Alan L. Carner v. Nicole J. Carner

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ALAN LEBOU CARNER,
Appellant,

v.

SARA J. SINGER and THE LAW OFFICES OF SARA J. SINGER, P.A.,
Appellees.

No. 4D2025-0467

[June 10, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
062023CA019250AXXXCE.

Ralph Oliver Anderson of Ralph O. Anderson, P.A., Fort Lauderdale, for
appellant.

Scott A. Cole and Francesca M. Stein of Cole, Scott & Kissane, P.A.,
Miami, for appellees.

LOTT, J.

Former Wife filed a motion to enforce payment of child support and
alimony arrearages against Former Husband. Former Wife also filed a lis
pendens on Former Husband’s home based on the pending enforcement
proceeding. Former Husband filed a civil action against Former Wife’s
attorneys for damages stemming from the lis pendens. The trial court
dismissed Former Husband’s action. Former Husband now appeals.

The question presented in this appeal is whether Former Wife was
allowed to file a lis pendens on Former Husband’s home based on the
pending enforcement proceeding.

The answer is no.

Taking the allegations in the operative complaint as true—as the trial
court was required to do—the lis pendens was improper. Thus, we hold
the trial court erred in dismissing Former Husband’s second amended
complaint.
I. BACKGROUND 1

A. The Family Enforcement Proceedings

Alan Carner (“Former Husband”) and Nicole Carner (“Former Wife”)
married on February 2, 2008. On February 25, 2013, Former Husband
filed a petition for dissolution of marriage.

The parties entered into a mediated marital settlement agreement, and
the dissolution court entered a final judgment on April 29, 2015,
incorporating that agreement.

After Former Husband failed to make child-support and alimony
payments, Former Wife, on December 15, 2021, filed a motion for
contempt against Former Husband, seeking enforcement of the settlement
agreement.

The motion requested that the court “enforce the provisions of the Final
Judgment,” find Former Husband “in willful contempt of the Marital
Settlement Agreement,” order Former Husband to “immediately pay” the
child support and alimony owed, and jail Former Husband if he failed to
pay a purge amount.

B. The Lis Pendens

Former Wife was not Former Husband’s only dissatisfied creditor.

On March 15, 2021, Former Husband’s mortgage servicer initiated
foreclosure proceedings on Former Husband’s residence. As part of
discussions with the servicer, on August 11, 2022, Former Husband listed
the residence for sale at $2,497,000 and sought refinance offers to satisfy
the mortgage and end the foreclosure proceeding.

Four days later, on August 15, 2022, Former Wife filed and recorded a
notice of lis pendens against the residence. The lis pendens stated:

1 “A motion to dismiss tests the legal sufficiency of the complaint and does not

determine factual issues. All allegations of the complaint must be taken as true
and all reasonable inferences drawn therefrom must be construed in favor of the
non-moving party.” Haddad v. Lyft Fla., Inc., 2026 WL 1309854, at *2 (Fla. 4th
DCA May 13, 2026) (citations and quotations omitted).

2
YOU ARE HEREBY NOTIFIED of the institution of this action
and of the pendency of a dissolution of marriage action
bearing the case number as shown in the above caption, filed
in the Circuit Court of the 17th Judicial Circuit, in and for
Broward County, Florida, by the Former Wife, NICOLE
CARNER, against the Former Husband, ALAN CARNER. The
Former Wife is seeking certain legal and equitable relief
against the Former Husband related to the subject marital
real property described below:

The lis pendens then included the property’s legal description. Former
Wife then noticed the listing agent for the property of the lis pendens.

On February 1, 2023, Former Husband filed a motion to dissolve lis
pendens. Before any hearing on the motion, Former Wife filed a release of
lis pendens. The remainder of those dissolution proceedings are not the
subject of this appeal.

Former Husband’s residence sold for $1,650,000 on January 10,
2024—$847,000 less than the listing price prior to Former Wife filing the
lis pendens.

