Wincast Associates, Inc. v. Hickey, 75-735
| Decision Date | 03 October 1975 |
| Docket Number | No. 75-735,75-735 |
| Parties | WINCAST ASSOCIATES, INC., Appellant, v. Lawrence J. HICKEY et al., Appellees. |
| Court | Florida District Court of Appeals |
Sanford N. Reinhard of Zinn & Reinhard, Miami, for appellant.
No. appearance for appellees.
The trial court ordered cross-defendant Wincast Associates, Inc. to post with the Court a $50,000 cash or surety bond in favor of cross-claimant Percy Rosemurgy. We reverse and remand with respectful directions that Wincast Associates, Inc. be discharged from the obligation of filing this bond. The bond was designed to ensure recovery by Rosemurgy should he prevail in his claim that Wincast Associates, Inc., the owner of two rental complexes in Crystal Lake Subdivision, owed him certain recreational fees for facilities provided to Wincast in that subdivision. However, there was no proof of the existence of any extenuating circumstance or of any fund comprising the subject matter of the dispute. Such would be necessary to justify ordering a defendant to deposit money with the Court. In Brooks v. Galicia Steamship Co., Ltd., 237 So.2d 582 (3d DCA Fla.1970) the court found similar error:
(Emphasis supplied.) Id. at 583.
Although Rosemurgy claimed that rental payments to Wincast were identifiable funds in dispute, (i. e. the funds from which the recreational payments should be made), this is not acceptable. The recreational payments could be made from any source, and Rosemurgy had no direct claim to the rental payments. In 23 Am.Jur.2d Deposits in Court, § 2 (1965), it is stated:
'The authority conferred on a court to order a deposit of money or property does not apply if the money in the possession of the party is not the subject of the litigation, but rather its payment is an incident thereto, dependent on the judgment to be rendered in the action, as in the case of an action for redemption, specific performance, accounting, rescission, or the like.' Id. at 737.
Rosemurgy is seeking to have certain easements and...
To continue reading
Request your trial
-
Central Bank of Tampa v. US, 92-1389-CIV-T-17B.
...511 So.2d 705, 706 (Fla. 3rd DCA1987); Ramos v. Stabinski & Funt, P.A., 494 So.2d 298 (Fla. 3rd DCA1986); Wincast Associates, Inc. v. Hickey, 320 So.2d 17 (Fla. 4th DCA1975). Although there are statutory means in Florida to obtain attachment or garnishment, the specific requirements were no......
-
Konover Realty Associates, Ltd. v. Mladen
...the court, Ramos, 494 So.2d at 298; Law v. NCNB National Bank of Florida, 452 So.2d 1119 (Fla. 4th DCA 1984); Wincast Associates, Inc. v. Hickey, 320 So.2d 17 (Fla. 4th DCA 1975), or indeed for any restraint upon the use of a defendant's unrestricted assets 3 prior to the entry of judgment.......
-
First States Investors 3300, LLC v. Pheil
...money in question is not the subject of the litigation, see Morroni, 647 So.2d at 129 (citing rule 1.600 and Wincast Assocs., Inc. v. Hickey, 320 So.2d 17 (Fla. 4th DCA 1975)); Geany v. Packers of Indian River, Inc., 660 So.2d 1144, 1145 (Fla. 4th DCA 1995) (citing Wincast Assocs., Inc.). T......
-
UV Cite III, LLC v. Deutsche Bank Nat'l Trust Co.
...a deposit of money in the registry of the court if the money is not the subject of the litigation."); Wincast Assocs., Inc. v. Hickey , 320 So.2d 17, 18 (Fla. 4th DCA 1975) ("The authority conferred on a court to order a deposit of money or property does not apply if the money in the posses......