CASE NO. SC ( ~ JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT FOR CASE NO. SC ( ~ ATE OF FLORIDA L. T. CASE NO. 4D PALM BEACH MARKETPLACE, LLC, Petitioner, ALEYDA'S MEXICAN RESTAURANTE, INC., Respondent. JURISDICTIONAL BRIEF Jennifer S. Carroll Florida Bar Number: LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida (561) [Telephone] (561) [Facsimile] jc@lojscarroll.com Attorney for Respondent

2 Palm Beach Marketplace v. Aleyda Case No. SC TABLEOFCONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 JURISDICTIONAL STATEMENT...3 ARGUMENT...4 THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN PROTEAN INVESTORS, INC. V. TRAVEL, ETC., INC., 499 SO.2D 49 (FLA. 3" DCA 1986)...4 CONCLUSION...7 CERTIFICATE OF SERVICE...8 CERTIFICATE OF COMPLIANCE...9 CERTIFICATE OF COMPLIANCE WITH ADMINISTRATIVE ORDER AOO

3 Palm Beach Marketplace v. Aleyda Case No. SC CASES TABLE OF AUTHORITIES Blandin v. Bayport Condominium Association, Inc., et al., 988 So.2d 666, 670 (Fla. 4* DCA 2008)...6 Farmers Bank & Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923)...3, 4, 7 Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3'd DCA 1986)...3, 4, 7 Stetson v. Fiddler's, 18 So.3d 717 (Fla. 2nd DCA 2009)...6 STATUTES, ETC.: Art. V 3(b)(3) Fla. Const. (1980)...3 Fla. R. App (a)(2)(A)(iv)...3 Section , Fla. Stat. (2011)...2, 3, 5, 6, 7 111

4 STATEMENT OF THE CASE AND FACTS Petitioner filed a complaint for eviction (November 18, 2011) against Respondent Aleyda's Mexican Restaurante, Inc. (hereinafter "Aleyda").' Respondent answered the complaint, specifically contesting the rent due date.2 Respondent also counterclaimed on several counts.3 On January 6, 2012, Petitioner filed a motion for possession based on the January 2012 rent payment not being paid into the court's registry by January 1, But Petitioner had regularly accepted, without objection, rent payments after the first ofthe month. 4 On January 27, 2012 the trial judge denied Petitioner's motion for possession, and ordered Respondent to make her rent payment into the court registry beginning March 1, Respondent complied with this order. Petitioner then sought a writ of mandamus in the Fourth District Court of Appeal. The Fourth District opinion is as follows: Commercial landlord Palm Beach Marketplace, LLC, asks this court to compel the trial court to enter a default and writ of possession in its favor. We grant the petition because the tenant, Aleyda's I Aleyda was the respondent in the mandamus proceedings below. 2 While Aleyda contested the amount alleged in Petitioner's complaint, she nevertheless deposited the full amount claimed by Petitioner into the court's registry at the outset of the litigation. 3 Respondent's counterclaim included counts for retaliatory eviction; tortious interference with a business relationship; breach of covenant of good faith and fair dealing; wrongful eviction; violation of Florida's unfair and deceptive trade practices act; fraud; and breach of the lease. 4 Petitioner had purchased the shopping center in June 2011 and adhered to the same "twice a month" payment schedule which had been followed by the previous owner for almost two years. 1

5 Mexican Restaurante, Inc., failed to comply with the statutory requirements of section , Florida Statutes. We recognize the tenant's dispute about when the rental payment was due; however, the landlord pointed to the terms of the lease which provide for payment to be made on the first of the month despite any course of conduct to the contrary. See (1)&(5), Fla. Stat. (2011); Park Adult Residential Fac., Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010): 214 Main St. Corp. v. Tanksley, 947 So. 2d 490 (Fla. 2d DCA 2006). As the landlord demonstrates, the trial court has a ministerial duty to provide the remedies set forth in the statute. See Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp., 45 So. 3d 37 (Fla. 4th DCA 2010). See also Famsun Invest, LLC v. Therault, 95 So. 3d 961 (Fla. 4th DCA 2012): DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785 (Fla. 3d DCA 2011). While we grant the mandamus petition, as in Poal, we withhold the issuance of the writ, as we are assured that the trial court will act in accordance with this opinion and issue the writ of possession to the landlord. Also as this court pointed out in Poal, the landlord is entitled to a default for possession in accordance with section (5), not disbursement of the deposited funds. 45 So. 3d at 39 (citing Premici v. United Growth Props., L.P., 648 So. 2d 1241 (Fla. 5th DCA 1995)). (e.s.) Petitionfor writ ofmandamus is granted. Thereafter, Respondent filed a Motion for Rehearing and Rehearing En Banc, and a Motion to Certify Issues to the Supreme Court. All motions were denied. SUMMARY OF THE ARGUMENT The Fourth District granted Petitioner's request for a writ of mandamus under Section , Florida Statutes - ruling that the trial judge had no 2

