Bre Mariner Marco Town Ctr., LLC v. Zoom Tan, Inc.
| Decision Date | 28 April 2016 |
| Docket Number | Case No: 2:15-cv-284-FtM-29CM |
| Parties | BRE MARINER MARCO TOWN CENTER, LLC, a Delaware limited liability company, Plaintiff, v. ZOOM TAN, INC., a Florida corporation, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on cross Motions for Summary Judgment (Docs. ##45, 46), both filed on December 29, 2015. Responses (Docs. ##49, 52) were filed on January 11, 2016 and January 12, 2016, respectively.1 The Court's jurisdiction is premised upon complete diversity of citizenship. (Doc. #68.)
Plaintiff is a landlord who seeks damages because its tenant failed to pay rent and other amounts due pursuant to a written rental agreement. The defendant-tenant asserts a variety of affirmative defenses which, it asserts, justified its non-payment.For the reasons set forth below, plaintiff's summary judgment motion is granted and defendant's summary judgment motion is denied.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Baby Buddies, Inc. v. Toys "R" Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is "material" if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A court must decide 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, "if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment."St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
The undisputed material facts are as follows: Bre Mariner Marco Town Center, LLC ("BRE" or "plaintiff" or "landlord") owns property known as the Marco Town Center, a shopping center on Marco Island, Florida. Zoom Tan, Inc. ("Zoom Tan" or "defendant" or "tenant") operates and maintains tanning salons in multiple states. (Doc. #23, ¶ 5; Doc. #25, ¶ 5.) In January of 2013, Zoom Tan was negotiating leases at five separate locations with Brixmor Property Group, Inc., an entity related to plaintiff. As relevant to this case, Zoom Tan approached the landlord about leasing Store #9, Building Unit 612401, Marco Town Center, 1017 N. Collier Blvd., Marco Island, Florida 34145 ("the Demised Premises," "Premises," or "Property") to use as a tanning salon. (Doc. #45, ¶ 15; Doc.#46, ¶ 2; Doc. #49, ¶ 15.) Zoom Tan knew the Premises was occupied by an existing tenant (Doc. #45, ¶ 16; Doc. #49, ¶ 16) whose lease would not be renewed if Zoom Tan obtained a lease agreement.
On March 22, 2013, the parties entered into a 75-page lease agreement by which the landlord rented the Premises to Zoom Tan for a 60 month term (the "Lease Agreement"). (Doc. #45, ¶ 18; Doc. #45-1, pp. 8-58; Doc. #46-1, pp. 57-115.) Plaintiff's prior tenant still occupied the Property at the time, and continued to do so until about July 27, 2013. (Doc. #45, ¶¶ 22-24; Doc. #49, ¶ 22.)
On August 5, 2013, Zoom Tan submitted a Commercial Addition/Alteration Building Permit Application (Application) to the City of Marco Island in order to commence its improvements to the Premises. (Doc. #45, ¶ 30; Doc. #45-1, pp. 67-70; Doc. #46-1, pp. 116-19; Doc. #49, ¶ 30.)
On August 6, 2013, BRE gave notice to Zoom Tan that it was tendering possession of the Premises to Zoom Tan as of August 7, 2013. (Doc. #45-1, p. 72; Doc. #46-1, p. 120.) Under the terms of the Lease Agreement, Zoom Tan was required to take possession of the Premises on this date (Section 1.01 "Possession Date" definition2), and the term of the Lease Agreement began 90 daysthereafter (Section 1.10, "Commencement Date" definition3). From the date the Landlord made the Premises available to Zoom Tan (August 7, 2013), Zoom Tan was required to comply with all governmental laws, orders and regulations affecting the Premises at its own expense. Section 6.04, Lease Agreement.4
On August 30, 2013, Zoom Tan's Application was denied by the City of Marco Island. (Doc. #45-1, p. 74; Doc. #46-1, p. 121.) The reason provided for the denial was that "the use [Zoom Tan] plan[s] to operate at the above-mentioned address is not permitted in the city's C-4 zoning code." (Id.) The City of Marco Island's Zoning Regulations do not explicitly prohibit tanning salonswithin the C-4 zoning district (Doc. #46, ¶ 26; Doc. #51), and Zoom Tan was aware that another tanning salon across the street from its unit was also within the C-4 zoning code. Zoom Tan took no formal steps to challenge the City's denial. Upon notification that the intended use of the Premises was in violation of the zoning regulations, Zoom Tan notified BRE. (Doc. #46, p. 147.) Zoom Tan did not take possession of the Premises, nor did Zoom Tan pay the rent or other amounts due under the Lease Agreement. (Doc. #45, ¶ 37; Doc. #46, ¶ 17.) In response to the non-payment of rent, BRE elected to invoke an acceleration clause, treating certain rent as immediately due and payable (Doc. #45, ¶ 38; Doc. #49, ¶ 38), and sent Zoom Tan a Notice of Monetary Default. (Doc. #46-1, p. 122.)
