (b) deliver the Deposit to the
Clerk of the Circuit Court for Osceola County, Florida, and, upon notifying all parties concerned
of such action, all liability on the part of Escrow Agent shall terminate except to account for any
monies previously delivered out of escrow.
In the event of any suit wherein Escrow Agent is made a party by virtue of acting as escrow
agent, or in the event of any suit initiated by or against Escrow Agent wherein Escrow Agent
interpleads the Deposit, Escrow Agent shall be entitled to recover its reasonable atlomneys' and
paralegals’ fee and costs incurred before, during and after trial and upon all appellate levels, said
fees and costs to be charged and assessed as court costs in favor of Escrow Agent and immediately
paid by the non-prevailing party. The parties agree that Escrow Agent shall not be liable to anyone
for misdelivery to Buyer or Seller of monies out of escrow unless such misdelivery shall be due to
willful or reckless breach of this Agreement or gross negligence on the part of Escrow Agent.
Buyer and Seller each agrees to hold Escrow Agent harmless from any and all loss, cost or expense,
including reasonable attorneys' and paralegals’ fees, resulting from Escrow Agent’s compliance
with its obligations hereunder.
Escrow Agent shall not be liable for any loss resulting from any default, error, action or
omission of Buyer or Seller, loss or impairment of funds in the course of collection or while on
deposit resulting from failure or suspension of the depository institution, or from Escrow Agent's
compliance with any legal process, order or judgment of any court, whether or not subsequently
vacated or modified. Buyer and Seller acknowledge that Escrow Agent shall not be liable for any
loss arising from the fact that the common escrow account maintained by Escrow Agent for this
and other transactions may cause the aggregate amount of any individual depositor's account to
exceed applicable deposit insurance coverage.
5. Title Examination and Objections.
a. Seller shall convey the Property to Buyer, {ree and clear of all liens and
encumbrances, subject only to (i) the lien of taxes not yet due and payable, (ii) all matters that
would be revealed by a current and accurate survey and inspection of the property and which are
waived or to which timely objection is not made by Buyer pursuant to this Section 4, (iii) all
matters of record which are waived or to which timely objection is not made by Buyer pursuant to
this Section 4, and (iv) any other matters of title to which Buyer shall expressly consent {each
hereinafter called a “Permitted Exception” and collectively, the “Permitted Exceptions”).
b Within forty-five (45) days of the Effective Date, Buyer, at Buyer’s sole
cost and expense, shall obtain a title insurance commitment (the “Title Commitment”)
committing to insure title in Buyer in the amount of the Purchase Price, together with copies of all
matters of record to which the Property is subject and which are shown as exceptions to title in the
Title Commitment. The Title Commitment shall be issued by First American Title Insurance
Company (the “Title Company”). Buyer shall have twenty (20) days after its receipt of the Title
Commitment within which to examine title to the Property and provide to Seller written notice of
any matters affecting title that are unacceptable to Buyer (“Title Objection(s)”). If Buyer fails to
give any notice to Seller by such date, Buyer shall be deemed to have waived such right to object
2
saa y7s8.-A3I2 LEBSTSO AGT ALG
to any title exceptions or defects, and all matters shown by the Title Commitment shall be deemed
to be Permitted Exceptions.
€. Seller shall have thirty (30) days from receipt of Buyer’s Title Objections
in which to review said objections, and advise Buyer on whether Seller will attempt to cure any
objections specified in Buyer's notice. If Seller fails to deliver said notice within said thirty (30)
day period, or if Seller notifies Buyer that Seller does not intend to attempt to cure any or all of
Buyer’s Title Objections, then Buyer shall have the right, at Buyer's option, to terminate this
Agreement by giving written notice to Seller within ten (10) days after the expiration of such thirty
(30) day period, in which event the Eamest Money shall be refunded to Buyer promptly upon
request, all rights and obligations of the parties hereunder shall expire (except for those which
expressly survive any such termination) (the “Surviving Obligations”), and this Agreement shal]
otherwise become null and void. If Buyer fails to terminate this Agreement within the time limit
specified above, Buyer shall be deemed to have waived any objection specified in Buyer's notice
of Title Objections as to which Seller has given Buyer such notice, and such Title Objection(s)
shall thereafter constitute a Permitted Exception under this Agreement
d In the event Seller clects to attempt to cure any Title Objection(s), Seller
shall have until the Closing Date to satisfy any such objections and, if Seller fails to cure or satisfy
any such objections which it has expressly agreed to satisfy, then, at the option of Buyer, Buyer
may: (i) terminate this Agreement, in which event the Deposit shall be refunded to Buyer promptly
upon request, all rights and obligations of the parties hereunder shall expire and this Agreement
shall become null and void, except with respect to the Surviving Obligations; or, (ii) waive such
satisfaction and performance and elect to close without any reduction in the Purchase Price, and
all objections so waived shall thereafter constitute Permitted Exceptions under this Agreement.
e. Notwithstanding anything contained herein to the contrary, Seller shal] have
the right, but not the obligation, to cure or correct any title objections, excepting only mortgages
or other monetary liens voluntarily incurred by Seller (“Monetary Liens”). Seller shall be required
to satisfy any and all Monetary Liens on or before Closing, failing which, Buyer may apply a
portion of the Purchase Price against any Monetary Liens at Closing, in an amount necessary to
satisfy such Monetary Liens (including all costs of satisfaction of record).
