IN THE SUPREME COURT OF FLORIDA. MIRACLE CENTER ASSOCIATES, etc., Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC MIRACLE CENTER ASSOCIATES, etc., Petitioner, vs. SCANDINAVIAN HEALTH SPA, INC., etc., Respondent. ON APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, CASE NO. 3D PETITIONER=S BRIEF ON JURISDICTION RICHARD J. LEE, ESQ. RICHARD J. LEE, P.A. Gables International Plaza Fifth Floor 2655 LeJeune Road Coral Gables, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 3 THE DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, IS CONTRARY TO DECISIONS OF OTHER DISTRICT COURTS OF APPEAL OF FLORIDA, WHICH HAVE HELD THAT AN ESSENTIAL ELEMENT OF WAIVER IS THE INTENTIONAL RELINQUISHMENT OF A KNOWN RIGHT AND THEIR CAN BE NO IMPLIED WAIVER BASED ON CONDUCT, IF SUCH CONDUCT IS THE RESULT OF INADVERTENT ERROR. UNINTENDED CONDUCT DUE TO MISTAKE OR ERROR IS THE ANTITHESIS OF AN INTENTIONAL RELINQUISHMENT OF A KNOWN RIGHT. CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i

3 ii

4 TABLE OF CITATIONS Cases: Pages: Abamar Housing and Development, Inc. v. Lisa Daly Decor Inc., 698 So. 2d 276 (Fla. 3d DCA 1998)... 5 Am. Somax v. Tourma, 547 So. 2d 1266 (Fla. 4 th DCA 1989)... 7 Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981)... 4 Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5 th DCA 2003)... 6 Choctawahatchee Electric Cooperative, Inc. v. Gulf Power Company, 265 So. 2d 417 (Fla. 1 st DCA 1972)... 7 Grace McMillan v. The Oaks Of Spring Hill Homeowner=s Association, Inc., 754 So. 2d 160 (Fla. 5 th DCA 2000)... 7 Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581 (Fla. 1 st DCA 1985)... 6 Zurstrassen v. Stonier, 786 So. 2d (Fla. 4 th DCA 2001)... 7 iii

5 STATEMENT OF THE CASE AND FACTS This case was commenced by the tenant, Scandinavian, when it brought suit in 2000 in the Miami-Dade County Eleventh Circuit Court (Atrial for an accounting and for rent adjustment against the landlord, Miracle Center Associates, alleging that a refund was due because certain common area expenses included in the rent were incorrect. In response to the suit for an accounting, Miracle Center Associates had its books and records reviewed and it was discovered that, due to computer generated billing errors, the landlord had inadvertently failed to include in the rent certain common area expenses attributable to a portion of the space leased by the tenant. Miracle Center Associates brought a compulsory counterclaim in recoupment for the accrued but unpaid rent. Scandinavian=s claim was resolved and dismissed with prejudice during trial. Miracle Center Associates claim was tried and final judgment was entered. The trial court held that pursuant to the clear terms of the long term commercial lease, Scandinavian, as tenant, was required to pay its proportionate share of common area expenses as additional rent to Miracle Center Associates, as landlord, based on all the space occupied by Scandinavian at the Miracle Center mall. However, notwithstanding the fact the tenant did not defend at trial by alleging waiver, ( the tenant instead unsuccessfully argued that the terms of lease excluded part of its leased space from the computation of its share of common area expenses) the trial court held, that the tenant did not have to pay the accrued but unpaid common area expenses because the landlord had lost its right to the additional rent by failing to bill the tenant for the additional rent, even if the failure to bill the rent was due to inadvertent error. The trial court erroneously held that it made no difference whether the Page 1

