Baldwin Sod Farms, Inc. v. Corrigan, 99-1538.

• Decision Date: 15 December 1999
• Docket Number: No. 99-1538.,99-1538.
• Citation: 746 So.2d 1198
• Parties: BALDWIN SOD FARMS, INC., a foreign corporation, Appellant, v. Hugh D. CORRIGAN and James P. Corrigan, Jr., as Co-Trustees of the Patricia Corrigan Grantor Reserved Income Trust and the J. Pat Corrigan Grantor Reserved Income Trust, Appellees.
• Court: Florida District Court of Appeals

746 So.2d 1198

BALDWIN SOD FARMS, INC., a foreign corporation, Appellant, v. Hugh D. CORRIGAN and James P. Corrigan, Jr., as Co-Trustees of the Patricia Corrigan Grantor Reserved Income Trust and the J. Pat Corrigan Grantor Reserved Income Trust, Appellees.

No. 99-1538.

District Court of Appeal of Florida, Fourth District.

December 15, 1999.

Ira C. Hatch of Hatch & Doty, P.A., Vero Beach, for appellant.

Lewis W. Murphy Jr., Moss, Henderson, Blanton & Lanier, P.A., Vero Beach, for appellees.

PER CURIAM.

Baldwin Sod Farms, Inc. ("Baldwin") appeals an order evicting Baldwin and directing the clerk to issue a writ of possession to appellees, Hugh D. Corrigan and James P. Corrigan, Jr., as co-trustees of the Patricia Corrigan Grantor Reserved Income Trust and the J. Pat Corrigan Reserved Income Trust ("Corrigan"). Baldwin argues that the circuit court lacked subject matter jurisdiction over this eviction and erred in denying its demand for a jury trial. Appellant further argues that the appellees failed to properly serve the 3-day notice and give Baldwin thirty days to cure default, pursuant to the terms of the lease.

On February 27, 1996, Baldwin and Corrigan entered into an 8-year lease and option to purchase agreement whereby Baldwin would lease from Corrigan approximately 940 acres of land in Indian River County to be used exclusively as a sod farm. Under the agreement, Baldwin would plant, harvest, and sell the sod and make monthly payments to Corrigan, pursuant to a formula in the lease based on the amount of sod harvested. Baldwin was also required to pay a portion of the taxes on the land, obtain insurance, and provide a monthly accounting to Corrigan regarding the amount of sod harvested.

Paragraph 15 of the lease provided:

DEFAULT AND REMEDIES: Lessee shall be in default under this Lease if Lessee abandons or vacates the Lands prior to the expiration of any of them without the prior written consent of Lessor; or after fifteen (15) days written notice by Lessor to Lessee fails to pay the rental as it becomes due, or fails to timely cure any other term or condition of this Lease....

Paragraph 19 provided that:

[a]ny notice required to be given under this Agreement or by statute shall be deemed given by delivery of written notice in person or by U.S. Registered Mail to either party at the address given above, or to such other address as parties may designate in writing.

The address for Baldwin specified in the lease was: Duane V. Baldwin, c/o Baldwin Farms, Stockbridge, Michigan 49285.

Paragraph 30 provided:

MINIMUM RENT: If at any time after the year 1996, and throughout the period of time covered by this Agreement, should the amount of annual rent paid by Lessee to Lessor, as stipulated in Paragraph 3, drop below the rate of an average of $150.00 per year per acre of planted sod for any two calendar year period, this Agreement may be terminated after thirty (30) days written notice from Lessor to Lessee, with Lessee having the opportunity to cure the short fall by paying to Lessor the deficit during the thirty (30) day notice period....

In May or June 1998 Baldwin stopped paying rent to Corrigan. Apparently around the same time, Duane Baldwin passed away, and his son, Mark, took over the sod farm operations. On January 5, 1999, Corrigan's attorney sent a letter by certified mail (rather than registered mail) to Duane Baldwin at his home address, in Vero Beach, and a copy by regular mail to Baldwin Sod Farm, Inc.'s Stockbridge, Michigan address. The letter advised that there had been no rental payments nor reporting of sod sales since May 1998 and that Corrigan was "not sure how much sod has been harvested from August of 1998 to the end of the year but for the purpose of determining the rent, we are assuming that the minimum rent provisions of Section 30 of the Lease apply." The letter further advised that Baldwin owed Corrigan $98,923.54, representing the minimum rent due, the amount due for Bahia Sod, interest, and real property taxes. The letter advised Baldwin that "[u]nder Section 15 of the Lease, you have 15 days from the mailing of this letter within which to make payment.... Failure to make timely payment will constitute a default under the lease."

