IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA PERRY TANKSLEY, Petitioner, vs. 214 MAIN STREET CORP. and 3B REALTY NORTH, INC., Sup. Ct. Case No: SC07-272 Second DCA Case No: 2D06-768 Respondents. *********************************/ PETITIONER S BRIEF ON JURISDICTION ON REVIEW FROM THE DISTRICT COURT OF APPEAL, SECOND DISTRICT JOHN S. JAFFER SUSAN J. SILVERMAN Fla. Bar No: 0188031 Fla. Bar No: 336467 27 S. Orange Avenue 3400 S. Tamiami Trail Suite 1 Second Floor Sarasota, Florida 34236 Sarasota, Florida 34239 Tel: (941) 955-5800 Tel: (941) 953-4812 Fax: (941) 955-7353 Fax: (941) 953-4284 Co-Counsel for Petitioner Co-Counsel for Petitioner

TABLE OF CONTENTS PAGE Table of Contents...... i - ii Table of Citations..... iii Introduction........ 1 Statement of the Case and Facts...2-3 Summary of Argument...3-4 Argument...4-9 Preliminary Argument......4-5 POINT I THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL WHICH HELD THAT SUBSTANTIAL, NOT PERFECT, COMPLIANCE WITH ORDERS REQUIRING RENT PAYMENTS TO BE MADE INTO THE COURT REGISTRY WAS SUFFICIENT TO AVOID A DEFAULT...5-8 POINT II THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS OF APPEAL WHICH HELD THAT DURING THE COURSE OF A LAWSUIT, THE TRIAL COURT HAS THE INHERENT AUTHORITY TO SET ASIDE INTERLOCUTORY ORDERS PRIOR TO ENTRY OF A FINAL JUDGMENT... 8-9 POINT III THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION FROM THIS COURT WHICH HELD THAT IN PROCEDURAL MATTERS, A RULE OF PROCEDURE PREVAILS OVER A STATUTE.. 9 i

TABLE OF CONTENTS (CONT D.) PAGE Conclusion.... 10 Certificate of Service...... 10 Certificate of Compliance... 10 ii

CASES TABLE OF CITATIONS PAGE Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)... Bettez v. City of Miami, 510 So.2d 1242 (Fla. 3d DCA 1987)... Duss v. Duss, 92 Fla. 1081, 111 So. 382 (Fla. 1926)... First Hanover v. Vazquez, 848 So.2d 1188 (Fla. 3d DCA 2003)... Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975)... Gibbs v. Ewing, 94 Fla. 236, 113 So. 730 (Fla. 1927)... Howarth v. City of Deland, 117 Fla. 692, 158 So. 294 (Fla. 1934)... K.D. Lewis Enterprises Corporation v. Smith, 445 So.2d 1032 (Fla.5 th DCA 1984) TGI Friday s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995)... Whitlock v. Drazinic, 622 So.d 142 (Fla. DCA 1993) OTHER AUTHORITIES. 7.. 4, 9... 4, 9.. 3, 5, 6, 7. 3, 5, 6, 7.. 4, 9... 7.. 3, 5, 6, 7... 4, 9. 4, 9 Fla. R. Civ. P. 1.500(2005)... Fla. R. Civ. P. 1.500(d)(2005)... Fla. R. Civ. P. 1.080(2005)... 83.232(5)(2005)... 83.60(2)(1974)... iii.. 4, 9... 4, 9.. 4, 9.. 4, 6, 9. 6

INTRODUCTION This Brief is filed on behalf of Petitioner, PERRY TANKSLEY, referred to herein as TANKSLEY, Petitioner, or Tenant. Respondents, 214 MAIN STREET CORP. and 3B REALTY NORTH, INC., will be referred to as Respondents, 214 and 3B, or Landlords. The Appendix to Petitioner s Brief on Jurisdiction will be referred to as (App.) followed by a document number. Unless otherwise indicated, all emphasis has been provided by counsel. as follows: STATEMENT OF THE CASE AND FACTS The pertinent facts, as recited in the Second District Court of Appeal s opinion, are This action arises out of a dispute over the terms of a lease agreement regarding commercial property in Sarasota. Tanksley leased the property in 2001. In 2005 Tanksley filed a Complaint for Declaratory Judgment seeking construction of the terms of the lease agreement. The Landlords filed a counterclaim for eviction and damages, including unpaid rent. The Landlords later filed a motion to require Tanksley to pay rent into the court registry. After a hearing on that motion, on July 15, 2005, the trial court entered an order requiring Tanksley to deposit $6128.24 into the court registry by July 20, 2005. The order further required Tanksley to pay rent that accrues during the pendency of this action into the court registry in the amount of $743.93 per month payable in advance on the first (1 ) day of each calendar month. st Tanksley deposited $6872.17 into the court registry on July 20, 2005, representing the initial $6128.24 plus $743.93 for August 2005 rent. Tanksley deposited $1487.86 into the court registry on September 8, 2005, which represented rent for September and October 2005. After Tanksley failed to pay the November rent into the court registry by the first of November, the Landlords filed on November 3, 2005, their Ex-Parte Motion for Default and Immediate Possession, citing section 83.232(5), Florida Statutes (2005). The motion was not served on Tanksley or Tanksley s attorney. 1