6 landlord=s failure to bill for the rent was intentional or due to inadvertent error, the result is the same. Additionally, the lease had a clear anti-waiver provision which required any waiver by the landlord to be in writing and signed by the landlord and the tenant, thereby precluding an implied waiver by conduct. The District Court of Appeal of Florida, Third District, affirmed the trial court citing with approval, the trial court=s erroneous legal conclusion that an implied waiver can be based on inadvertent error. Further, the Third District totally ignored the anti-waiver provisions of the lease even though that issue had been thoroughly argued and explored by the court in the video taped oral argument. Upon motion for rehearing, rehearing en banc and for certification, the Third District denied the motions but withdrew its original opinion and replaced it with a new opinion, which again affirmed the lower court (ASecond Opinion@). Although the Third District had revised its opinion, the Second Opinion again cited with approval the trial court=s erroneous conclusion that an implied waiver can be based on inadvertent error and once again ignored the anti-waiver provisions of the lease even though that issue had been argued in the oral argument and had been briefed in the motion for rehearing. SUMMARY OF THE ARGUMENT The law in Florida is clear that an essential element of any waiver is the intentional Page 2

7 relinquishment of a known right. Accordingly, their can be no implied waiver based on conduct, if such conduct is the result of inadvertent error. Unintended conduct due to mistake or error is the antithesis of an intentional relinquishment of a known right. ARGUMENT The Third District erroneously cites in its Second Opinion with approval and affirmation, the incorrect legal conclusion of the trial court as to the law in Florida pertaining to waiver, to wit: A It matters not whether the landlord mistakenly omitted the roof-top in calculating CAM [common area expenses] or did so intentionally, with evidence to support both theories before the court, the result is the same. MCA waived its right to include the roof-top pool area for the purpose of calculating common area expenses...@ The trial court made it crystal clear in the above quoted portion of its final judgment, that it believed the factual determination of whether or not the landlord intentionally or mistakenly failed to include all of the tenant=s space in calculating the rent due, is irrelevant [Amatters not@ as the trial court put it] to the finding of an implied waiver under Florida law. The trial court also made it crystal clear that although there was evidence before it as to whether or not the landlord intentionally or mistakenly failed to include all of the tenant=s space in calculating the rent due, it made no finding of fact as to that issue because of its erroneous belief that it was irrelevant since it believed, as a matter of law, that the result would be the same in either event. The cases cited by the Third District in its Second Opinion are not on point as to the issue of whether or not the legal position taken by the trial court in its final judgment is correct or erroneous. The cases cited by the Third District deal with issues that were not disputed in this Page 3

8 case. It is not disputed that a party may waive a right to which it is legally entitled, including those arising by contract. Nor is it disputed that a waiver may be expressly given, or, implied by intentional conduct under circumstances which warrant an inference that a known right has been waived. The District Courts of Appeal of Florida have consistently held that an inference of an implied waiver is not warranted or allowed when based on conduct that is the result of error or mistake. Arbogast v. Bryan, 393 So. 2d 606 (Fla 4 th DCA 1981) reflects the general rule of law in Florida that a waiver may be implied in a case of forbearance only if there is clear evidence that the conduct was intentional and not the result of error. In the Arbogast case, Bryan, a real estate salesman, had a commission contract with broker Arbogast. Pursuant to the contract commissions were to be divided equally, with the broker=s expenses to be paid from his share of the commissions. The lower court in that case held that the broker had wrongfully deducted certain of its expenses (fees paid to analyst Patrick Ryan) from the gross commissions before they were divided equally between Bryan and Arbogast, thereby shorting Bryan on the correct amount of commissions due under the contract. The 4 th DCA referred to Fla. Jur. 2d, Estoppel & Waiver, ss stating that an essential element of waiver under Florida law, is an intention to relinquish a known right. The court held that in applying essential elements of waiver in that case, it was clear that Bryan had in fact waived his right to the additional commissions because Bryan was fully aware that the fees Page 4

