Letters
Textualist Revolution?
Textualism is not so much a revolution, as it is a reaction to progressive decisions by previous courts rendered by what former Justice Breyer calls the use of “pragmatism.”
Article I, §8, of the U.S. Constitution, says Congress may raise an “army,” and fund a “navy.” How then does an “originalist” allow it to pay for an air force, let alone a space force? Even contemporaneous documents at the time such as the Federalist Papers offer no help, so what is an originalist to do but yield to pragmatism?
While the author is correct in saying that Florida practitioners must follow what the state Supreme Court tells us to in order to get the outcomes we want, it doesn’t mean originalism is a legitimate way to decide cases any more than Florida’s way of doing things back in the bad old days was undone by decisions like Brown v. Board of Education and Baker v. Carr.
Thomas H. McGowan
St. Petersburg
Lis Pendens II
The article, “Protecting Interests or Hindering Real Estate Deals? Impact of a Lis Pendens When Selling Real Property in Florida” (May/June 2024), and the related letter to the editor that appeared in the July/August 2024 Bar Journal discuss a serious problem for buyers and sellers of real estate.
The purpose of the notice of the lis pendens is to put buyers on notice of litigation on any “real or personal property involved therein or to be affected thereby,” under F.S. 48.23(1)(a). When a title search encounters a notice of lis pendens, the underwriters should then be looking further into the proceedings as to whether and how the property is involved or could be affected.
An example of where this is important is in a construction/mechanics lien foreclosure proceeding where, during the proceeding, the defendant/homeowner has transferred the lien to a cash bond, for the purpose of clearing title to the property. Once the lien is transferred to a cash bond, title to the property should be clear, as any judgment against defendant would be executed against the cash bond and, if the cash bond were insufficient, against the defendant, not the property. (Theoretically, in the event that defendant were uncollectible, a judgment in this action could attach to the property while owned by the defendant, but no judgment could attach to the property once it was sold.) At this point, the lawsuit no longer affects the property, whether or not the notice of lis pendens has been officially discharged.
The risks to the title insurer under these circumstances should be minimal. If underwriters will only issue policies when they find that there is zero risk of a potential need to defend title in court or otherwise affirmatively establish title, we must question the value of title insurance.
Andrea Mirabito Frank
Sarasota
Errata
In the July/August Journal, author Barry Nelson’s name was spelled incorrectly in his and Cassandra Nelson’s article, “Florida Golf Cart Owners Should Beware of Huge Potential Liability.” The Journal regrets the error.
