Kleinfelter’s Auction Inc., v. Zachary W. Simone

Kleinfelter’s Auction Inc., v. Zachary W. Simone

Civil Action-Equity-Breach of Contract-Auction-Real Property-Praecipe for Lis Pendens-Notice to Third Parties-Litigation-Title to Property at Issue-Harsh and Arbitrary-Prejudice

Kleinfelter’s Auction, Inc., (“Plaintiff”) and Zachary W. Simone (“Defendant”) entered into an agreement for auction of a property, the auction of which was not successful.  Plaintiff filed a Writ of Summons and Praecipe for Lis Pendens against the property on the basis that under the agreement it is entitled to liquidated damages based upon a percentage of the sale of the real estate.  Defendant has filed a Praecipe to Remove Lis Pendens.

1.  Lis pendens is construed to be the jurisdiction, power or control that a court acquires over property involved in a suit pending the continuance of the action and until final judgment. 

2.  Lis pendens may be imposed when a property is subject to litigation and any interest acquired by a third party will be subject to the result of the litigation. 

3.  The purpose of lis pendens is to give notice to third parties that the real estate is subject to litigation and any interest that may be acquired in the real estate will be subject to the results of the action.

4.  If title to property is not the subject of the result of the litigation, there is no reason to provide notice to a third party about the litigation. 

5.  The court should apply a two (2) part analysis in determining whether exerting the court’s control over real property is appropriate:  (1) examine whether title is at issue in the pending litigation; and (2) balance the equities to determine whether the application of the doctrine is harsh or arbitrary and whether the cancellation of lis pendens would result in prejudice to the non-petitioning party.    

6.  Since the title to the property is not at issue in the pending litigation, lis pendens would prove harsh and arbitrary. 

L.C.C.C.P. No. 2024-CV-1087, Opinion by Charles T. Jones, Jr., Judge, March 28, 2025.