Posnansky v. Breckenridge Estates Corp., 92-1675
| Decision Date | 16 June 1993 |
| Docket Number | No. 92-1675,92-1675 |
| Citation | 621 So.2d 736 |
| Parties | 18 Fla. L. Week. D1436 William E. POSNANSKY and Adele D. Posnansky, Appellants, v. BRECKENRIDGE ESTATES CORPORATION, a Florida corporation, and Glendale Federal Bank, F.S.B., Appellees. |
| Court | Florida District Court of Appeals |
William E. Blyler, Coral Springs, for appellants.
Linda Conahan and Sabrina Weiss, English, McCaughan & O'Bryan, P.A., Fort Lauderdale, and William Berger and Jaana T. Moisio of Goldberg & Young, P.A., Fort Lauderdale, for appellee-Glendale Federal Bank, F.S.B.
This appeal is from a final judgment in an action to foreclose a vendee's lien. We affirm the judgment in favor of Defendant Glendale Federal Bank, which proved it held a lien superior to Plaintiffs', but we reverse and remand for the entry of a final judgment of foreclosure against Defendant Breckenridge Estates Corporation, which at the time of filing suit was the owner of the property to which the lien attached. 1
The Plaintiffs' vendee's lien arose when they contracted with Breckenridge for the latter to build and sell them a home, and Breckenridge defaulted on the contract and refused to return the Plaintiffs' deposit, which had not been escrowed. 2 They filed suit to foreclose, naming Glendale and others as junior lienors. A default was entered against Breckenridge, and the case proceeded on the question of the relative priority of the Plaintiffs' lien as against Glendale's mortgage. Dispositive of that issue was the fact that the Plaintiffs had executed an agreement to subordinate any interest they had under the contract to Glendale's mortgage lien.
After entering final judgment in favor of Glendale, the trial court denied Plaintiffs' request for a final judgment against Breckenridge. We see no error in the trial court's ruling as to Glendale; however, the trial court erred in failing to enter judgment against Breckenridge.
On review of the record, we conclude that the enforceability of the Plaintiffs' lien did not become an issue at trial until Glendale filed its written "final argument" with the trial court, taking the position that a lien may not be enforced against a property which has subsequently been foreclosed by a senior mortgagee. 3 However, Glendale never disputed the existence of the lien. There is no counterclaim, and no affirmative defense or other pleading raises this issue. We also note that Glendale took no action to compel the Plaintiffs to exercise their right of redemption or have the same barred. The Plaintiffs were given no opportunity prior to their motion for rehearing to attempt to rebut Glendale's argument. It appears they never consented to trying the question of whether they should have intervened in Glendale's foreclosure action, and whether they lost any rights in the instant case by failing to do so. Therefore, it was improper for the trial court to refuse on that basis to enter a judgment in their favor against Breckenridge after its default, and no other basis for failing to do so appears in the record. Accordingly, we remand for the trial court to enter a final judgment of foreclosure against Breckenridge.
Having determined that the only issue in this case involving Glendale was one of priority, resolved in its favor, this opinion should not be construed as resolving any other issues raised in this appeal with respect to the title to the property. Nothing contained in the opinion should be construed as restricting any right of Glendale Federal to reforeclose its mortgage against Appellants.
ON MOTION FOR REHEARING
Appellants' motion for rehearing is denied except that our opinion of June 16, 1993 is modified for clarification. We strike the last sentence of the opinion and substitute the following sentence: [
1 While this action was pending in the trial court, Glendale acquired title at foreclosure sale pursuant to a foreclosure action it previously had filed (and to which it...
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