LANDLORD/TENANT UPDATE
In Pusser’s Inc. v. THI Oceanfront L.P.1, the plaintiff had entered into an agreement to sell its restaurant and bar to a third party (the “Shore Restaurant Group”) and sought the defendant’s approval of the assignment of the lease. The defendant had orally approved the assignment to the Shore Restaurant Group and its intended modifications.
Thereafter, the defendant wrote that they had agreed to the lease assignment but conditioned it upon the plaintiff paying the defendant $300,000 and Shore Restaurant Group paying an additional security of $130,000 as well as a $200,000 increase in rent over the term of the lease.
As a consequence of the defendant’s demands, the deal between the plaintiff and Shore Restaurant Group was terminated since there was no profitable reason to proceed.
The plaintiff commenced an action for, inter alia, breach of contract after the defendant-landlord refused to consent to the assignment of the commercial lease to a third party. The defendant answered that under the terms of the lease, it had “sole and absolute discretion” to determine whether any assignment of the lease was acceptable and whether new terms were required. The plaintiff did not disagree but argued that the defendant had a statutory duty to act reasonably and in good faith in considering the request for assignment and, based upon that statutory duty, sought partial summary judgment as to defendant’s liability as a matter of law.
The Court agreed with the plaintiff that there are statutory and case-law proscribed duties which are placed upon the defendant in reviewing a request for assignment of lease. Such a request must be considered with good faith and if not it can be held as a breach of lease.
Despite the duty to act in good faith, the Court determined that there were issues of fact that prevented the award of summary judgment to the plaintiff on the issue of liability and that under the lease presented, the defendant did have deference in its decision to approve or disapprove the assignment.
In Forsythe v. Roth2, the plaintiff filed an eviction claim against the defendant on August 25 based on a Three-Day Notice which demanded $1,400 plus late charges for the unpaid rent since July 20. On September 20, the plaintiff’s counsel filed a Notice of Voluntary Dismissal. On September 14, counsel for defendant filed a Motion to Tax Costs Including Attorneys’ Fees and Defendant’s Motion to Abate any new tenant Eviction Action Based Upon or Including the Same Claim.
Defendant’s counsel faxed the foregoing motion papers to plaintiff’s counsel together with a letter advising that he would seek sanctions should plaintiff’s counsel or his client institute a new suit for tenant eviction based on or including the same claim.
The Court pointed out that Rule 1.420(d) provides for the awarding of Costs if a party who has once dismissed a claim in any court of this state commences another action based upon or including the same claim previously dismissed and also provides for a stay of the proceedings in the now action until the party seeking the affirmative relief has complied with the order.
Since a secondary action commenced by the plaintiff was based upon or included the same claim, the Court abated the second action until costs, including attorneys’ fees, were assessed and paid.
In Haige v. Schueder3, Schueder filed an eviction complaint against Haige. Haige filed an answer with affirmative defenses and a motion to dismiss. Prior to the hearing on the motion to dismiss, Haige moved out of the property resulting in Shueder filing a Notice of Voluntary Dismissal.
Thereafter, Haige filed a Motion to Tax Costs and Attorney’s Fees and the trial court awarded costs but declined to award attorney’s fees finding that attorney’s fees could not be considered “costs” since no judgment was entered. The sole issue for the appellate court was whether the trial court erred, as a matter of law, in finding that attorney’s fees were not an element of costs since a judgment or decree was not entered.
The Court pointed out that Haige was not a “prevailing party” in the proceedings below so he could not recover costs under F.S. §83.59(4). Rather, Haige could only recover attorney’s fees as an element of costs pursuant to Florida Rule of Civil Procedure, Rule 1.420(d), which provides that “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”
The trial court had denied the attorney’s fees application based on the language of Fla. Sta. §83.48, which states, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover costs, including attorney’s fees, from the non-prevailing party.” Because no judgment or decree had been rendered in Haige’s favor, the trial court refused to award attorney’s fees.
However, the Court held, since Fla. Sta. §83.48 defined the term “costs” to include attorneys fees, under Florida Rule of Civil Procedure, Rule 1.420(d), the trial court had no discretion but to award fees and Haige was entitled to recover his attorney’s fees because Fla. Sta. §83.48 defined costs to include fees even though no judgment had been rendered in his favor.
The Court pointed out that the use of the word “including” versus the word “and” was pivotal in the analysis inasmuch as previous cases made it clear that where a statute provided for the recovery of “attorney’s fees and court costs”, the statute had not defined costs to include attorney’s fees.
In Sailboat Bend Properties, LLC v. Wyant4, the plaintiff had commenced a residential eviction proceeding. The defendant filed his Motion to Dismiss Plaintiff’s Complaint for tenant Eviction Without Leave to Amend and Defendant’s Motion for Judgment on the Pleading.
The Defendant’s Motion was granted because the Three-Day Notice not only demanded rent not yet due but also violated the Federal and State Fair Debt Collection Practice Act by failing to give the thirty (30)-day validation period.
By virtue of the fatally defective Three-Day Notice, the plaintiff had failed to terminate the defendant’s rental agreement and, accordingly, the plaintiff had no cause of action at the time of the filing. Since an essential element of plaintiff’s cause of action was missing at the time of filing, the defendant was not required to pay rent into the Court Registry.
In Salic v. Padilla5, counsel for the defendant tenant had the tenant sign a retainer agreement which contained an assignment of attorney’s fees and authorized the Court to award the attorney’s fees directly in the name of the defendant’s counsel should the tenant prevail in the eviction action.
The Court approved the practice “as its promotes access to the Courts”, awarded defendant’s counsel his fees, which fees were to be recovered by him from the plaintiff, and granted defendant’s counsel execution therefor.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.
1 12 Fla. L. Weekly Supp. 360b (Fla. 17th Jud. Cir., Broward County Circuit Court, Dec. 15, 2004). 2 12 Fla. L. Weekly Supp. 175a (Fla. 17th Jud. Cir., Broward County Court, Sep. 23, 2004). 3 12 Fla. L. Weekly Supp. 196a (Fla. 6th Jud. Cir., Aug. 28, 2004). 4 12 Fla. L. Weekly Supp 258a (Fla. 17th Jud. Cir., Broward County Court, Oct. 2, 2004). 5 12 Fla. L. Weekly Supp. 259a (Fla. 17th Jud. Cir., Broward County Court, Oct. 20, 2004).