£ Within fifteen (15) days of Closing, Buyer shall update the Title
Commitment and provide either an endorsement to the Title Commitment or a revised Title
Commitment, Buyer shall have five (5) days from receipt of said update to review same and
provide title objections that Buyer may have as to matters first appearing of record subsequent to
Buyer's initial objection, or to matters that were prior to the time of the effective date of the Title
Commitment, but did not appear on the Title Commitment. The times and rights of Seller and
Buyer after Buyer’s subsequent objections shall correspond with the original title responses.
8 Seller hereby covenants that it shall not voluntarily transfer, sell, assign,
encumber, lease, hypothecate or otherwise dispose of any or all of its right, title and interest in and
to the Property nor cons
Preview
Filing # 140144500 E-Filed 12/10/2021 03:12:37 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ELEVATION DEVELOPMENT II, LLC, Case No. 2021-CA-001956 a Florida limited liability company, Plaintiff, Vv. BRONSON FAMILY LIMITED PARTNERSHIP, a Nevada limited partnership, Defendant. / PLAINTIFF, ELEVATION DEVELOPMENT II, LLC’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT BRONSON FAMILY LIMITED PARTNERSHIP’S MOTION TO DISSOLVE NOTICE OF LIS PENDENS OR ALTERNATIVELY, TO REQUIRE PLAINTIFF TO POST BOND Plaintiff, Elevation Development II, LLC ("Plaintiff or “Elevation”), by the undersigned counsel, hereby file this Response and Memorandum of Law in Opposition to Defendant Bronson Family Limited Partnership’s ("Defendant" or “Bronson”) Motion to Dissolve Notice of Lis Pendens or Alternatively, to Require Plaintiff to Post a Bond (the "Motion"). In support Plaintiff states the following: PRELIMINARY STATEMENT This case involves a dispute between Plaintiff Elevation, as buyer, and Defendant Bronson, as seller, concerning the breach of a Purchase and Sale Agreement between the parties as to the purchase of Property in Osceola County, Florida. Plaintiff, Elevation, claims that the seller, Bronson, breached the Purchase Agreement and seeks specific performance of the Purchase Agreement. Bronson seeks to have this Court dissolve a duly recorded and properly noticed Lis Pendens (the "Lis Pendens") involving Elevation’s action for specific performance of the Agreement with Bronson as seller of the Property. In its Motion, Bronson argues that the Lis Pendens should be dissolved as it is not founded upon a “duly recorded instrument” and because Elevation has no interest in title to the Property. Alternatively, Bronson suggests that the Court require Elevation to post a bond, if the Lis Pendens is not dissolved, as it will be irreparably harmed by their inability to “freely sell, or otherwise encumber [the] property.” The only question before the Court to decide in determining whether the Lis Pendens should be dissolved is whether there is a “fair nexus” between the Property and the claims in dispute in this lawsuit. While Elevation’s claim for specific performance compelling the sale of the Property is arguably not founded on a recorded instrument, Elevation’s Complaint seeking specific performance shows a fair nexus to the Property and satisfies this standard to maintain the Lis Pendens as a matter of law. As discussed below, since Elevation has a good faith viable claim for specific performance and the Complaint shows a fair nexus to the Property, the Motion fails to provide a basis for either dissolving the Lis Pendens or for requiring a bond. Second, and alternatively, Bronson is not entitled to the posting of a bond because the Purchase Agreement specifically required that a Memorandum of the Purchase Agreement (See, Purchase Agreement attached to Complaint as Exhibit “A” to Complaint and Memorandum attached as Exhibit “B”) be recorded in the public records of Osceola County, Florida memorializing the Purchase Agreement and satisfying the requirement of a recorded instrument to maintain a Lis Pendens and further because Bronson cannot demonstrate a loss or damage. Elevation filed its Complaint against Bronson for breach of contract and for specific performance (the “Complaint”) of a certain Purchase and Sale Agreement (the “Purchase Agreement”) effective as of April 29, 2019, for property located in Osceola County, Florida, more particularly described as follows (the “Property”): Parcel ID Nos. 07-26-29-0000-0020-0000 (the “Main Parcel”) and 07-26-29-4470-0001-0095 (the “Access Parcel”) alleging that Bronson improperly terminated the Purchase Agreement. A copy of the Purchase Agreement, together with the amendments referenced herein, is attached as Exhibit “A.” Elevation filed the Lis Pendens in conjunction with the filing of the Complaint based on its claim for specific performance of the Purchase Agreement because Elevation was excused from closing on the Purchase Agreement due to Bronson’s breach of the Purchase Agreement. Bronson’s purported, invalid attempt to terminate the Purchase Agreement, in order to resell the property in a highly appreciated market, does not constitute either a loss or damage, not only because it is holding a deposit under the Purchase Agreement but because Elevation is ready, willing and able to close once Bronson has performed all of its obligations under the Purchase Agreement. A. INTRODUCTION AND BACKGROUND: 1. The Parties and Disputed Facts Elevation is a Florida limited liability company and the Buyer stated in the Purchase Agreement for the sale and purchase of the Property described above and Bronson is the Seller. Pursuant to Section 8 of the Purchase Agreement Bronson made certain representations and warranties to Elevation that they had “full power, authority and legal right, and has obtained all necessary consent and approvals, to execute, deliver and perform its obligations under [the] Agreement.” Further, Section 8 of the Purchase Agreement required Bronson to execute and deliver certain documents with respect to the Property, including, but not limited to: “Evidence of Seller’s authority to convey the Property reasonably acceptable to the Title Insurer”; and “[a] Memorandum Agreement.” Pursuant to Section 9(3) of the Purchase Agreement, Bronson made certain representations and warranties that “[t]o Seller’s actual knowledge, there are no lawsuits pending or, threatened 3 against or involving Seller or the Property that affect title.” Section 9(6) of