On November 9, 2005, the trial court, without giving prior notice to Tanksley, entered an Ex-Parte Order of Default for Immediate Possession, granting the Landlords motion and ordering the clerk to issue a writ of possession removing Tanksley from the leased premises. On November 14, 2005, the clerk of court issued a writ of possession, which was delivered by counsel for the Landlords to the Sarasota County Sheriff s Department. The order and the writ were sent to Tanksley and his attorney. Upon receipt of the order, Tanksley, on November 14, 2005, filed a Motion to Set Aside Default and Default Judgment. Tanksley asserted that after depositing two months rent in September, he had inadvertently marked his calendar to show the next deposit was due in December 2005 instead of November 2005. He requested the trial court to enter an order staying the writ of possession. The same day as the filing of Tanksley s motion to set aside default, on November 14, 2005, the trial court entered an Order Staying Writ of Possession, noting that Tanksley paid two months rent, for November and December 2005, into the court registry. The order stayed the writ until Tanksley s motion could be heard. Tanksley later filed an Amended Motion to Set Aside Default and Vacate Judgment; to Dissolve Writ of Possession; and for Sanctions. In his amended motion, he argued that the trial court s order should be vacated: (1) for lack of notice to him of the Landlords motion for default and immediate possession; (2) because waiver of defenses are extreme sanctions; (3) because Tanksley s failure to comply with the trial court s order was due to mistake, inadvertence, surprise, excusable neglect or the Landlords misconduct; and (4) because Tanksley had a meritorious defense to the Landlords claim for possession and damages. Tanksley also requested sanctions against the Landlords and their counsel. After a hearing, the trial court entered the Order Vacating and Setting Aside Default and Dissolving Writ of Possession, which is the subject of this appeal. The trial court determined that it had the discretion and authority to consider a meritorious argument concerning why the November payment was made later than the date provided in the court order. The trial court excused Tanksley from the requirement that the November rent be paid into the court registry on the first day of the month, and ordered that the default and the judgment for possession be set aside and the writ of possession be dissolved. The court denied Tanksley s request for 2

the imposition of sanctions. (App. 1). During the pendency of the appeal, Tanksley remained in possession of the property and paid rent into the court registry. On November 15, 2006, the Second District filed its opinion which reversed the trial court s Order and remanded for further proceedings, finding that the court had no authority to vacate the default whether or not it was the result of excusable neglect. TANKSLEY timely filed Motions for Rehearing, Rehearing En Banc and Certification. On January 19, 2007, the District Court denied the Motions. TANKSLEY filed a Motion to Stay Issuance of the Mandate which was denied by the District Court on February 9, 2007. On February 15, 2007, TANKSLEY filed an Emergency Motion in this Court for review of the Order Denying Motion to Stay Issuance of Mandate, which is still pending. TANKSLEY timely filed his Notice to Invoke the Discretionary Jurisdiction of this Court. SUMMARY OF ARGUMENT The Second District s decision expressly and directly conflicts with the opinions of the Third and Fifth District Courts of Appeal in Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975), K.D. Lewis Enterprises Corporation v. Smith, 445 So.2d 1032 (Fla. 5 DCA 1984), and First Hanover v. Vazquez, 848 So.2d th 1188 (Fla. 3d DCA 2003). (App. 2, 3, 4). Those opinions held that substantial compliance, as opposed to perfect compliance, by the Tenant with an order requiring payment of rent into the registry of the court was sufficient to avoid a default. 3