C. Former Husband’s Civil Lawsuit

On October 4, 2023, Former Husband filed a civil tort action against
Former Wife and her attorneys, Sara J. Singer and The Law Offices of Sara
J. Singer, P.A. (Former Wife’s attorneys, collectively “Appellees”), asserting
claims for slander of title, abuse of process, malicious prosecution, and
civil conspiracy.

The substance of the claims was that the lis pendens filed against his
property was wrongful and that the wrongfully filed lis pendens caused
damages when Former Husband eventually sold his home at a
substantially lower price than the price at which the home was originally
listed.

D. Proceedings Below

Appellees moved to dismiss the complaint. In substance, Appellees
argued: (1) section 61.11, Florida Statutes (2022), authorized the filing of
the notice of lis pendens; and (2) Appellees enjoy the litigation privilege,
which precludes any liability under Florida law. The trial court granted
several of their motions to dismiss with leave to amend the complaint
before finally dismissing the complaint with prejudice.

3
This appeal ensued.

II. ANALYSIS 2

A. Lis Pendens Law

“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.” Med. Facilities Dev., Inc. v. Little Arch Creek
Properties, Inc., 675 So. 2d 915, 917 (Fla. 1996) (cleaned up).

“The purpose of a lis pendens as authorized by this statute is to notify
prospective purchasers and encumbrancers that any interest acquired by
them in the property in litigation is subject to the decree of the court. It is
simply a notice of pending litigation.” Procacci v. Zacco, 402 So. 2d 425,
427 (Fla. 4th DCA 1981) (quotations omitted). A lis pendens indicates to
prospective purchasers of property that they are “acquiring an interest in
property that is a subject of litigation [and] are bound by, or entitled to the
benefit of, a subsequent judgment.” U.S. Bancorp v. Taharra Assets 5545,
Inc., 378 So. 3d 630, 634 (Fla. 4th DCA 2024) (cleaned up). Thus, “[a] lis
pendens serves two main purposes: (1) to give notice to and thereby protect
any future purchasers or encumbrancers of the property; and (2) to protect
the plaintiff from intervening liens.” Townsend v. C.T. Box, 291 So. 3d
114, 117 (Fla. 4th DCA 2020) (quoting Jallali v. Knightsbridge Vill.
Homeowners Ass’n, Inc., 211 So. 3d 216, 218 (Fla. 4th DCA 2017)).

The lis pendens doctrine originates from the civil law, but took root in
common law, and first was adopted as part of this country’s law in
Chancellor Kent’s opinion in Murray v. Ballou, 1 Johns. Ch. 566, 1815 WL
1189 (N.Y. Ch. 1815). De Pass v. Chitty, 105 So. 148, 149 (Fla. 1925).
Under common law, the world was deemed to be constructively noticed
immediately upon commencement of suit, but from early on, many states
began materially modifying this principle by statute. Id. Florida, for
example, in 1920, enacted section 2853, Florida Statutes, which provided:

No suit at law or in equity shall operate as a lis pendens as to
any property involved therein until there shall have been filed
in the office of the clerk of the circuit court of the county where
the property is situated, and shall have been recorded by him

2 “The standard of review of an order granting a motion to dismiss is de novo.”

Haddad, 2026 WL 1309854, at *3 (citation omitted).

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in a book to be kept by him for the purpose, a notice of the
institution of such suit, containing the names of the parties,
the time of the institution of the suit, the name of the court in
which it is pending, a description of the property involved, and
a statement of the relief sought as to such property.

§ 2853, Rev. Gen. Fla. Stat. (1920); De Pass, 105 So. at 149.

Now, notices of lis pendens are statutorily authorized under section
48.23, Florida Statutes (2022). Specifically, section 48.23(1)(a) provides:

An action in any of the state or federal courts in this state
operates as a lis pendens on any real or personal property
involved therein or to be affected thereby only if a notice of lis
pendens is recorded in the official records of the county where
the property is located and such notice has not expired
pursuant to subsection (2) or been withdrawn or discharged.