the Purchase Agreement states in pertinent part, “[t]he foregoing representations are, to the best of Seller’s current, actual knowledge, without any duty or obligation to investigate or inquire, true, correct and complete, in all material respects, and the foregoing warranties are in full force and effect and binding on Seller, as of the date hereof, and shall be true and correct in all material respects and in full force and effect, as the case may be and deemed to have been reaffirmed and restated by Seller as of the date and time of the Closing, and shall survive the Closing for a period of one (1) year.” The Purchase Agreement required Bronson to convey marketable title to Elevation at closing. In the instant suit, Elevation claims that Bronson could not convey the Property due to an existing dispute between Bronson and a beneficiary to the Trust as to Bronson’s authority to execute the Purchase Agreement and Bronson’s ability to convey the Property to Elevation in the transaction. See Complaint § 41. To this day, the dispute has not been resolved. Based on Bronson’s failure to satisfy these representations and warranties, establish that it can convey marketable title to the Property free of any claims and otherwise perform under Section 8 and Section 9 of the Purchase Agreement, has resulted in a cloud on the marketable title to the Property excusing Elevation form closing on the transaction. As alleged in the Complaint, in July of 2019, Plaintiff became aware that David Bronson, one of the limited partners of Bronson, objected to the Purchase Agreement, claiming, inter alia, the lack of the general partner’s authority to sell the Property and had sought a judicial dissolution of Bronson. See Complaint § 13. Thereafter, David Bronson filed a lawsuit styled, David A. Bronson, individually and as Trustee of David A. Bronson Irrevocable Trust v. Bronson Family Limited Partnership, Linda A. Bronson, individually and as Trstee of the Qualified Terminable Interest and Generation Skipping Transfer Trust, and Michael A. Bronson, individually and as Trustee of the Michael A. Bronson Irrevocable Trust, Case No. 2019-CA-002232-OC, pending in the Circuit Court of the Ninth Judicial Circuit of Florida in and for Osceola County, Florida (the “Bronson Suit”). See Complaint § 15. Most recently, in the Bronson Lawsuit, the Court issued an Order compelling the Parties to arbitration and staying the case pending the final arbitration award. See Agreed Order on the Joint Stipulation Regarding Arbitration and Mediation attached hereto as Exhibit “C”. In addition to the Bronson Lawsuit, Sharon B. Abner, Esq., an attorney at Swann Hadley Stump Dietrich (“Swann”), that was advising First American Title Company (the “Title Company”) regarding her examination of title to the Property in conjunction with Swann’s involvement in the purchase and sale the Property to provide Elevation a Title Commitment for the purchase of the Property, in order to fully inform the Title Company of any condition that may ultimately have an effect on the issuance ofa clean title policy, advised the Title Company, after various conference calls with the Title Company and Bronson’s attorney, that it was determined that Bronson was not able, or was unwilling to provide sufficient indemnifications or consents that would be required to eliminate issues concerning the Bronson Lawsuit. See Affidavit of Sharon B. Abner, attached hereto as Exhibit “D”. Therefore, the Title Company elected not to take the risk of insuring the Property due to the pending Bronson Lawsuit. /d. She further advised that the Bronson Lawsuit brought up concerns for Elevation’s disclosure obligations to future investors and lenders. /d. Further, David Bronson’s counsel made clear that David Bronson was not in agreement with Elevation proceeding with the Agreement and threatened to sue Elevation if the Agreement proceeded. Complaint § 18. Further, the Title Company, which issued the ALTA Title Commitment for the transaction, Commitment No. 2037-4341932 (the “Title Commitment”), had included in the Title Commitment specific requirements to confirm the authority of Bronson to execute the deed or otherwise transfer title to the property. See Complaint § 11 and 13. Additionally, during Elevation’s negotiations with Osceola County for the approval of their development plan, the School Board for Osceola County determined that they were entitled to an allocation of the Property for a school site, referencing Special Condition #10 of the Bronson Bay PD07-00057, which related to a separate project across Pleasant Hill Road owned by Bronson. See Complaint § 27-28. Although the Board of County Commissioners for Osceola County approved Elevation’s development plan, the School Board reserved its rights at the hearing to require a dedication of the school site. See Complaint { 37. The final determination of the school site would be made part of the Site Development Plan approval process and was not resolved by the closing date. See Complaint § 38. The School Board allocation and Bronson Suit, which were never resolved, create marketability of title issue, affecting Elevation’s future rights and ability to sell the Property, and further, other insurers could refuse to insure title without including an exception for the Bronson Suit. The Bronson Suit is also a breach of the representations and warranties made by Bronson under the Purchase Agreement. The basis for Elevation’s claim is that Bronson could not convey marketable title as required by the Purchase Agreement. Until Bronson performs its obligations under the Purchase Agreement, Elevation is not required to close and may seek specific performance by Bronson to fulfill its obligations set forth in the Purchase Agreement. Notably, pursuant to section 8(h) of the Purchase Agreement the Parties were required to execute and deliver a “Memorandum of Agreement,” the purpose of which was to create a recordable document to “provide public notice of the effect of the Agreement to any and all properties referred to therein.” Further, section 27 of the Purchase Agreement, entitled “Recording”, states, “Seller and Buyer agree that a Memorandum of this Agreement (“Memorandum of Agreement”), in the form attached as Exhibit “B” attached hereto and made a part hereof, shall be recorded in the public records of Osceola County, Florida.” See Purchase Agreement. Thus, the Parties