Regency Highland Associates v. Regency Highland Condominium Ass'n, Inc., 81-13

• Citation: 405 So.2d 788
• Decision Date: 12 November 1981
• Docket Number: No. 81-13,81-13
• Parties: REGENCY HIGHLAND ASSOCIATES, Appellant/Cross-Appellee, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant, v. MARIO AURICCHIO FENCE DIVISION, INC., and Fence Wholesalers of America, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 788

405 So.2d 788

REGENCY HIGHLAND ASSOCIATES, Appellant/Cross-Appellee, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant, v. MARIO AURICCHIO FENCE DIVISION, INC., and Fence Wholesalers of America, Inc., Appellees.

No. 81-13.

District Court of Appeal of Florida, Fourth District.

Nov. 12, 1981.

Joel D. Kenwood of Baskin & Sears, Boca Raton, for appellant/cross-appellee.

Robert A. Eisen of Marchbanks, Bell & Bison, P.A., Boca Raton, for appellee/cross-appellant.

No appearance for appellees.

MOORE, Judge.

A condominium developer, Regency Highland Associates, appeals from an order directing it to pay a damage award to the condominium association or, in the alternative, into the court registry. The condominium association cross-appeals a prior order denying its motion to intervene in the developer's suit against the fence companies, Mario Auricchio Fence Division, Inc. and Fence Wholesalers of America, Inc., ¹ from which the developer recovered the above mentioned damage award. We affirm the order denying the association's motion to intervene and reverse the order directing payment of the damage award.

After the developer transferred control of the condominium to the association, it sued the fence company for breach of warranty. Final judgment was entered in favor of the developer for $6,282.70.

The fence company filed a "Motion for Protective Order/Motion for Clarification and Stay of Execution." The motions expressed the fence company's concern over its possible liability to the association. The motions sought a protective order against the taking of a deposition in aid of execution and a stay of execution until the real party in interest entitled to recovery against the fence company could be determined.

The association then filed a motion to intervene in the developer's suit against the fence company pursuant to Florida Rule of Civil Procedure 1.230. The motion alleged that the developer had transferred control of the condominium to the association and, therefore, the association is the real party in interest entitled to recover the judgment entered against the fence company.

At the hearing on the motion for protective order, in response to the fence company's concern about a separate suit against it by the association, the developer stipulated that it would use the money recovered from the fence company to repair the fence. The court then denied the fence company's motion for protective order.

The developer executed a satisfaction of the judgment against the fence company. The trial court initially orally granted the association's motion to intervene. The association then filed a motion to enforce the stipulation made by the developer in court that the proceeds of the judgment would be used to repair the fence. Upon rehearing of the motion to intervene, however, the trial court denied intervention. Nevertheless, the court then granted the association's motion to enforce the stipulation. This appeal followed.

The trial court denied the association's motion to intervene by applying the general rule against intervention after final judgment. Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956); Dickinson v. Segal, 219 So.2d 435 (Fla.1969); Maryland Casualty Company v. Hanson Dredging, Inc., 393 So.2d 595 (Fla. 4th DCA 1981). On appeal, the association, however, asserts that the trial court abused its...