9 paid to Patrick Ryan caused a reduction in his commissions and he voiced no objection for over six years. Bryan testified at trial that he made no comment at the time because he did not want to start Arocking the boat@ and because he did not want to jeopardize his employment with the broker. Accordingly, the court stated: A Where a party intentionally (emphasis added) relinquishes a known right by failing to timely demand performance of the obligations appurtenant to that right, that party cannot expect to subsequently enforce his claim.@ Under Florida law, a waiver cannot be implied in a case of forbearance that is a result of mistake or inadvertent error. In Abamar Housing and Development. Inc. v. Lisa Daly Decor Inc., 698 So. 2d 276 (Fla. 3d DCA 1998), the Third District clearly summarized the law in Florida pertaining to implied waiver when the conduct was caused by inadvertent error. The court in the Abamar case stated: A The issue in this case is whether the inadvertent disclosure of attorney-client privileged documents constituted a waiver of that privilege.( emphasis original)... Florida law recognizes that the waiver of a privilege >imports the intentional relinquishment of a known right=(emphasis original) Prieto v. Union Am. Ins. Co., 673 So. 2d 521, 523 (Fla. 3d DCA 1996) >Inadvertent production is the antithesis of that concept.= (emphasis original), Kusck, 645 So. 2d at 1039 (Stevenson, J., concurring in part, dissenting in part). Hence, one cannot be deemed to have waived a privilege upon the inadvertent production of documents.@ The court found no implied waiver because the conduct was due to error and therefore Page 5

10 unintentional. The Third District, as well as the other District Courts of Appeal of Florida, have consistently held that where the conduct was the result of a mistake or an error, no implied waiver exists because an essential element of waiver is the intentional relinquishment of a known right. In Taylor v. Kenco Chemical & Mfg. Corp.,465 So. 2d 581 (Fla.1 st DCA 1985) the 1 st DCA stated that an essential element of waiver is the intent to relinquish a right. The court went on to state that waiver may be express or implied from conduct, but when waiver is to be implied from conduct, the circumstances must make out a clear case that the party intended to waive the right. The court further stated: AWe are of the opinion that Taylor=s conduct does not make out that requisite clear case which would show that he intended to relinquish his right to reformation@ (emphasis added). Likewise, the 5 th DCA in Bishop v. Bishop, 858 So. 2d 1234 (Fla.5th DCA 2003) stated: AAgain we disagree, waiver is the intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment of a known right...there is nothing in the record to establish that the former wife intended to relinquish her right( emphasis added) to collect child support arrearages by dismissing the enforcement action.@ Also, the 4 th DCA in Zurstrassen v. Stonier, 786 So. 2d 65(Fla.4th DCA 2001) and Am. Somax v. Tourma, 547 So. 2d 1266(Fla. 4 th DCA 1989) held that waiver may be implied by conduct, but that conduct must be clear because the elements of waiver include...the intention to relinquish the right. Page 6

11 In the instant case, since the trial court, as the trier of fact, clearly made no finding as to whether the landlord=s forbearance to bill the rent was intentional or an error, an implied waiver cannot be found, as a matter of law. The burden of proof was on the tenant as the defendant to prove the elements of waiver. Grace McMillan v. The Oaks Of Spring Hill Homeowner=s Association, Inc., 754 So. 2d 160 (Fla. 5 th DCA 2000); Choctawhatchee Electric Cooperative, Inc. v. Gulf Power Company, 265 So. 2d 417 (Fla. 1 st DCA 1972). Part of that burden would be to establish the essential elements of waiver required by Florida law, including but not limited to, proving that it was an intentional waiver of a known right. This burden was not met since it is clear that the trial court made no finding as to whether MCA=s conduct was intentional, an error or otherwise. Page 7

12 CONCLUSION It is clear that the decision under review is contrary to the principle of law, as stated in the decisions of the District Courts of Appeal, First District, Fourth District, Fifth District as well as other decisions of the Third District, that an essential element of Waiver is the intentional relinquishment of a known right, and that an implied waiver cannot be based on conduct that is the result of inadvertent error. Therefore, it is respectfully requested that the court accept jurisdiction of this appeal. Respectfully submitted, Richard J. Lee, Esq. RICHARD J. LEE, P.A. Gables International Plaza Fifth Floor 2655 LeJeune Road Coral Gables, Florida Telephone: (305) Facsimile: (305) Attorneys for Petitioner, MIRACLE CENTER ASSOCIATES Richard J. Lee Florida Bar No Page 8

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished by U.S. Mail this day of June, 2005, to Kenneth J. Weil, Esquire, Attorney for Scandinavian, Miami Center-10th Floor, 201 S. Biscayne Boulevard, Miami, Florida Richard J. Lee CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief was prepared in Times New Roman, 14- point font. Richard J. Lee Page 9