A Florida court in Orange county granted a defendant’s “motion to waive posting of rent into the rent registry until such time as the court rules on defendant’s pending motion to dismiss without leave to amend” when the court determined that the substance of the defendant’s motion to dismiss challenged the court’s eviction power.  See opinion below.

SHUI HUA YEE & CINO INTERNATIONAL INC, Plaintiff, vs. DAQUELL LEE DIGGS & ASHLEY MARQUEZ, Defendants. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2013-CC-3727-O, Division 72. March 21, 2013. Wilfredo Martinez, Judge. Counsel: Jaisen J. Stango, Jaisen J. Stango, LLC, Orlando, for Defendants.

 ORDER GRANTING DEFENDANT’S MOTION 

TO WAIVE POSTING OF RENT INTO THE RENT 

REGISTRY UNTIL SUCH TIME AS THE COURT 

RULES ON DEFENDANT’S PENDING MOTION 

TO DISMISS WITHOUT LEAVE TO AMEND

THIS MATTER came before the Court for consideration upon Defendant’s Motion to Waive Posting of rent into the rent registry. The Court, after carefully reviewing the pleadings and motions filed in this action, and otherwise being fully informed in the premises, finds that the motion has merit and must be granted. Accordingly, for the reasons stated herein, the Court does hereby

ORDER, ADJUDGE, and FIND as follows:

 BACKGROUND

1. This is an action to evict Defendant for nonpayment of rent filed pursuant to the Florida Residential Landlord and Tenant Act, Chapter 83, Part II, of the Florida Statutes.

2. Defendant through counsel, Jaisen J. Stango, Esquire, filed a motion to dismiss this eviction action without leave to amend and a motion to waive posting of the rent into the rent registry pending the Court’s ruling on Defendant’s motion to dismiss.

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

3. Defendant’s motion to dismiss alleges the notice attached to the complaint is fatally defective for demanding monies not delinquent on the day the notice was allegedly served. The allegations and issues raised in Defendant’s motion to dismiss, if true, are dispositive on whether or not this Court has Jurisdiction to evict Defendant in the above-captioned eviction action.

4. An attack on this Court’s jurisdiction is not a “defense” within the meaning of § 83.60(2), Fla. Stat., but rather is a challenge on this Court’s authority to exercise its eviction power. An attack on this Court’s jurisdiction is not waived by failing to deposit monies into the rent registry. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th App. Ct. 2009); Palatka Retirement Villas, Inc. v. Robinson, 10 Fla. L. Weekly Supp. 377a (Fla. 7th Cir. Ct. 2003); Barbara Banks v. Housing Authority of Brevard County,Case No. 85-8213-AP (Fla. 18th App. Ct. 1985).

5. This Court in Russell v. Livingston, 19 Fla. L. Weekly Supp. 481c (Fla. Orange Cty. Ct 2012) held the Fourth District Court of Appeal’s decision in Stanley v. Quest Intl Inv., Inc., 50 So.3d 682 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a] is not binding on trial courts within the jurisdiction of the Fifth District Court of Appeal for the reason that Stanley is in direct contradiction with the Fifth District Court of Appeal’s decision in Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (citing Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983)) which held a “statutory cause of action cannot be commenced until the claimant has complied with all the conditions precedent.”

6. This Court’s decision in Russell v. Livingston, 19 Fla. L. Weekly Supp. 481c (Fla. Orange Cty. Ct 2012) was affirmed by the Ninth Circuit in its appellate capacity in Russell v. Livingston, Case No. 2012-CV-18 (Fla. 9th App. Ct. Nov. 8, 2012) [20 Fla. L. Weekly Supp. 218a].

7. For the reasons stated herein, Defendant’s Motion to Waive Posting is hereby GRANTED.

8. Defendant shall be relieved from the requirement to post money into the rent registry until such time as the Court has had an opportunity to rule on Defendant’s pending Motion to Dismiss.