§ 48.23(1)(a), Fla. Stat. (2022). Section 48.23(1)(b)1. provides:

An action that is filed for specific performance or that is not
based on a duly recorded instrument has no effect, except as
between the parties to the proceeding, on the title to, or on
any lien upon, the real or personal property unless a notice of
lis pendens has been recorded and has not expired or been
withdrawn or discharged.

§ 48.23(1)(b)1., Fla. Stat. (2022). And section 48.23(3) provides:

When the pending pleading does not show that the action is
founded on a duly recorded instrument or on a lien
claimed . . . 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.

§ 48.23(3), Fla. Stat. (2022).

A lis pendens is a serious matter to the subject property owner.
Unsurprisingly, an open lis pendens will generally prevent the property
holder from selling or mortgaging the property. Med. Facilities Dev., Inc.,
675 So. 2d at 917 (citation omitted). “A lis pendens places a cloud on the

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title that did not previously exist.” DeGuzman v. Balsini, 930 So. 2d 752,
754 (Fla. 5th DCA 2006).

It follows that a lis pendens cannot be filed in every litigation against a
property owner. Its use is appropriate only where the dispute is
sufficiently connected to the property at issue. Put differently, the lis
pendens must be based on a “fair nexus between the property and the
dispute.” Med. Facilities Dev., Inc., 675 So. 2d at 917 (citation omitted).
“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.” Chiusolo v. Kennedy, 614 So. 2d 491,
492 (Fla. 1993). “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.” Id.
“Where the answer is yes, fair nexus must be found.” Id. Further,
“establish[ing] a fair nexus requires a showing of a good faith, viable
claim.” Martell v. Dubner, 885 So. 2d 469, 471 (Fla. 4th DCA 2004)
(quotation omitted). 3

The Third District has stated this a bit more cleanly: “When a plaintiff
can be afforded complete relief on a claim without reference to the title to
the real property, a lis pendens cannot be maintained.” Blue Star Palms,
LLC v. LED Tr., LLC, 128 So. 3d 36, 39 (Fla. 3d DCA 2012) (citing Beefy
King Int’l Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir. 1972) (“Under the
Florida cases a lis pendens is proper only when the required relief might
specifically affect the property in question.”)).

A typical civil action seeks money damages. If the plaintiff obtains a
judgment, that judgment may eventually be reduced to a lien against the
judgment-debtor’s real property in proceedings under Chapter 56, Florida
Statutes. But the underlying civil lawsuit has no nexus to a particular
piece of the defendant’s property and does not purport to affect the title to
any such property.

Thus, courts have also repeatedly recognized that “[w]hen the primary
purpose of a lawsuit is to recover money damages and the action does not

3 This is as true for claims grounded in equitable liens as any other claim against

the property. See Delta Aggregate, LLC v. Hermes Hialeah Warehouse, LLC, 266
So. 3d 248, 249 (Fla. 4th DCA 2019) (“While a claim for an equitable lien can
support a lis pendens, it must be founded either upon a duly recorded instrument
or a fair nexus between the apparent legal or equitable ownership of the property
and the dispute embodied in the lawsuit.”).

