Commodore Plaza at Century 21 Condominium Ass'n, Inc. v. Cohen, s. 76-767

• Citation: 350 So.2d 502
• Decision Date: 20 September 1977
• Docket Number: Nos. 76-767,76-1225,77-536 and 77-538,76-1010,s. 76-767
• Parties: COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., et al., Appellants, v. Norman COHEN, Trustee, Appellee.
• Court: Court of Appeal of Florida (US)

Page 502

350 So.2d 502

COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., et al., Appellants, v. Norman COHEN, Trustee, Appellee.

Nos. 76-767, 76-1010, 76-1225, 77-536 and 77-538.

District Court of Appeal of Florida, Third District.

Sept. 20, 1977.

Rehearing Denied Oct. 25, 1977.

Joseph S. Paglino, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.

Frates, Floyd, Pearson, Stewart, Richman & Greer and Gerald F. Richman, Miami, for appellee.

Before BARKDULL, HAVERFIELD and NATHAN, JJ.

BARKDULL, Judge.

Commodore Plaza at Century 21 Condominium Association, Inc., defendant/counter-plaintiff/lessee in the trial court, appeals from 5 orders, all arising out of a single circuit court case between the parties.

On March 21, 1973, plaintiff (Norman Cohen, Trustee), the assignee-lessor of rights under a ninety-nine year lease which had previously been entered into between Saul J. Morgan, et al., as lessors, with the Association, as lessees, filed a complaint against the lessees for the appointment of a receiver, an injunction, punitive damages, and the recovery of lease rental payments due under the ninety-nine year lease between the parties, together with attorney fees and interest. The lease provided for rental payments of the recreational area of the condominium properties, at the rate of $19,620.00 per month. ¹ At the time of the filing of the complaint, it was alleged that the lessees were in default in the amount of $48,708.86. At the time of the filing of the complaint, the plaintiff sought the appointment of a receiver; in lieu of the appointment of a receiver, the trial court required the rental monies due from the Association to be deposited into the registry of the court. ²

During the course of the proceedings, the Association made a formal tender of possession of the leased premises to the owner/lessor, contending the .46% of an acre (which included a beach area which faced on Morgan Bay or Maule Lake) was unusable and constituted a public nuisance because the owner/lessor failed to obtain a permit for a bathing facility pursuant to Section 514.03, Florida Statutes (1973).

At trial, the lessor entered voluntary dismissals against certain of the individual defendants named in the complaint, and the trial court entered a directed verdict ³ on the lessor's claim for rentals due under the lease, except for those rental monies covered by an escalation clause of the lease. The case then went to a jury on a special interrogatory for a determination of whether or not the bathing beach was a nuisance in fact. The jury found a nuisance in fact did not exist. On April 8, 1976, the trial court entered a final judgment, ⁴ wherein the court determined that the Association was obligated to lessor in the sum of $887,784.72, of which $140,179.17 was due to an escalation clause or cost-of-living clause, that sum to be withheld pending a decision on that question in a cause then pending in the Supreme Court of Florida. The court ordered the Association to pay lessor $747,605.57; the court further ordered that the $140,179.17 be placed in an interest-bearing bank account.

Thereafter, a hearing was held on the question of costs and interest. On May 11, 1976, after hearing, the trial court entered an order and final judgment on costs and interest. ⁵ The court determined that the Association was indebted to the lessor in the sum of $86,600.70 as interest and court costs. Of this sum, $77,908.00 was allocated as interest and the balance of $7,698.90 as costs. The court offset the sum of $658.36 as costs taxed in favor of the individual defendants who had been dismissed by the lessor, and entered a total cost judgment for lessor in the sum of $84,942.34.