agreed to execute and record the Memorandum of the Purchase Agreement. Bronson, however, failed to execute the Memorandum of Agreement as required by the Purchase Agreement. B. MEMORANDUM OF LAW, APPLICABLE LAW AND ARGUMENT 1 The Lis Pendens is proper. Florida Statute Section 48.23 provides that (3) When the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 or when the action no longer affects the subject property, the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions. Fla. Stat. Ann. § 48.23 (West). While Elevation’s claims for specific performance of the Purchase Agreement for the sale of the Property are not directly founded on a recorded instrument, Elevation’s complaint shows a fair nexus to the Property and this is the standard that must be met to maintain the lis pendens. This standard to maintain a lis pendens was articulated by the Florida Supreme Court in Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993). There, the Court stated as follows: unlike a typical injunction, a lis pendens exists as much to warn third parties as to protect the plaintiff; and the procedural requirements associated with lis pendens should advance both of these important purposes. Thus, we believe that the lis pendens cannot be dissolved if, in the evidentiary hearing on request for discharge, the proponent can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. To this end, the trial court need not determine whether there is any likelihood the property will be alienated or subjected to intervening liens during the pendency of the cause. The relevant question is whether alienation of the property or the imposition of intervening liens, if either actually occurred, conceivably could disserve the purposes for which lis pendens exists. Where the answer is yes, fair nexus must be found. Based on the policy outlined above, we do not agree that any greater proof is required of the proponent. We agree with the observation in Sparks v. Charles Wayne Grp.J, 568 So.2d 512, 517 (Fla. 5th DCA 1990), that the statutory reference to injunctions exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond where needed to protect the former from irreparable harm. The bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties. Chiusolo v. Kennedy, 614 So. 2d 491, 492-93 (Fla. 1993) (emphasis added). Accordingly, to determine whether there is a nexus between the property and the lawsuit, the court should not require a duly recorded instrument as a bright-line test. Aryeh Trading v. Trimfast Grp., Inc., 778 So. 2d 336, 337 (Fla. 2d DCA 2000). Rather, the court should review the complaint, the contract, and any other relevant evidence to determine if there is a fair nexus between the property and the dispute. Id.; see Avalon Assocs. of Delaware Ltd. vy. Avalon Park Assocs., Inc., 760 So. 2d 1132, 1135 (Fla. Sth DCA 2000) (finding a fair nexus based on contract even though there was no duly recorded instrument). A “fair nexus” between the plaintiffs claim and the property subject to a lis pendens is established by way of a “good faith, viable claim,” if the proponent of the lis pendens makes “a minimal showing that there is at least some basis for the underlying claim [a]nd ... show[s] that he or she has a good faith basis to allege facts supporting a claim and that the facts alleged would at least state a viable claim.” Regents Park Investments, LLC v. Bankers Lending Servs., Inc., 197 So. 3d 617, 621 (Fla. 34 DCA 2016); see also LB Judgment Holdings, LLC v. Boschetti, 271 So. 3d 115, 119 (Fla. 3d DCA 2019). 2. There is a fair nexus between the Lis Pendens and the Property and the Lis Pendens warns all persons that the property is in litigation, precisely the purpose of a lis pendens. Literally defined, the term “lis pendens” means a pending action.! A notice of lis pendens is a notice filed on the public records to warn all persons that the title to certain property is in litigation.” It is designed to preserve the status of the property involved in litigation. Section 48.23, Fla. Stat. requires that a notice of lis pendens be recorded in the office of the clerk of the circuit court of the county where the property is located before the doctrine of lis pendens comes into play.> The doctrine holds that the notice bars all interests and liens unrecorded at the time the notice is filed unless the holder of such unrecorded interest intervenes in the proceedings within twenty days of filing. The lis pendens statute serves to protect the plaintiff, but it also serves a notice function, by giving future purchasers or those who may wish to encumber the property fair warning that a suit has been filed that could affect title in the property.> The defendant is protected by reducing the chances that a “bona fide purchaser” will somehow extinguish any equitable claim the plaintiff may have in the property involved in the litigation.° The lis pendens is notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would necessarily put others on 1 See BLACK'S LAW DICTIONARY 932 (6th ed. 1990); Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc., 675 So. 24 915, 917 (Fla. 1996) (“While the term ‘lis pendens’ literally implies a pending suit, it is defined as the jurisdiction, power, or control which courts acquire over property involved in a pending suit.”). 2 Under the common law, the filing of litigation affecting property operated as a lis pendens, which has been modified by statute, §48.23, Fla. Stat. See DePass v. Chitty, 105 So. 148, 149 (Fla. 1925). 3 § 48.23, Fla. Stat. * § 48.23(1)(b), Fla. Stat. The filing of the notice does not create any property rights or give the litigant any superior right to the property. Thus, upon discharge of the lis pendens, the status of the property is unaffected. See National Bank of Sarasota v. Dugger, 335 So. 2d 859, 861 (Fla. 2d DCA 1976). * Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993); Procacci v. Zacco, 402 So. 2d 425, 427 (Fla. 4th DCA 1981). 