G.B.B. Investments, Inc. v. Hinterkopf

• Decision Date: 14 March 1957
• Citation: 343 So.2d 899
• Parties: G.B.B. INVESTMENTS, INC., a Florida Corporation, Appellant, v. Ernest HINTERKOPF and Hilda B. Hinterkopf, as Trustees under the Hinterkopf Trust dated
• Court: Florida District Court of Appeals

Page 899

343 So.2d 899

G.B.B. INVESTMENTS, INC., a Florida Corporation, Appellant, v. Ernest HINTERKOPF and Hilda B. Hinterkopf, as Trustees under the Hinterkopf Trust dated March 14, 1957, recorded in Official Records Book 128, at page 120, Public Records of Dade County, Florida, Appellees.

No. 76--1343.

District Court of Appeal of Florida, Third District.

March 1, 1977.

Rehearing Denied April 13, 1977.

Guy B. Bailey, Jr., Batchelor, Brodnax, Guthrie & Primm, Miami, for appellant.

Cypen & Nevins and Stephen H. Cypen, Miami Beach, for appellees.

Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HUBBART, Judge.

This is a counterclaim in a mortgage foreclosure suit in which the counterclaimant-mortgagor sought a declaratory decree, injunctive relief and damages against the plaintiff-mortgagee. The trial court dismissed the counterclaim unless the counterclaimant-mortgagor posted either in the registry of the court or through a comparable alternative the amount due on the mortgage plus delinquent interest and taxes. The counterclaimant-mortgagor takes an interlocutory appeal.

The issue presented for review is whether a trial court can condition the hearing of a counterclaim in a mortgage foreclosure suit on the counterclaimant's payment into the registry of the court of the amount due on the mortgage plus delinquent interest and taxes. We hold that the trial court may not make such a pre-condition for access to the courts and that to do so constitutes a violation of the counterclaimant's right to free access to the courts guaranteed by Article I, Section 21, Florida Constitution (1968). Accordingly, we reverse.

On January 10, 1969, the appellant-mortgagor, G.B.B. Investments, Inc. ('G.B.B.') purchased a large tract of land in Dade County, Florida from the appellee-mortgagee Ernest Hinterkopf and Hilda D. Hinterkopf, as trustees under the Hinterkopf Trust ('Hinterkopfs'). In payment thereof, G.B.B. gave the Hinterkopfs promissory note in the amount of $3,280,000 secured by a purchase money mortgage. The note was payable in ten annual installments of $328,000 plus 5 1/2 percent interest beginning January 10, 1970.

The mortgage deed provided that G.B.B. was entitled to release from lien of certain mortgaged parcels of land upon payment of a certain sum per acre. The price paid for each release was to be credited against the next subsequent payment of principal becoming due on the note. The parties subsequently entered into a mortgage modification agreement providing for a different release schedule of properties at a higher release price. G.B.B. also agreed to have a road built onto the property by a date certain or make other arrangements satisfactory to the Hinterkopfs. If this was not accomplished, G.B.B. would be entitled to nor more releases of land.

Several years thereafter, the parties fell into a number of disputes. The Hinterkopfs eventually filed suit to foreclose the mortgage on the ground of waste. They further amended their suit to allege a default on the January 1976 mortgage payment.

G.B.B. answered denying waste and filed an amended counterclaim against the Hinterkopfs for a declaratory decree, injunctive relief and damages. G.B.B. alleged in the counterclaim that it was entitled to a declaration of rights under the mortgage modification agreement. It alleged that the Hinterkopfs have refused to accept release payments when tendered by G.B.B. for particular tracts of land; that a certain sale of land by G.B.B. to a third party has thereby been thwarted; that it was entitled to the release of certain tracts of land upon proper payment as previously tendered; and that the said mortgage modification agreement was in full force and effect even though the road on the property had not been built since satisfactory arrangements had been made with Dade County to build the road in the near future. G.B.B. further sought damages in its counterclaim for interference with contractual relations in that the Hinterkopfs allegedly interfered with and caused the loss of a contract between G.B.B. and a third party on the sale of certain tracts of land which allegedly should have been released by the Hinterkopfs.

The trial court upon motion of the Hinterkopfs entered an order dismissing the G.B.B. counterclaim 'unless G.B.B. shall deposit into the registry of this court . . . the aggregate sum of $427,547.60.' This amount represented the January 1976 mortgage payment plus delinquent interest and real estate taxes allegedly owed by G.B.B. If payment was made after a certain date, the sum required to be deposited would be increased by $197.70 per day. There were alternative provisions in the order for making these payments by setting up a joint bank account and issuing a letter of credit. G.B.B. appeals this order.

I

We are unable to find any authority, and the appellees cite none, which requires a mortgagor in a mortgage foreclosure suit to pay into the registry of the court all mortgage payments plus delinquent interest and taxes as a pre-condition for maintaining a counterclaim against the plaintiff-mortgagee. No Florida statute authorizes it. No Florida case sanctions it. No Florida constitutional provision mandates it.

This lack of authority for such a financial requirement to bringing suit brings the precondition into direct collision with G.B.B.'s constitutional right to free access to the courts. Article I, Section 21, Florida Constitution (1968), expressly provides:

'Access to courts.--The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.'

This constitutional right has roots deep in Anglo-American legal history dating back to the Magna Charta. ¹ Flood v. State ex rel. Homeland, Co., 95 Fla. 1003, 117 So. 385 (1928). It first appeared in Florida in the 1838 Florida Constitution and has been retained in every constitutional revision since then. ² It guarantees to every person the right to free access to the courts on claims or redress of injury free of unreasonable burdens and restrictions. Any restrictions on such access to the courts must be liberally construed in favor of the constitutional right. Lehmann v. Cloniger, 294 So.2d 344 (Fla.1st DCA 1974).

The courts have generally disapproved financial pre-conditions to bringing claims or asserting defenses in court aside from court related filing fees. A payment to the court clerk to be used in constructing a county law library as a condition for bringing a lawsuit has been declared an undue burden on the right of free access to the courts. Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928). Requiring a defendant in a criminal case to pay court-appointed counsel fees and certain appellate costs as a condition for being heard on a motion for supersedeas bail following conviction has been struck down on the same ground. Bell v. State, 281...