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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. 2d DCA 2008) (quoting
DeGuzman, 930 So. 2d at 755). “A notice of lis pendens is properly filed
when a person seeks to enforce any lien upon designated real estate, but
a lien which may result after a judgment provides no basis for the filing of
a lis pendens notice.” DeGuzman, 930 So. 2d at 755. “A lis pendens is
not an appropriate instrument for use in promoting recoveries in actions
for money judgments.” Id.; see also Ness Racquet Club, LLC v. Renzi
Holdings, Inc., 959 So. 2d 758, 761 (Fla. 3d DCA 2007) (“It is well settled
that in the absence of a duly recorded instrument, where there is no direct
claim cognizable under the law against or upon the property burdened by
the lis pendens, no lis pendens may be asserted under any conditions
against the realty.” (cleaned up)); Trujillo v. Garcia, 402 So. 3d 422, 424
(Fla. 3d DCA 2024) (“The complaint does not allege that Trujillo has any
type of ownership in or lien on Garcia’s property. The litigation would not
affect the title in any manner. There was no nexus between the two. This
is simply a lawsuit for damages—indeed, damages to Trujillo’s property.
The notice of lis pendens was improper.”); Sunrise Point, Inc. v. Foss, 373
So. 2d 438, 439 (Fla. 3d DCA 1979) (“[T]he complaint sought only money
damages and relief in the nature of a . . . prejudgment attachment. It did
Not [sic] allege a direct claim cognizable under the law against or upon the
remaining property burdened by the lis pendens. Hence, . . . no lis
pendens may be asserted under any conditions against the realty involved
in this case.”).

A lis pendens proponent should be confident that they are in accord
with these principles before filing. A proponent files an improper lis
pendens at their peril and may subject themselves to a tort action for
damages caused by filing a wrongful lis pendens against a property owner.
For example, we have long recognized the tort of slander of title: the
“wrongful, intentional and malicious disparagement of vendibility of title
to real property.” Atkinson v. Fundaro, 400 So. 2d 1324, 1326 (Fla. 4th
DCA 1981) (recognizing such claim where lis pendens was wrongfully filed
against plaintiff’s property).

B. Former Wife Could Not File a Lis Pendens Based on the
Pendency of This Family Law Enforcement Proceeding

Appellees argue their lis pendens was proper. 4

4 The parties did not address, and so we do not decide, whether any of the four

counts in Former Husband’s second amended complaint validly state any claim
upon which relief can be granted. Instead, the parties more generally address

7
We disagree. It was not.

Appellees argue in particular that section 61.11(1), Florida Statutes,
means that Former Wife could potentially foreclose on the house if she
were to prevail in her enforcement proceeding. That section provides:

When either party is about to remove himself or herself or his
or her property out of the state, or fraudulently convey or
conceal it, the court may award a ne exeat or injunction
against the party or the property and make such orders as will
secure alimony or support to the party who should receive it.

§ 61.11(1), Fla. Stat. (2022).

But here, section 61.11, on its face, is inapplicable to the house. The
statute only operates “[w]hen either party is about to remove himself or
herself or his or her property out of the state, or fraudulently convey or
conceal it.” § 61.11(1), Fla. Stat. (2022).

“The writ of ne exeat is a writ in common use in equity. The authority
to issue the writ is primarily based upon the inherent jurisdiction of a
court of equity to prevent a person from leaving the jurisdiction until he
gives security for his appearance or performance of a decree.” State v.
Browne, 142 So. 247, 250 (Fla. 1932). It is “primarily a personal writ and
intended to enable the court to retain jurisdiction over the defendant.” Id.
“The manifest purpose of such writ, as its name indicated, is one of
restraint to maintain the presence of the defendant within the state, for
the purpose of securing the practical application of legal process.” Pan
Am. Sur. Co. v. Walterson, 44 So. 2d 94, 96 (Fla. 1950).

“[N]either the statute nor case law authorizes utilizing this writ
independently, as a substitute for a contempt, injunction, or other
enforcement order, where its purpose is not to prevent a party from fleeing
or removing assets but, rather, to force the party to post security, or
produce assets, that would be used to satisfy a judgment.” Siravo v.
Siravo, 670 So. 2d 983, 985 (Fla. 4th DCA 1996). The writ is generally
unavailable where the movant cannot show “why civil or criminal contempt
or other remedies are not more appropriate to secure those ends.” Id.;
accord Schorb v. Schorb, 547 So. 2d 985, 988–89 (Fla. 2d DCA 1989)

the two issues raised in Appellees’ motion below: whether the lis pendens was
proper, and whether the litigation privilege applies.