6 Medical Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 656 So. 2d 1300 (Fla. 34 DCA 1995) inquiry.” In Chiusolo v. Kennedy, 614 So. 2d 491 (Fla. 1993) the Florida Supreme Court held that the proponent of the lis pendens, which is not founded on a recorded instrument or lien, has the burden of showing a fair nexus between the property and the lawsuit. The court explained: that the lis pendens cannot be dissolved if, in the evidentiary hearing on request for discharge, the proponent can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. To this end, the trial court need not determine whether there is any likelihood the property will be alienated or subjected to intervening liens during the pendency of the cause. The relevant question i whether alienation of the property or the imposition of intervening liens, if either actually occurred, conceivably could disserve the purposes for which lis pendens exists. Where the answer is yes, fair nexus must _be found. Id. at 493; (emphasis added). In determining whether there is a nexus between the property and the lawsuit a court should not look solely to whether there is a duly recorded instrument. /d. Instead, the court should review the complaint, the contract, and any other relevant evidence to determine if there is a fair nexus between the property and the dispute. * The burden of proof is on the Proponent of the Lis Pendens to establish that. In the instant case, a review of the Complaint as well as the contract attached demonstrate, there is a fair nexus between the Property on which the Lis Pendens is filed and the dispute between 7 See Procacci v. Zacco, 402 So. 2d at 427 (holding that the filing of a notice of lis pendens is encompassed within the judicial proceedings privilege because it has no separate existence apart from the litigation of which it gives notice. Thus, a claim for slander of title or for tortious interference with a contractual relationship could not be predicated on the filing of such a notice.). 8 Aryeh Trading v. Trimfast Group, Inc., 718 So. 2d 336, 337 (Fla. 2d DCA 2000) (reversing the trial court for dissolving a lis pendens it determined was not founded on a recorded instrument without analyzing whether there was a fair nexus); see also Avalon Associates of Delaware Ltd. v. Avalon Park Associates Inc., 760 So. 2d 1132 (Fla. 5th DCA 2000) (finding a fair nexus despite the fact that there was no duly recorded instrument in a case based on a contract). 10 the parties. Indeed, the relevant question for the court here on Bronson’s Motion is whether Bronson’s alienation of the property or the imposition of some intervening liens, if either actually occurred, “conceivably” could disserve the purposes for which the Lis Pendens exists. The fact is, Elevation — who entered into a purchase contract for the Property must be protected by reducing the chances that a “bona fide purchaser” will somehow extinguish its equitable specific performance claim Elevation may have in the Property involved in the litigation, in the absence of the Lis Pendens. Importantly, the Court here need not determine whether there is any likelihood the property will actually be alienated or subjected to intervening liens by Bronson or anyone else during the pendency of the cause. Rather, the Court need simply determine whether it is conceivable that the property could be alienated and whether Elevation has a good faith viable claim for specific performance, as alleged in its claim set forth in the Complaint.” If there is and they do, then there is a fair nexus and the Lis Pendens is proper. To establish a good faith viable claim for specific performance, the proponent of the lis pendens is not required to prove a substantial likelihood of success on the merits, but rather need only show that “it could establish all the necessary elements of that claim at the hearing on the motion for discharge.” See Regents Park Investments, LLC at 621 citing Chiusolo. “In order to invoke the remedy of specific performance...the plaintiff must prove that ‘as a condition precedent to specific performance it either paid the contract sum; tendered it; was ready willing and able to do so; or was excused from so doing.’” /d. Elevation can meet its burden simply through showing that there was in fact a valid binding contract and that Elevation had an excuse not to close. Here, Elevation holds a valid purchase contract and was excused from closing due to Bronson’s inability to provide marketable title and maintain its representations and warranties ° Bergmann y. Slater, 922 So.2d 1110 (Fla. 4th 2006). 11 under the Purchase Agreement. Even a cursory review of Elevation’s claim shows that they entered a written contract to purchase real property from Bronson. Bronson cannot maintain its representations and warranties made under the Purchase Agreement and was not able to deliver marketable title to the property as required under the Purchase Agreement due to the pending claim by David Bronson attacking Bronson’s legal authority to convey the Property to Elevation. The Bronson Lawsuit puts Elevation at risk of buying into a lawsuit. The Bronson Lawsuit objects to the sale of the Subject property and Challenges Bronson’s authority to enter into the Purchase Agreement. If successful, the Bronson Lawsuit can have the effect of nullifying the Purchase Agreement. Such a result is an extreme risk to Elevation that Bronson expressly warranted against and must be resolved. To resolve the cloud on title caused by the Bronson Lawsuit, Bronson can move forward with arbitration as required by the court. Due to the Bronson Lawsuit the Parties did not close on the deal and Bronson is seeking to cancel the Agreement; hence, Elevation brought their specific performance claim and filed the Lis Pendens asking the Court to intervene and require that Bronson specifically perform the terms it agreed to, i.e. provide marketable title to the Property and close on the deal. This Lis Pendens — nothing more and nothing less -- put the world on notice regarding this litigation, the precise purpose of a lis pendens, where Bronson is trying to back out of their obligations under a valid contract so that they could “conceivably” sell to others, and where Elevation is asking for specific performance of the purchase contract they hold. Again, the Court need not decide on the issue of which party is in default at this point as this is an issue of fact, but rather whether there is a good faith, viable claim. There is a direct connection between the claim over the Property raised in this litigation and the Property on which the Lis Pendens is filed. On the facts here, there is a fair nexus between 12 the Lis Pendens and the real property at issue in the litigation and the Lis Pendens is proper. 