MARK G. NAEDEL, APPELLANT,
v.
JOHN D. BOLLE AND PATRICIA C. BOLLE, HIS WIFE, APPELLEES
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In an interlocutory appeal from a boundary and easement dispute between a property seller and buyers, the court reversed the trial court's denial of the seller's motion to release mortgage payments held in the court registry, finding that possession of the funds was not at issue in the underlying lawsuit.
The court reversed, holding that possession of the funds in the court registry was not at issue in the lawsuit. The seller had waived any error regarding the failure to provide proper notice by waiting many months to object, but the court found merit in the argument that the funds should not be held in the registry given they were not disputed in the action, particularly where the seller offered to post a bond.
[1] A party waives the right to object to an order if they wait an unreasonable amount of time after filing responsive pleadings before raising the objection.
[2] A court may err in denying a motion to release funds from the court registry when possession of those funds is not the central issue in the underlying lawsuit.
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Join FLexlaw to unlock all legal intelligence“Because we find that possession of the funds in the court registry is not at issue in the lawsuit, we reverse.”
States the core holding and rationale for reversal
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Join FLexlaw to unlock all legal intelligenceAfter closing a real property sale, a dispute arose regarding allegedly unauthorized modifications to closing documents and title papers. The buyers c…
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DANAHY, Acting Chief Judge.
In this interlocutory appeal arising from a boundary and easement dispute, the seller of the real property who took back a mortgage on the property contends the trial court erred in denying his motions to release funds from the court registry. Because we find that possession of the funds in the court registry is not at issue in the lawsuit, we reverse.
After the closing of the transaction for the sale of the property took place, a disagreement arose concerning allegedly unauthorized modifications in the closing documents and title papers which did not truly reflect the intentions of the parties as set out in the sales contract. The seller maintains that these modifications changed to his detriment the scope of the possessory interests transferred in the sale. The details of this dispute are not relevant here. Suffice it to say that the buyers commenced a declaratory action which included counts for injunction, tortious interference with contract, and damages for anticipatory breach. The buyers also moved at the commencement of the lawsuit to deposit the monthly mortgage payments into the court’s registry. The court granted this motion and the buyers have since faithfully deposited each month’s payment into the registry. Many months later the seller moved the court to set aside this order directing the mortgage payments to be deposited into the registry as being inappropriately entered without proper notice or, in the alternative, to release the monies representing the accrued monthly mortgage payments to the seller. The seller also offered to post a bond for the accrued amount. The trial court denied both these motions and the seller appealed.
Of the two issues presented we find that the seller has waived any error in the denial of his first motion to set aside the original order directing deposits into the registry. This is so because he waited many months after filing timely responsive pleadings before he first objected to the order. However, we do find merit in the seller’s second argument that possession of the funds is not at issue in the underlying action. Further, we especially note that the seller had offered to post a bond. See De Anza Corp. v. Tenants Civil Ass’n of Park Lake Estates, Inc., 399 So. 2d 455 (Fla. 4th DCA1981).
Reversed and remanded for further proceedings in accord with this opinion.
PARKER and ALTENBERND, JJ., concur.
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Fiscal Operations, Inc. v. Metro. Dade Cnty., 808 So. 2d 1287 (Fla. 3d DCA 2002)…be sued by the County before they can seek its protection. Fiscal Operations also argues that rule 1.600 does not apply because I.T.O. and Stevedoring do not dispute that the moneys are owed nor do they dispute the amount owed. See Naedel v. Bolle, 627 So. 2d 27 (Fla. 2d DCA 1993)(no legal basis for order directing funds to be deposited into court registry where possession of funds is not at issue). However, Fiscal Operations overlooks the fact that the very purpose of this lawsuit is to determine to whom t…
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