The decision also expressly and directly conflicts with the opinions of the Supreme Court in Gibbs v. Ewing, 94 Fla. 236, 113 So. 730 (Fla. 1927) and Duss v. Duss, 92 Fla. 1081, 111 So. 382 (Fla. 1926), and the Fifth and Third District Courts of Appeal in Whitlock v. Drazinic, 622 So.2d 142 (Fla. 5 DCA 1993) and th Bettez v. City of Miami, 510 So.2d 1242 (Fla. 3d DCA 1987), which recognize the trial court s well-established authority to reconsider an interlocutory order at any time prior to entry of a final judgment. (App. 5, 6, 7, 8). Finally, the decision expressly and directly conflicts with the opinion of the Supreme Court in TGI Friday s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995), which held that in procedural matters, a rule of procedure prevails over a statute. (App. 9). The District Court s decision failed to follow that precedent by necessarily holding that 83.232(5), Fla. Stat. (2005), a procedural statute, prevailed over Fla. R. Civ. P. 1.500, 1.080 and 1.500(d). The rules of procedure, respectively, require that notice of a motion for default must be given if a party has appeared and filed pleadings in the action, require service of every paper on each party in an action, and give the trial court authority to set aside a default. ARGUMENT Preliminary Argument This Court should exercise its discretion and accept jurisdiction in this case because the issues presented are of exceptional importance in light of the enormous amount of landlord tenant litigation in the County Courts statewide. Many of the cases involve orders to pay rent into the registry of the court. A 4

decision from this Court as to whether a trial court has the discretion to provide a tenant with an opportunity to come into substantial compliance with a courtordered payment schedule prior to the entry of a default will have a broad impact throughout the State of Florida. POINT I THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL WHICH HELD THAT SUBSTANTIAL, NOT PERFECT, COMPLIANCE WITH ORDERS REQUIRING RENT PAYMENTS TO BE MADE INTO THE COURT REGISTRY WAS SUFFICIENT TO AVOID A DEFAULT. The Second District Court of Appeal held that under 83.232(5), Fla. Stat., the trial court does not retain discretion to excuse late payment of rent into the court registry based on a finding of excusable neglect. This holding is in direct and irreconcilable conflict with Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975), and the cases which interpret it, K.D. Lewis Enterprises Corp. v. Smith, 445 So.2d 1032 (Fla. 5 DCA 1984) and First Hanover v. Vazquez, 848 So.2d th 1188 (Fla. 3d DCA 2003). In Freedman v. Geiger, an order was entered directing payment of rent into the registry of the court. The Tenant in Freedman failed to make one payment into the court registry and Landlord moved for a default. Prior to a hearing on the motion for default, the tenant deposited the funds into the registry of the court. The trial court issued the default anyway. On appeal, the Third District Court of Appeal reversed and set aside the default, finding the trial court abused its 5

discretion by granting the default. The appellate court relied on the Florida courts liberal policy of setting aside defaults to permit a trial on the merits. K.D. Lewis Enterprises Corp. v. Smith, 445 So.2d 1032 (Fla. 5 DCA th 1984), explained Freedman v. Geiger, supra, as follows: Id. at 1036. Freedman complied with the court order until the October payment was due. After his check for the October payment failed to clear, he deposited a new check into the court s registry. Thus, unlike the tenants here, Freedman was in substantial compliance with the court s order requiring payment of rent into the registry of the court. First Hanover v. Vazquez, 848 So.2d 1188 (Fla. 3d DCA 2003) also confirmed that Freedman v. Geiger correctly set aside the default because the tenants were in substantial compliance with the court ordered rental payments, particularly noting that the tenants had deposited additional sums into the registry prior to the hearing on the Landlord s motion for default. Although Freedman v. Geiger involved a residential tenant, and TANKSLEY is a commercial tenant, there is no material difference between 83.60(2), Fla. Stat. and 83.232(5), Fla. Stat. 83.60(2) provides that in the absence of payment, the landlord is entitled to immediate default judgment for removal of the tenant. 83.232(5) grants the landlord an immediate default for possession without using the term judgment. If there is a difference in meaning between the residential and commercial statutes, the residential section is harsher in its application against the tenant than the commercial section. Since both 6

statutes cover the same general field, courts should avoid a construction which places them in conflict. Howarth v. City of Deland, 117 Fla. 692, 158 So.2d 294 (Fla. 1934). One of the tests for conflict jurisdiction is whether the holdings of this case and those asserted to be in conflict are irreconcilable. If the court below reached the opposite result on controlling facts which, if not virtually identical, more strongly dictated the result reached by the alleged conflict case, a conflict of decisions exist that warrants accepting jurisdiction. Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006). In the present case, the controlling statutes would seem to be virtually identical. The commercial statute, by granting the landlord of the commercial tenant only an immediate default for possession rather than an immediate default judgment for removal as set forth in the residential statute, if anything, more strongly dictates the result in Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975), K.D.Lewis Enterprises Corporation v. Smith, 445 So.2d 1032 (Fla. 5 DCA 1984), and First Hanover v. Vazquez, 848 th So.2d 1188 (Fla. 3d DCA 2003). Contrary to the above-referenced decisions, the Second District refused to consider that TANKSLEY was in substantial compliance with the order requiring rental payments into the court registry. It also refused to consider that, aside from being tardy due to an inadvertent calendaring error, TANKSLEY had fully complied with the order to deposit rent in the registry before the hearing on the motion to set aside the default, and that the trial court found his tardiness to be the 7