3. A bond is not required and is not necessary here where the developer, Bronson, will not suffer any damages a result of Elevation’s filing of the Lis Pendens and Bronson failed to execute the Memorandum of Agreement which was intended by the Parties to be a recordable document for public notice of the Agreement. A lis pendens bond is not mandatory. A bond may be appropriate when the property-holder defendant can show that damages will likely result to that defendant in the event the notice of lis pendens is unjustified. Med. Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 675 So. 24 915, 916 (Fla. 1996). The reference to injunctions in Section 48.23(3) of the lis pendens statute “exists merely to permit property holders to ask in an appropriate case that the plaintiff post a bond where needed to protect the former from irreparable harm.” Chiusolo, 614 So. 2d at 493. “The bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties.” /d. The trial court, however, may also consider the likelihood of other damages which do not meet the standard of irreparable harm. Jd. Requiring a bond is within the court’s discretion. Med. Facilities Dev., Inc., 675 So. 2d at 916. The court’s discretion in determining the amount of a lis pendens bond is not unfettered. The amount of the bond should bear a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified. S & T Builders v. Globe Properties, Inc., 944 So. 2d 302, 304 (Fla. 2006); Mitchell v. Metro. at Lake Eola, LLC, 947 So. 2d 1263, 1264 (Fla. Sth DCA 2007). The burden is on Bronson to demonstrate by evidence the amount of potential damage it might suffer due to the lis pendens. /d. Although potential damages are specific to each case, generally, the appropriate measure of damages is “the difference between the fair market value at the time of filing of the /is pendens and the fair market value at the time of its termination, plus any consequential damages, including the award of operating expenses if the property declined in 13 value, prejudgment interest from the date of termination of the /is pendens, and attorney’s fees.” Santa Catalina Townhomes, Inc. v. Mirza, 925 So. 2d 1147, 1147 (Fla. 4th DCA 2006); Mitchell, 947 So. 2d at 1264; Haisfield v. ACP Florida Holdings, Inc., 629 So.2d 963 (Fla. 4th DCA 1993). “In order to sustain a claim for consequential damages arising out of wrongful lis pendens, a wronged seller must show a diligent yet unsuccessful attempt to resell the property after the buyer breached the agreement.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So. 3d 905, 910 (Fla. 4th DCA 2010)(finding the vendor did not suffer damages attributable to the lis pendens). Section 48.23, Florida Statutes creates two types of lis pendens. The first exists where the action underlying the lis pendens is “founded” upon a duly recorded instrument or a mechanic's lien. A plaintiff does not need to post a bond in connection with this type of lis pendens.'° The second type of lis pendens envisions an underlying action not founded on a duly recorded instrument or mechanic's lien.'' With this second type of lis pendens, the statute authorizes the trial court to “control and discharge the notice of lis pendens as the court may grant and dissolve 912 injunctions. Here, a bond is not necessary. First, a bond should not be required here as the Parties agreed to record a Memorandum of Agreement in the public records of Osceola County, Florida, which was intended to provide public notice of the effect of the Agreement to the Property. But for 10 See Florida Peach Corp. of Am., Int'l Div., S.A. y. Lurie, 411 So. 2d 339, 340 (Fla. Sth DCA 1982); Chapman v. L & N Grove, Inc., 244 So. 2d 154, 157 (Fla. 2d DCA 1971), overruled on other grounds by Am. Legion Cmty. Club v. Diamond, 561 So, 2d 268 (Fla. 1990) 11 § 48,23(3), Fla. Stat. ? Finkelstein v. Finkelstein, 603 So. 2d 715, 716 (Fla. 4th DCA 1992), stated that two consequences attach to the filing of a notice of lis pendens where the relief sought is neither founded upon a mechanic's lien nor a recorded instrument: (1) the notice expires after one year if not extended by order of the court and (2) control and discharge of the notice as in the case of granting and dissolving injunctions is vested in the trial court. 14 Bronson’s refusal to sign the Memorandum of Agreement as required by the Agreement, there would be no issue as to whether or not a bond should be posted in connection with the Lis Pendens. In this instance, the Court should find that Bronson waived any bond requirement by their agreement to record the Memorandum of Agreement, or in the alternative, require Bronson to perform according to the Agreement and execute the Memorandum of Agreement to be recorded in the public records for Osceola County, Florida. Second, concerning the damages issue, in Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc., 675 So. 2d 915, 917 (Fla. 1996), the Court held that, in situations governed by § 48.23(3), the trial court has the discretion to determine whether to require the lis pendens proponent to post a bond when the property-holder defendant can show that damages will likely result to that defendant in the event that the notice of lis pendens is unjustified. Indeed, there are many instances where trial courts do not require a bond. For example, in Santa Catalina Townhomes, Inc. v. Mirza, much like in the present case, where a property purchaser brought an action against a developer for specific performance of a contract for construction and sale of a property, and the purchaser filed a notice of lis pendens, the Fourth DCA did not require the purchaser to post a bond absent a showing by the developer as to the likely damages it would suffer and the amount thereof. See Santa Catalina Townhomes, Inc. v. Mirza, 2006 WL 1083433, 1 (Fla. 4th DCA 2006).'3 In the instant case, Bronson is seeking to ‘rescind’ the contract for the purchase of real property. Nowhere, however, does Bronson disavow that it entered the Purchase Agreement or 33 The Santa Catalina Court ruled that the proper method of measuring damages for a wrongful lis pendens is limited to “the difference between the fair market value at the time of filing of the lis pendens and the fair market value at the time of its termination.” See Id.; Haisfield v. ACP Florida Holdings, Inc. 629 So.2d 963, 966 (Fla. 4th DCA 1993). 