6 discretion to deny the writ of possession requested by Petitioner. The Fourth reasoned as follows: We recognize the tenant's dispute about when the rental payment was due; however, the landlord pointed to the terms of the lease which provide for payment to be made on the first of the month despite any course of conduct to the contrary.... But the Third District Court of Appeal, in Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3'd DCA 1986) has ruled that an anti-waiver provision in a lease can be waived by a lessor party's actions. Note that in so ruling, the Third District had relied on this Court's prior decision in Farmers Bank & Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923). Section , Florida Statutes, does not create any exception to this established principle. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of a District Court of Appeal or the Supreme Court on the same point of law. Art. V 3(b)(3) Fla. Const. (1980); Fla. R. App (a)(2)(A)(iv). 3

7 ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN PROTEAN INVESTORS, INC. V. TRAVEL, ETC., INC., 499 SO.2D 49 (FLA. 3" DCA 1986). Respondent is seeking to invoke the discretionary jurisdiction of the Florida Supreme Court on the basis that Respondent believes the court's opinion is in direct conflict with the Third District's opinion in Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3'd DCA 1986). In Protean, the Third District recognized that a landlord can waive application of a non-waiver clause in a lease. In Protean, the appellate court, citing the Florida Supreme Court's decision in Farmers Bank & Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923), infra, held: We conclude that, notwithstanding the presence of an anti-waiver provision in the subject lease, the defendant lessor [Protean Investors, Inc.] is estopped to claim that the plaintiff lessee [Travel, Etc., Inc.] was in default of the subject lease due to certain late rental payments made thereunder, and therefore had forfeited the right of first refusal under the lease. This is so because the lessor defendant [Protean, Investors, Inc.] (a) accepted all the late rental payments without protest, and (b) never at any time notified the plaintiff lessee [Travel, Etc., Inc.] that it was in default of the lease and that the right of first refusal had thus been forfeited. See Farmers Bank & Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So.2d 795, 796 (Fla. 4th DCA 1971); Tropical Attractions, Inc. v. Coppinger, 187 So.2d 395, 396 (Fla. 3d DCA 1966); U.S. Properties, Inc. v. Marwin Corp., 123 So.2d 371, 376 (Fla. 3d DCA 1960)." In Farmer's Bank v. Palms, 86 Fla. 371, 98 So. 143, 144 (Fla. 1923), the Florida Supreme Court stated: 4

8 The lessor, by accepting the benefits of a lease... and by a course of conduct reasonably susceptible of a construction that he acquiesces... may be held to have waived the covenant and to be estopped from asserting a forfeiture because of its breach, is well established. Under the Third District decision, which relied on Florida Supreme precedent, a landlord can waive application of a non-waiver clause in a lease. Respondent believes these rulings conflict with the ruling in the panel's opinion: We recognize the tenant's dispute about when the rental payment was due; however, the landlord pointed to the terms of the lease which provide for payment to be made on the first of the month despite any course of conduct to the contrary. The Fourth District's ruling indicates that a non-waiver provision in a lease cannot be waived by conduct of a landlord. Respondent does not believe that the statute (Section , Florida Statutes) overturned these established rules of waiver and estoppel relied upon in the aforementioned cases. A landlord can waive a non-waiver provision in its lease through its actions. And a trial judge can rely on this waiver when applying Section (1), Florida Statutes. In fact, Section (1), Florida Statutes, gives a trial court discretion. Section (1), Florida Statutes, provides: In an action by the landlord which includes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Unless the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in 5