The operative pleading is the Amended Complaint (Doc. #23), which asserts one count against Zoom Tan for breach of the Lease Agreement. (Id.) The Amended Complaint identifies three defaults under the Lease Agreement ("failure to obtain all necessary permits or approvals, open for business, and pay rent and other charges due under the Lease"). (Id. ¶ 31.) The breach of contract count then identifies one of these as the basis for the claim, i.e., "Zoom Tan has not paid to Landlord the amounts due and owing Landlord under the Lease." (Id. ¶ 35.) The Answer asserted that Zoom Tan was not obligated to pay the amounts due and owing to BREunder the Lease Agreement (Doc. #25, ¶ 35), and asserted fourteen (14) affirmative defenses, (id. at 4-7).
BRE moves for summary judgment on its claim and each of Zoom Tan's remaining affirmative defenses.5 (Doc. #45.) Zoom Tan moves for summary judgment as to its affirmative defenses of lack and failure of consideration, frustration of purpose, impossibility, and illegality.6 (Doc. #46.)
The record is undisputed that the parties entered into the Lease Agreement, and that Zoom Tan agreed to pay certain rent and other amounts but failed to do so, resulting in damage to plaintiff. Absent a valid excuse for non-payment or a valid affirmative defense, Zoom Tan is liable to plaintiff.
Section 1.01 of the Lease Agreement provides that Zoom Tan would use and operate the Premises solely for the purpose of a tanning salon and the incidental retail sale of related tanningproducts.7 Zoom Tan was required to continuously operate and keep its business open to the public at the Premises for a minimum of 70 hours per week. Lease Agreement, Section 5.05(a), (b). Section 5.01(a) of the Lease Agreement provided that this "Permitted Use" was required to be "in full compliance with all governmental rules, regulations and requirements including, without limitation, obtaining and maintaining any and all licenses, permits and approvals necessary for the operation of Tenant's business at the Demised Premises."8 Additionally, Section 5.01(b) of the LeaseAgreement provides that the Permitted Use allowed by the Lease Agreement "shall not be deemed or construed to constitute a representation or warranty by Landlord that such business may be conducted in the Demised Premises, or is lawful or permissible under the certificate of occupancy, if any, issued for the building of which the Demised Premises forms a part, or is otherwise permitted by law."9
Section 21.01 of the Lease Agreement identified several "Event[s] of Default," the occurrence of which provided the Landlord with certain remedies as set forth in Section 21.02. Included as an Event of Default was non-payment of rent or other monetary amount due under the Lease Agreement within fifteen days after its due date, Section 21.01(a),10 and failure to cure a non-monetary violation of the Lease Agreement, Section 21.01(b).11 Additionally, it was an Event of Default if Zoom Tan closed for business "for more than one (1) day during any Lease Year, or for more than three (3) days in the aggregate during the Lease Term, when required by this Lease to be open or if Tenant shall abandon or vacate the Demised Premises." Section 21.01(e).12 Further, it was an Event of Default for Zoom Tan to fail "take possession ofthe Demised Premises on the Possession Date," or to fail to "have opened for business on the Commencement Date shall be considered for the purposes hereof to be an abandonment of the Demised Premises by the Tenant and an Event of Default."13
The Landlord is provided...
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