15 that the Purchase Agreement itself is binding; nowhere does it demonstrate that it will suffer damages if it is forced to close on the Purchase Agreement it entered. Instead, Bronson argues that they will be harmed by their inability to freely sell or otherwise encumber the Property. The fact of the matter, however, is that this court has the discretion to determine that no bond is required, and that is precisely what the court should do. The facts here show that Bronson refused to sign the Memorandum of Agreement which was intended to be the recordable document putting the public on notice of the effect of the Purchase Agreement on the Property, and Bronson did not, and cannot, demonstrate any damages. Further, the facts show that Elevation is excused from being ready, willing and able to close due to Bronson’s default on the Purchase Agreement and the Lis Pendens serves a valid purpose of permitting the Elevation to seek their specific performance claim against Bronson who is opportunistically reneging on the deal with the knowledge that the property can be sold today at a much greater price. C. CONCLUSION Based upon the foregoing, as well as the evidence and the arguments to be made at the hearing, the Court should deny Defendant, Bronson’s Motion to Dissolve Lis Pendens and/or Require the Posting of a Bond, and should the Court require the posting of a bond that a further evidentiary hearing be held to determine the amount and/or appropriateness of same, and any such further relief the Court deems just and equitable. Dated: December 10, 2021 Respectfully submitted, /s/ Edmund 0. Loos IIT EDMUND O. LOOS III, ESQUIRE Florida Bar No. 899161 Email 1: Edmund.Loos@gmlaw.com Email 2: tami.austin@gmlaw.com CHAD J. TAMAROFF, ESQUIRE Florida Bar No: 0163368 16 Email 1: Chad. Tamaroff@gmlaw.com Email 2: Agatha.McTier@gmlaw.com PATRICK HENNESSEY, ESQUIRE Florida Bar No.: 0106964 Email 1: Ellis. Marder@gmlaw.com Email 2: Eric.Cruz@gmlaw.com GREENSPOON MARDER LLP 201 East Pine Street, Suite 500 Orlando, FL 32801 Telephone: 407-425-6559 Facsimile: 407-422-6583 Counsel for Plaintiff; ELEVATION DEVELOPMENT II, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 10, 2021, I filed the foregoing with the Clerk of the Court via the Florida ePortal filing system, which will provide an electronic notification to: Attorneys for Defendant Todd K. Norman, Esq., Benjamin Burleson, Esq., Nelson Mullins Riley & Scarborough LLP, 390 North Orange Ave., Suite 1400, Orlando, FL 33802 todd.norman@nelsonmullins.com, Benjamin.burleson@nelsonmullins.com; shawana.watt@nelsonmullins.com; Katherine.reynolds@nelsonmullins.com. /s/ Edmund 0. Loos IIT EDMUND O. LOOS III, ESQUIRE 17 EXHIBIT A EXHIBIT "A" PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date (as defined in Section 23 below) by and between BRONSON FAMILY LIMITED PARTNERSHIP, a Nevada limited partnership (hereinafter called “Seller”), and ELEVATION DEVELOPMENT II, LLC a Florida limited liability company (hereinafter called “Buyer”), WLITNESSETH: FOR AND IN CONSIDERATION of the Earnest Money {as hereinafier defined), the covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound. hereby agree as follows: 1 Purchase and Sale. Seller agrees to sell, and Buyer agrees to purchase that certain real property located on Pleasant Hill Rd, in Kissimmee, Osceola County, Florida, Tax Parcel Identification Number 07-26-29-0000-0020-0000 and 07-26-29-4470-0001-0095, being mote particularly described on Exhibit A attached hereto and made a part hereof, together with all of Seller's right, title and interest, if'any, in and to: (i) prepaid impact, transportation, utility, capacity reservation fees and any other credits or deposits pertaining to the land: (ii) all easements, rights of way, strips and gores of land, tenements, hereditaments, privileges, licenses and appurtenances, reversions and remainders in any way belonging, remaining or appertaining thereto; and (iii) together with all improvements, fixtures, personal property, trees, timber, oil, gas and minerals located thereunder or thereon (collectively referred to as the “Property”). 2 Purchase Price, Method of Payment. The. purchase price for the Property (hereinafter called the “Purchase Price”) shall be EIGHT MILLION, THREE HUNDRED THOUSAND and NO/100 DOLLARS ($8,300,000.00). The Purchase Price shall be paid by Buyer to Seller on the Closing Date (as hereinafter defined) after crediting the Deposit, and subject to the prorations and adjustments hercinafler described, by wire transfer of immediately available funds. 3 Earnest Money. Within three (3) business days after the Effective Date, Buyer shall deliver to Integrity First Title, LLC (hereinafter referred to as “Escrow Agent”), a good faith earnest money deposit of TWENTY-FIVE THOUSAND and NO/100 DOLLARS ($25,000.00) (said deposit, together with all interest earned thereon, being hereinafter collectively called the “Earnest Money”). An Additional Deposit (“Additional Deposit") of SEVENTY-FIVE THOUSAND and NO/100 Dollars ($75,000.00) will be due within three (3) business days after the end of the Feasibility Period as set forth in Section 7 below. At the end of the Feasibility Period, the Earmest Money deposit together with the Additional Deposit, shall be referred to as (the “Deposit™), which shall be held and disbursed by Escrow Agent in accordance with the terms and conditions of this Agreement. 4 Duties of Escrow Agent. Escrow Agent is authorized and agrees by acceptance of the Deposit to hold and deliver same in accordance with the terms of this Agreement. in the event of doubt as to its liabilities or duties, Escraw Agent may, in its sole discretion and any other BLivrse 709 EMSA AGT AMS provision of this Agreement to the contrary notwithstanding, (a) continue to hold the Deposit until the parties mutually agree to the disbursement thereof or until a judgment of a court of competent jurisdiction shall determine the rights of the parties to the Deposit, or (b) deliver the Deposit to the Clerk of the Circuit Court for Osceola County, Florida, and, upon notifying all parties concerned of such action, all liability on the part of Escrow Agent shall terminate except to account for any monies previously delivered out of escrow. In the event of any suit wherein Escrow Agent is made a party by virtue of acting as escrow agent, or in the event of any suit initiated by or against Escrow Agent wherein Escrow Agent interpleads the Deposit, Escrow Agent shall be entitled to recover its reasonable atlomneys' and paralegals’ fee and costs incurred before, during and