8
(“While the trial court has discretion to utilize the writ of ne exeat, it should
only be used when less onerous remedies will not suffice.”), disapproved
of on other grounds, Coleman v. Coleman, 629 So. 2d 103 (Fla. 1993).

Here, Appellees never plausibly suggested that Former Husband was
about to remove himself or the house out of the state, or that he was about
to fraudulently convey or conceal the house. Rather, Former Husband
was listing the house on the open market through a realtor—nothing
fraudulent or surreptitious. Cf. White v. White, 429 So. 2d 730, 732 (Fla.
1st DCA 1983) (holding “the trial court erred in ordering a lien placed on
husband’s property to secure periodic alimony payments in the absence of
evidence that husband intends to fraudulently convey or conceal assets”).

Even if Former Wife had concerns about what Former Husband might
do with the sale proceeds after closing, those concerns did not authorize a
pre-sale lis pendens clouding title to the house. By contrast, in Parnama
v. Parnama, 908 So. 2d 541, 542 (Fla. 4th DCA 2005), we approved the
use of a section 61.11 injunction to require the wife to deposit part of the
proceeds of a home sale into a trust account upon the sale’s completion,
where the wife had previously sold property without his knowledge. A lis
pendens was not an issue in that case, and ought not to have been an
issue—the requested injunction did not purport to affect the title of the
real property.

The bottom line is the house was property that could, one day, become
subject to foreclosure or other relief by means of Former Wife’s civil
proceeding against Former Husband. A property not specifically the
subject of an action, but that one day might be foreclosed on to satisfy a
future judgment, is a textbook example of what not to subject to a lis
pendens. The fact that the action is a family law enforcement proceeding
for alimony and child support bears little on the inquiry. 5

5 As Appellees argue, Former Husband may not be entitled to the homestead
protection in a support enforcement proceeding as he would be against other
creditors. See Anderson v. Anderson, 44 So. 2d 652, 655 (Fla. 1950) (homestead
exemption cannot “be construed to enable the husband to claim its benefit
against the very persons to whom he owes the obligation of support and
maintenance, . . . to construe the statute otherwise would, at least in part, defeat
its avowed object” (internal citation and quotation marks omitted)); Spector v.
Spector, 226 So. 3d 256, 259 (Fla. 4th DCA 2017) (“[B]ased on our controlling
case law, the homestead protection does not shield a former spouse when he or
she acts egregiously, reprehensibly, or fraudulently.”). But that doesn’t change
anything about the availability of a lis pendens here. The same would be true
whether the house were an investment property rather than a homestead.

9
Florida courts have repeatedly held as much in family cases.

In Brown v. Brown, 732 So. 2d 1169, 1171 (Fla. 1st DCA 1999), the
court rejected an attempt to place a lis pendens on a home on a motion to
enforce a settlement agreement and arrearages similar to the motion here.
The court noted that, “while the appellant failed to make the full equity
payment specified in the agreement, a lis pendens does not pertain upon
a payment which is merely related to but which does not affect the
alienability of the subject property.” Id. The court went on—“the motion
for enforcement and arrearages in the present case does not request relief
with regard to the property itself, asking instead for compliance with the
settlement agreement and an award of money damages. The notice of lis
pendens thus should have been discharged.” Id.