On January 18, 1999, Corrigan sent a follow-up letter by certified mail to Duane Baldwin at his home address, and by regular mail to Baldwin's Michigan address, advising that payment had not been made as requested in the January 5, 1999 letter and warning that, if payment was not made by January 20, 1999, Baldwin would be in default. The letter further advised that if payment was not made by January 20, 1999, "this letter shall serve as notice... to vacate the premises no later than... January 20, 1999."

Baldwin then filed for bankruptcy. Corrigan sought relief from the automatic stay provisions of 11 U.S.C. § 362(a). On April 2, 1999, the bankruptcy court granted relief from the automatic stay to allow Corrigan "to pursue all of their rights, in rem, with respect to the real property that is the subject of the Lease ...., including but not limited to eviction and repossession of the real property." Corrigan then filed suit in circuit court. However, because Baldwin was improperly served, the court granted Baldwin's motion to quash service of process on April 16, 1999.

On April 21, 1999, Corrigan attempted to serve a three-day notice letter under section 83.20, Florida Statutes, by hand delivery through a process server. The letter was addressed to Mark Baldwin and his wife at the sod farm address in Vero Beach. The process server was unable to locate Mark Baldwin and therefore posted the letter on the door of his home in Vero Beach and on a sign at the sod farm. Additionally, on that date, the process server personally served Mark Baldwin with a letter advising Baldwin that "[i]n accordance with Paragraph 15 of the Lease, and to the extent it applies, Section 83.20(3), Fla. Stat.," Baldwin was in default and had 15 days from delivery to cure the default. Corrigan then filed an amended complaint, which was served on Baldwin on April 27, 1999. The amended complaint set forth two counts: count I sought eviction, and count II sought a temporary injunction, alleging that Baldwin was removing sod and other unidentified personal property without payment to Corrigan, "resulting in irreparable injury and leaving CORRIGAN without an adequate remedy at law in that damages sustained cannot be calculated and/or verified due to BALDWIN SOD's removal." The complaint stated that the bankruptcy court had provided relief from the stay to allow Corrigan to seek in rem relief. Although the complaint did not seek damages, it referenced the exhibits to the complaint, which were letters setting forth the amounts claimed to be due to Corrigan. The ad damnum clause of count I requested, inter alia, that the court retain jurisdiction to determine damages sustained by Corrigan, including, but not limited to, double rental value under section 82.071, Florida Statutes.

On May 4, 1999, Baldwin filed and served its Answer, Affirmative Defenses, Defensive Motions, a Counterclaim for Betterment, and a Demand for Jury Trial. One of its affirmative defenses was that the circuit court lacked subject matter jurisdiction. On May 5, 1999, the court held a hearing on Baldwin's motion to dismiss for lack of subject matter jurisdiction. Baldwin argued that the case belonged in the county court because it was an eviction proceeding, that the amount in controversy did not exceed $15,000, and that Corrigan had not adequately pled a basis for injunctive relief. The court denied the motion to dismiss on the ground that the statutory 3-day notice, attached as Exhibit 5 to the complaint, demanded rent in excess of the jurisdictional amount and, alternatively, the allegations for injunctive relief sufficiently alleged irreparable harm and an inadequate remedy at law.

On May 6, 1999, the court held a non-jury trial on the eviction count and ordered that the counterclaim for betterment be considered at a later date. At the outset, Baldwin reminded the court that it had filed a demand for a jury trial and objected to proceeding without a jury. Baldwin said that it would pay any costs required by section 51.011, Florida Statutes (1997), in connection with its demand for a jury trial. Corrigan argued that Baldwin was not entitled to a jury trial, because eviction is a summary proceeding under section 51.011 and "an equitable relief proceeding" and that neither section 51.011 nor Chapter 83 of the Florida Statutes provides for a jury trial in an eviction proceeding. Corrigan argued further that Baldwin had failed to mention the jury trial issue when the parties appeared before the court the day before and that "this delay tactic should be denied." The court agreed that Baldwin was not entitled to a jury trial and tried the case without a jury.

During his testimony, Mark Baldwin acknowledged receiving, by certified mail, the January 5 and January 18, 1999 letters informing him he had 15 days to pay the amounts due. He also acknowledged receiving the April 21, 1999 3-day notice letter that the process server had posted on his front door and the other April 21, 1999 letter advising Baldwin that he had 15 days to cure default. Baldwin admitted that rent was not paid after June 1998. He testified that he had recently offered to pay, but Corrigan refused payment. Baldwin also testified that, contrary to Corrigan's allegation, Baldwin had made a monthly accounting of the sod harvested.

Hugh Corrigan testified that Baldwin had failed to pay rent or to account for sod after May 1998 and that Baldwin also had not paid the real property taxes. Corrigan also testified that the 15-day demand letter to Baldwin was based on ¶ 15 of the lease, providing for 15 days to cure default, and that he calculated the rent due by utilizing the minimum rent provisions of ¶ 30 of the lease.

The court found as...