9 (e.s.) the complaint into the court registry on or before the date on which his or her answer to the claim for possession is due. If the tenant contests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination. The court may, however, extend these time periods to allow for later payment, upon good cause shown... In Blandin v. Bayport Condominium Association, Inc., et al., 988 So.2d 666, 670 (Fla. 4* DCA 2008), the Fourth District stated: The plain language of section contradicts Blandin's argument. Subsection (1) allows a court to extend "these time periods" stated in the plural (italics added here). Use of the plural means that subsection (1) refers not only to a possible extension for the payment due on "the day that the court makes its determination," but also to possible extensions for payment of "any rent accruing during the pendency of the action, when due..." Under the statutory language itself, as recognized in Blandin, a trial judge has discretion to extend the time for "any rent accruing during the pendency of the action, when due."5 5 Note that Section (5) must be read together with Section (1). Section (5) is dependent on the provisions outlined in Section (1) being adhered to. Section (5) is dependent on there being a court order issued pursuant to Section (1) which sets forth an initial payment date. Other district courts have applied subsection 5 only when there was an initial court order setting a due date. DTRS v. A.K. Gift Shop, 77 So.3d 785 (Fla. 3'd DCA 2011); 214 Main Street v. Tanksley, 947 So.2d 490 (Fla. 2"4 DCA 2006); Stetson v. Fiddler's, 18 So.3d 717 (Fla. 2"4 DCA 2009). The provisions of Section (5) were not triggered in this case because the trial court did not issue an order setting forth an initial payment date until January 27, 2012 (well after the filing of the motion for possession); Section (1) allows the trial court discretion to set the initial payment date; and Respondent has always complied with the trial court's order setting the initial payment date in this case. Respondent has never failed to timely pay rent pursuant to the court order; as such, the provisions of Section (5) were never triggered. 6

10 The decision of the Fourth District Court of Appeal is in conflict with the decision of the Third District in Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3'd DCA 1986), which in turn relied on this Court's prior decision in Farmers Bank & Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923) -- in that the Fourth District has ruled that an anti-waiver provision in a lease cannot be waived. That a party can waive an anti-waiver provision in a lease by prior actions is established by Protean and Farmer's and no exception to this principle has been established by Section , Florida Statutes. CONCLUSION Respondent requests this court to exercise its jurisdiction to consider the merits of Respondent's argument. Respondent genuinely believes that the Fourth District's decision conflicts with the precedent cited herein, and that the Fourth District has in fact created an exception to that precedent under Section , Florida Statutes. Note also that the legislative history to Section , Florida Statutes appears to recognize that a landlord can waive the right to exercise a non-waiver clause. That history cites to Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3'd DCA 1986) and recognizes that the landlord has to give notice to the lessee that he is exercising the non-waiver clause. 7

11 Je 'f r S. Carrol - Flori Bar Number: LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida (561) [Telephone] (561) [Facsimile] jc@loiscarroll.com Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Lawrence Duffy, Esquire, 4400 Northcorp Parkway, Palm Beach Gardens, FL and John H. Reynolds, Esquire, Reynolds & Reynolds, PL, 120 S. Olive Avenue, Suite 401, West Palm Beach, FL by U.S. Mail this 14* day of January, Je F1 da Bar Number: LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida (561) [Telephone] (561) [Facsimile] je@loiscarroll.com Attorney for Respondent 8

12 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font standards, i.e., Times New Roman 14-point font, as set forth in Florida Rule of Appellate Procedure 9.100(1) and 9.210(a)(2). Jem f r S. Carro 1 Florida Bar Number: LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida (561) [Telephone] (561) [Facsimile] ic@loiscarroll.com Attorney for Respondent CERTIFICATE OF COMPLIANCE WITH ADMINISTRATIVE ORDER AOO4-84 I hereby certify that I have complied with Administrative Order AOO4-84 in that a copy of Respondent's Jurisdictional Brief has been electronically submitted this 14* day of January, Jenni o Flori Bar Number: LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida (561) [Telephone] (561) [Facsimile] ic@lojscarroll.com Attorney for Respondent 9

13 uw omces OF JENNIFER S. CARROLL, P. A. 700 VILLAGE SQUARE CROSSING, SurrE 101 PALM BEACH GARDENS, FLORIDA JENNIFER S. CARRoLL NE: (561h Baani Cernfied Appellate Lawyer EACSÌMILE: (561) S:)scappealeaol.6om January 14, 2013 je.visearmn.com WEBSTTE: Florida Supreme Court Attn: Clerk's Office 500 South Duval Street Tallahassee, Florida VIA U.S. MAIL Scl3-SS Re: Palm Beach Marketplace, LLC v. Aleyda's Mexican Restaurante, Inc. L.T. Case No. 4D Ladies and Gentlemen: Enclosed for filing with the Florida Supreme Court are the following pleadings: 1. Jurisdictional Brief; and 2. Appendix to Jurisdictional Brief. Thank you for your assistance. Sincerely, JSC/cif Enclosures (as noted) Je nifer S. Carroll