Likewise, in DeGuzman, the court held that “a lis pendens in this case
should not have been filed because there is no connection between [Former
Wife’s] litigation to enforce and require payment of child support and the
real property against which she filed the lis pendens.” 930 So. 2d at 754–
55. The court reasoned that “[s]he completely failed to show any grounds
to assert equitable or legal title to the property, nor any connection to it
other than as a potential source from which to recoup child support.” Id.
at 755. 6

The Third District recently reached a similar result in Golubtsova v.
Budaev, 418 So. 3d 329 (Fla. 3d DCA 2025). In a dispute between former
spouses involving rental property purchased during the marriage, the
former wife pleaded claims, including equitable lien and constructive trust,
against the former husband, and filed a notice of lis pendens. The court
looked to the substance of the complaint, concluding that it sought money
damages—past rents—not relief affecting title to the property, and found:
“Since this is simply a lawsuit for damages, there is no nexus ‘between the
apparent legal or equitable ownership of the property and the dispute
embodied in the lawsuit.’” Id. at 331 (citing Chiusolo, 614 So. 2d at 492).
The court noted that “the title of a count in a complaint is not controlling—
we must look to the substance of what is being sought,” and found that
“[a]t its core, the complaint does not concern apparent legal or equitable

6 Appellees argue that DeGuzman is distinguishable because it did not involve

section 61.11. But why should it have? As explained above, section 61.11 is an
extraordinary remedy rarely applied in routine enforcement proceedings. Section
61.11 is no more applicable here than it would have been in that closely
analogous fact pattern.

10
ownership of the property . . . [and] does not affect the title of the property.”
Golubtsova, 418 So. 3d at 331. Thus, the court held, “[t]he notice of lis
pendens filed in this lawsuit was improper.” Id. (citing Nu-Vision, LLC v.
Corp. Convenience, Inc., 965 So. 2d 232, 234 (Fla. 5th DCA 2007)
(“[E]stablishing a ‘fair nexus’ between a claim in litigation and the
property’s title requires a little more than simply pleading a theoretical
nexus.”)).

In sum, property that might eventually be subject to foreclosure to
satisfy a judgment, even in a family case, without more, cannot be properly
subjected to a lis pendens.

But that’s what happened here. Appellees filed a lis pendens on Former
Husband’s home as part of enforcement proceedings to recover arrearages.
Such property is not “involved” in the action, nor will it be “affected
thereby” as contemplated by section 48.23, and the property’s potential
availability for future execution does not create the required nexus
between the property and the litigation. § 48.23, Fla. Stat. (2022)
(requiring “any real or personal property [be] involved therein or to be
affected thereby” for an action to operate as a lis pendens) (emphasis
added).

Former Wife could have been “afforded complete relief” on her
enforcement action “without reference to the title to the real property,” and
thus “a lis pendens cannot be maintained.” Blue Star Palms, 128 So. 3d
at 39.

Taking the allegations in the second amended complaint in the light
most favorable to Former Husband, the lis pendens filed by Appellees was
improper. Accordingly, the trial court erred in granting the motion to
dismiss on the ground that the lis pendens was proper.

C. The Litigation Privilege Does Not Provide Former Wife’s
Attorneys Immunity for the Filing of the Improper Lis
Pendens

Appellees alternatively argue that the litigation privilege bars Former
Husband’s claims because the lis pendens was filed in connection with
post-dissolution litigation. We again disagree.

Florida’s litigation privilege affords “absolute immunity” “to any act
occurring during the course of a judicial proceeding, regardless of whether
the act involves a defamatory statement or other tortious behavior . . . so
long as the act has some relation to the proceeding.” Levin, Middlebrooks,

11
Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606,
608 (Fla. 1994). “It is the perceived necessity for candid and unrestrained
communications in those proceedings, free of the threat of legal actions
predicated upon those communications, that is at the heart of the rule.”
Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380,
384 (Fla. 2007). “Just as participants in litigation must be free to engage
in unhindered communication, so too must those participants be free to
use their best judgment in prosecuting or defending a lawsuit without fear
of having to defend their actions in a subsequent civil action for
misconduct.” Id. (quotation omitted).

