Park Adult Residential Facility Inc v. Dan Designs Inc

• Decision Date: 26 May 2010
• Docket Number: No. 3D09-3235.,3D09-3235.
• Citation: 36 So.3d 811
• Parties: PARK ADULT RESIDENTIAL FACILITY, INC., Appellant,v.DAN DESIGNS, INC., etc., Appellee.
• Court: Florida District Court of Appeals

36 So.3d 811

PARK ADULT RESIDENTIAL FACILITY, INC., Appellant,v.DAN DESIGNS, INC., etc., Appellee.

No. 3D09-3235.

District Court of Appeal of Florida,

Third District.

May 26, 2010.

Michael I. Bernstein, for appellant.

Koch & Trushin, Bradley H. Trushin, Fort Lauderdale, and Marcus J. Susen, for appellee.

Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.

GERSTEN, J.

Park Adult Residential Facility, Inc. (“the landlord”) appeals from an order denying its motion for immediate default and issuance of writ of possession against Dan Designs, Inc., etc. (“the tenant”). We reverse.

The landlord sued the tenant for failure to pay rent due under the parties' lease agreement. Additionally, the landlord moved for an order directing the tenant to deposit the monthly rent into the court registry. Thereafter, the trial court ordered the tenant to deposit the rent into the court registry by November 3, 2009.

On November 4, 2009, the tenant attempted to deposit the ordered rent into the court registry, but the court clerk rejected the deposit as untimely. Subsequently, the landlord moved for an immediate default and writ of possession under section 83.232(5), Florida Statutes (2009).

Before the trial court ruled on the landlord's motion for immediate default and writ of possession, the tenant moved for an order allowing it to deposit the rent. The tenant claimed that it was unable to deposit the rent by November 3, 2009, because law enforcement closed the offices of tenant's attorneys, Rothstein Rosenfeldt Adler, P.A. The trial court denied the landlord's motion for default and immediate possession. This appeal followed.

On appeal, the landlord asserts that the trial court had no discretion under section 83.232(5) to deny an immediate default and writ of possession when the tenant failed to deposit rent timely into the court registry. The tenant contends that the trial court properly exercised its discretion in light of the unusual circumstances in this case. We agree with the landlord and reverse.

Section 83.232(5) provides: “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant's defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” Florida courts consistently have held that trial courts have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made. ¹See Kosoy Kendall Assocs., LLC v. Los Latinos Rest. Inc., 10 So.3d 1168 (Fla. 3d DCA 2009), and cases cited therein.

Here, the tenant failed to deposit the rent into the court registry on the date ordered. Regardless of the tenant's reason for failing to make the deposit, the trial court was statutorily required to enter an immediate default and writ of possession. Thus, in accordance with the law, the trial court erred in denying the landlord's motion for entry of a default and writ of possession.

Accordingly, we reverse the order entered below, and remand for entry of an immediate default and writ of possession in this case.

Reversed and remanded.

SCHWARTZ, Senior Judge, concurs.

COPE, J. (dissenting).

As the failure to make the payment was not the fault of the litigant, we should affirm the order now under review.

I.

This is a commercial eviction case in which Park Adult Residential Facility, Inc. is the landlord and Dan Designs, Inc. is the tenant. The property is located on Ocean Drive in Miami Beach. The tenant took possession in 2002.

In 2006, the parties renewed the lease for a five-year term. The tenant paid the landlord $150,000 upon the renewal for capital improvements and costs reimbursements.

In 2009, the landlord filed a complaint for eviction for nonpayment of rent for the month of September 2009. The landlord filed a motion for an order directing the tenant to deposit the monthly rent into the court registry.

On Thursday October 29, 2009, the court entered an agreed order directing the tenant to deposit the rent for September and October 2009 in the court registry within three days. This meant that the due date for the deposit was Tuesday November 3, 2009. See § 83.232(1), Fla. Stat. (2009).

Under the statute, there are drastic consequences if the court-ordered deadline is not met. “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant's defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” Id. § 83.232(5).

At the time the agreed order was entered, the tenant was represented by attorneys at the firm of Rothstein Rosenfeldt Adler (“RRA”) in Ft. Lauderdale, Florida. On Sunday November 1, federal authorities seized the law firm premises in connection with an alleged Ponzi scheme carried out by the law firm's senior partner, Scott W. Rothstein.^*

Turmoil at the law firm ensued. According to the attorneys, the firm no longer had an ability to issue trust account checks. It was therefore necessary for the tenant to obtain cashier's checks to deposit in the court registry.

On Monday November 2, the tenant obtained two official checks issued by Citibank, each in the amount of $21,400, for a total of $42,800. On November 3, the tenant provided these checks to counsel. Counsel arranged for one of the RRA law firm's in-house couriers to deliver the checks to the registry of the court in Miami.

The same day counsel served a notice of payment to the court registry and attached copies of the Citibank checks.

However, during the work day on November 3, the law firm employees were informed that they would no longer be paid. Many employees, including the one or ones responsible for delivering these checks, walked off the job. Accordingly the November 3 deadline passed without the checks being deposited in the registry of the court.

On November 4, counsel learned of the nondelivery of the checks. Counsel personally took the checks to the court registry in Miami on November 4 but the clerk refused to accept the checks because they were tendered a day late.

On November 9, the tenant filed a motion for the court to accept payment of the rent into the court registry. On November 19, the landlord filed an ex parte application for order of default and immediate possession.

After hearing argument, the court granted relief to the tenant, and authorized the tenant to deposit the past due rent into the court registry. The tenant did so. The landlord has appealed.

II.

I cannot agree with the assertion in the majority opinion that the trial court was without authority to grant relief. “Statutes should be construed in light of the manifest purpose to be achieved by the legislation.” Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926, 929 (Fla.1983). The purpose of this statute is to assure that the landlord will be paid for the rent which accrues during eviction litigation. The tenant acted in accordance with the statute. The tenant timely obtained bank checks totaling $42,800 and gave them to counsel for delivery to the registry of the court. Counsel gave the checks to a law firm employee who subsequently walked off the job without delivering the checks. Counsel personally took the checks to the court the next day, but the clerk refused to accept them.

The majority opinion relies on Kosoy Kendall Assocs., LLC v. Los Latinos Restaurant, Inc., 10 So.3d 1168 (Fla. 3d DCA 2009), but that case is not like this one. In that case the deadline was February 1, 2009. The landlord filed an ex parte motion for possession on February 2. The tenant tendered payment on February 5. In that case the defendant did not come up with the funds until after the court-ordered deadline. In this case...