result of, and to constitute, excusable neglect. It also failed to follow the established policy noted in the above decisions of liberality in setting aside defaults to permit a trial on the merits. In short, the District Court s decision is in express, direct and irreconcilable conflict with the above-cited cases, which hold that in making court-ordered payments into the court registry, a tenant must substantially, but not perfectly, comply. Where, as here, the tenant deposits rent prior to the landlords properly serving a motion for default, the trial court should deny the motion and vacate a default that was previously entered. Indeed, the record does not reflect that tenant was ever served with notice of the Ex Parte Motion for Default, even after serving the motion to vacate. To the contrary, he was alerted to its existence only upon the court s serving him with a copy of the order granting the Ex Parte Motion. POINT II THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS OF APPEAL WHICH HELD THAT DURING THE COURSE OF A LAWSUIT, THE TRIAL COURT HAS THE INHERENT AUTHORITY TO SET ASIDE INTERLOCUTORY ORDERS PRIOR TO ENTRY OF A FINAL JUDGMENT. The District Court s opinion results in a usurpation of the well-established authority of the trial court to revisit and set aside any prior interlocutory orders entered before a final judgment in the case is rendered. The trial court s decision to vacate the default and dissolve the writ of possession relied specifically on its authority and discretion to reconsider an interlocutory order at any time. The 8

opinion of the Court in the subject proceeding conflicts and is irreconcilable with Gibbs v. Ewing, 94 Fla. 236; 113 So. 730 (Fla. 1927); Duss v. Duss, 92 Fla. 1081, 111 So. 382 (Fla. 1926); Whitlock v. Drazinic, 622 So.2d 142 (Fla. 5 DCA 1993) th and Bettez v. City of Miami, 510 So.2d 1242 (Fla. 3d DCA 1987). These decisions state the well-settled rule that during the course of a lawsuit, the trial court always has the inherent authority to set aside or modify interlocutory orders prior to final judgment. POINT III THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION FROM THIS COURT WHICH HELD THAT IN PROCEDURAL MATTERS, A RULE OF PROCEDURE PREVAILS OVER A STATUTE. The District Court s opinion in this case conflicts with the long-standing case law that holds in procedural matters, a rule of procedure prevails over a statute. In TGI Friday s, Inc. v.dvorak, 663 So.2d 606 (Fla. 1995), the Florida Supreme Court relied on this rule in concluding that the procedural portions of the 1991 version of Fla. Stat. Sec. 768.79 were superseded by Fla. R. Civ. P. 1.442. In the present case, the Second District necessarily held that 83.232(5), Fla. Stat. (2005), a procedural statute, governs over Fla. R. Civ. P. 1.500, which provides that notice must be given of a motion for default if a party has appeared and filed pleadings in the action. This Court also necessarily held that the statute governs over Fla. R. Civ. P. 1.080 which requires service of every paper on each party in an action, and Fla. R. Civ. P. 1.500(d), which gives the trial court authority to set aside a default. 9

CONCLUSION Based upon the foregoing arguments and citations of authority, Petitioner, TANKSLEY, respectfully requests that this Court accept jurisdiction to review the decision of the Second District Court of Appeal in this case. CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that I have complied with the font standards required by Fla. R. App. P. 9.210(a)(2) for computer-generated briefs, by submitting this brief in Times New Roman 14-point font. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by facsimile and United States Mail, postage prepaid, to Adam Mohammadbhoy, Esq., Harllee & Bald, P.A., 202 Old Main Street, Bradenton, Florida 34205, on this 21 st day of February, 2007. /s/ /s/ JOHN S. JAFFER SUSAN J. SILVERMAN Fla. Bar No: 0188031 Fla. Bar No: 336467 27 S. Orange Avenue 3400 S. Tamiami Trail Suite 1 Second Floor Sarasota, Florida 34236 Sarasota, Florida 34239 Tel: (941) 955-5800 Tel: (941) 953-4812 Fax: (941) 955-7353 Fax: (941) 953-4284 Co-Counsel for Appellee/ Co-Counsel for Appellee/ Petitioner Petitioner 10