after trial and upon all appellate levels, said fees and costs to be charged and assessed as court costs in favor of Escrow Agent and immediately paid by the non-prevailing party. The parties agree that Escrow Agent shall not be liable to anyone for misdelivery to Buyer or Seller of monies out of escrow unless such misdelivery shall be due to willful or reckless breach of this Agreement or gross negligence on the part of Escrow Agent. Buyer and Seller each agrees to hold Escrow Agent harmless from any and all loss, cost or expense, including reasonable attorneys' and paralegals’ fees, resulting from Escrow Agent’s compliance with its obligations hereunder. Escrow Agent shall not be liable for any loss resulting from any default, error, action or omission of Buyer or Seller, loss or impairment of funds in the course of collection or while on deposit resulting from failure or suspension of the depository institution, or from Escrow Agent's compliance with any legal process, order or judgment of any court, whether or not subsequently vacated or modified. Buyer and Seller acknowledge that Escrow Agent shall not be liable for any loss arising from the fact that the common escrow account maintained by Escrow Agent for this and other transactions may cause the aggregate amount of any individual depositor's account to exceed applicable deposit insurance coverage. 5. Title Examination and Objections. a. Seller shall convey the Property to Buyer, {ree and clear of all liens and encumbrances, subject only to (i) the lien of taxes not yet due and payable, (ii) all matters that would be revealed by a current and accurate survey and inspection of the property and which are waived or to which timely objection is not made by Buyer pursuant to this Section 4, (iii) all matters of record which are waived or to which timely objection is not made by Buyer pursuant to this Section 4, and (iv) any other matters of title to which Buyer shall expressly consent {each hereinafter called a “Permitted Exception” and collectively, the “Permitted Exceptions”). b Within forty-five (45) days of the Effective Date, Buyer, at Buyer’s sole cost and expense, shall obtain a title insurance commitment (the “Title Commitment”) committing to insure title in Buyer in the amount of the Purchase Price, together with copies of all matters of record to which the Property is subject and which are shown as exceptions to title in the Title Commitment. The Title Commitment shall be issued by First American Title Insurance Company (the “Title Company”). Buyer shall have twenty (20) days after its receipt of the Title Commitment within which to examine title to the Property and provide to Seller written notice of any matters affecting title that are unacceptable to Buyer (“Title Objection(s)”). If Buyer fails to give any notice to Seller by such date, Buyer shall be deemed to have waived such right to object 2 saa y7s8.-A3I2 LEBSTSO AGT ALG to any title exceptions or defects, and all matters shown by the Title Commitment shall be deemed to be Permitted Exceptions. €. Seller shall have thirty (30) days from receipt of Buyer’s Title Objections in which to review said objections, and advise Buyer on whether Seller will attempt to cure any objections specified in Buyer's notice. If Seller fails to deliver said notice within said thirty (30) day period, or if Seller notifies Buyer that Seller does not intend to attempt to cure any or all of Buyer’s Title Objections, then Buyer shall have the right, at Buyer's option, to terminate this Agreement by giving written notice to Seller within ten (10) days after the expiration of such thirty (30) day period, in which event the Eamest Money shall be refunded to Buyer promptly upon request, all rights and obligations of the parties hereunder shall expire (except for those which expressly survive any such termination) (the “Surviving Obligations”), and this Agreement shal] otherwise become null and void. If Buyer fails to terminate this Agreement within the time limit specified above, Buyer shall be deemed to have waived any objection specified in Buyer's notice of Title Objections as to which Seller has given Buyer such notice, and such Title Objection(s) shall thereafter constitute a Permitted Exception under this Agreement d In the event Seller clects to attempt to cure any Title Objection(s), Seller shall have until the Closing Date to satisfy any such objections and, if Seller fails to cure or satisfy any such objections which it has expressly agreed to satisfy, then, at the option of Buyer, Buyer may: (i) terminate this Agreement, in which event the Deposit shall be refunded to Buyer promptly upon request, all rights and obligations of the parties hereunder shall expire and this Agreement shall become null and void, except with respect to the Surviving Obligations; or, (ii) waive such satisfaction and performance and elect to close without any reduction in the Purchase Price, and all objections so waived shall thereafter constitute Permitted Exceptions under this Agreement. e. Notwithstanding anything contained herein to the contrary, Seller shal] have the right, but not the obligation, to cure or correct any title objections, excepting only mortgages or other monetary liens voluntarily incurred by Seller (“Monetary Liens”). Seller shall be required to satisfy any and all Monetary Liens on or before Closing, failing which, Buyer may apply a portion of the Purchase Price against any Monetary Liens at Closing, in an amount necessary to satisfy such Monetary Liens (including all costs of satisfaction of record). £ Within fifteen (15) days of Closing, Buyer shall update the Title Commitment and provide either an endorsement to the Title Commitment or a revised Title Commitment, Buyer shall have five (5) days from receipt of said update to review same and provide title objections that Buyer may have as to matters first appearing of record subsequent to Buyer's initial objection, or to matters that were prior to the time of the effective date of the Title Commitment, but did not appear on the Title Commitment. The times and rights of Seller and Buyer after Buyer’s subsequent objections shall correspond with the original title responses. 8 Seller hereby covenants that it shall not voluntarily transfer, sell, assign, encumber, lease, hypothecate or otherwise dispose of any or all of its right, title and interest in and to the Property nor cons