However, a malicious prosecution action is not so privileged, because
“the first element of a claim for malicious prosecution is that an original
criminal or civil judicial proceeding against the present plaintiff was
commenced or continued.” Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla.
2017) (cleaned up). Thus, “[i]f the litigation privilege could apply to bar a
malicious prosecution action, this would mean that the tort of malicious
prosecution would be effectively abolished in Florida—or, at the very least,
eviscerated beyond recognition.” Id. (citation omitted).

Against this backdrop, Appellees argue that our precedent in Procacci
v. Zacco, 402 So. 2d 425, 427 (Fla. 4th DCA 1981) holds that the filing of
a lis pendens is subject to the litigation privilege. 7 But Procacci did not
hold that. Procacci adopted the unremarkable rule from a majority of
jurisdictions that “[a] notice of lis pendens, filed under the authority of a
statute, is . . . as much entitled to the benefit of privilege, within
contemplation of libel laws, as are the pleadings in the action to which the
notice relates.” Id. at 428 (citation omitted). In other words, the lis
pendens’ content is privileged to the same extent that the content of other
litigation pleadings—complaints, motions, and the like—are privileged.
Under the circumstances alleged here, and consistent with Atkinson, the
litigation privilege does not warrant dismissal at the pleading stage of
claims predicated on the allegedly wrongful filing of a lis pendens wholly
lacking the required nexus to the property. 400 So. 2d 1324.

Our Supreme Court rejected the litigation privilege’s application to
malicious prosecution claims because an element of the tort is the act of
wrongfully pursuing litigation. Debrincat, 217 So. 3d at 70. For similar
reasons, the litigation privilege does not necessarily bar claims premised

7 Appellees properly concede that the privilege is unavailable as to the malicious

prosecution claim given Debrincat.

12
on the allegedly wrongful filing of a lis pendens where the asserted tort
itself challenges the propriety of the recording.

And we have held as much for nearly as long as Procacci has existed.
A few weeks later, in Atkinson, we rejected application of the privilege to a
slander of title claim, noting that “the filing of the lis pendens was not
privileged since it was neither a proper notice of lis pendens nor did it
involve the property in litigation,” adding a “cf.” citation to Procacci.
Atkinson, 400 So. 2d at 1326; accord Rubinstein v. Keshet Inter Vivos Tr.,
2019 WL 2254715, at *3 (S.D. Fla. Mar. 5, 2019) (“This means that – if
Plaintiffs intentionally filed a wrongful lis pendens – that conduct could
fall outside the scope of the litigation privilege.”); Mendez v. U.S. Bank,
Nat’l Ass’n, 2017 WL 5634941, at *2 (S.D. Fla. Sept. 25, 2017) (“There are
exceptions to this rule [i.e., application of the litigation privilege], however,
particularly in factual scenarios where the legitimacy of the lis pendens
itself is being challenged.”); Phillips v. Epic Aviation, LLC, 234 F. Supp. 3d
1174, 1216 (M.D. Fla. 2017) (“In the current case, the filing of the Notice
of Lis Pends [sic] fell outside the Florida litigation privilege. . . . The
Property was not at issue, and would not have been impacted, except by
future litigation asserting frivolous arguments.”).

Accordingly, the litigation privilege cannot serve as a basis for the
dismissal of Former Husband’s second amended complaint to the extent
the claims turn on, as an element, the wrongful act of filing the lis
pendens.

III. CONCLUSION

Because, on these pleaded facts, the pending enforcement proceeding
did not directly affect title to or possession of Former Husband’s residence,
and because section 61.11 did not authorize the notice of lis pendens, the
lis pendens was improper. And to the extent the claims turn on the alleged
wrongful filing of the lis pendens, the litigation privilege does not provide
Appellees immunity from suit. Accordingly, we reverse the trial court’s
order dismissing Former Husband’s second amended complaint with
prejudice, and remand for further proceedings. 8

Reversed and remanded for further proceedings consistent with this
opinion.

8 We do not pass on whether the second amended complaint otherwise states

each asserted cause of action.

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CIKLIN and GERBER, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

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