At another hearing held on June 15, 1976 on the question of attorney's fees, the trial court entered an order dated June 17, 1976, awarding fees of $155,000.00 to the lessor's attorneys. ⁶

On December 29, 1976, the lessor filed "Motion for Distribution of Monies in Accordance With Final Judgment and Supreme Court Decision", ⁷ requesting that the leasehold rentals that were attributable to the escalation clause of the lease, plus all of the monies that have been deposited in the interest-bearing account pursuant to stipulation, be distributed to the lessor, Norman Cohen, Trustee. On February 22, 1977, the trial court entered an order on distribution of monies pursuant to the final judgment and Supreme Court decision. ⁸ The court awarded the sum of $271,596.62 to the lessor, representing the sums due under the lease through February 10, 1977. Thereafter, on March 10, 1977, the trial court entered final judgment on the amount found to be owing in the previous order on distribution. ⁹ The trial court ordered the Association to pay to the lessor, Norman Cohen, Trustee, the sum of $271,596.62.

This court ordered that all of the appellate cases be consolidated for all appellate purposes.

APPELLATE CASE NO. 76-767

In support of this appeal, the appellant contends that upon showing the appellee had failed to obtain a permit pursuant to Section 514.03, Florida Statutes (1973), the operation of the beach in the instant case became a nuisance as a matter of law (pursuant to the terms of Section 514.06, Florida Statutes (1973)), to be decided by the trial court, not the jury. The appellant further contends that by virtue of said nuisance there was a constructive eviction as to at least a portion of the demised premises and it was therefore error to fail to abate a portion of the rental attributable to that eviction. We find these points to be without merit.

There was substantial competent evidence before the jury upon which it could have determined that use of the demised premises did not constitute a nuisance in fact. Thus, there must be a showing in the instant case that the appellee violated one of the provisions of Ch. 514, Florida Statutes (1973), in order to impose the sanctions provided for by Section 514.06, Florida Statutes (1973). The appellant presupposes, by its argument, that the appellee must have a permit and, therefore, is in violation of Ch. 514, Florida Statutes (1973). The appellee, on the other hand, has alleged that in cases such as the instant case, where uncontrolled waters are involved, the State agency charged with enforcement of Ch. 514, Florida Statutes (1973) does not issue permits. Therefore, a question of fact was raised as to necessity that the appellee herein obtain a permit pursuant to Section 514.03, Florida Statutes (1973). The jury, by its verdict, impliedly found in favor of the appellee on this question and, inasmuch as the record contains substantial competent evidence to support such a finding, we will not disturb that verdict. South American Fire Insurance Company v. Maxwell, 274 So.2d 579 (Fla. 3rd D.C.A. 1973); Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st D.C.A. 1975). Furthermore, in reviewing the record before us we find that the trial judge at pre-trial conference, held February 27, 1976, stated:

" * * * the court has determined that failure to obtain a permit to construct a beach is not a defense to payment of the rents due under the lease. * * * "

Thus, the appellant has at least had a determination as a matter of law of a portion of its point on appeal.

APPELLATE CASES NOS. 76-1010 and 76-1225

By these appeals, the appellant seeks review of the propriety of the trial court's award of interest to the appellee and the award of attorney fees, entered by the trial court in the appellee's favor. As our decision thereon is based on the same theories of law, we shall discuss both these cases simultaneously.

In the instant cases, the trial court (subsequent to the entry of the jury verdict and the entry of the final judgment) held a hearing on the question of costs, after which he awarded interest to the appellee on the final judgment. Another post-judgment hearing resulted in the appellee being awarded attorney fees.

In actions at law, interest and attorney fees are properly recoverable as a part of damages in a breach of contract case and, as such, are to be determined by the jury where a case is tried by a jury. Wabash Fire and Casualty Company v. Holloway, 139 So.2d 145 (Fla. 3rd D.C.A. 1962); Riess v. Goldman, 196 So.2d 184 (Fla. 3rd D.C.A. 1967); Grayson v. Fishlove, 266 So.2d 38 (Fla. 3rd D.C.A. 1972); Franklin v. Boyd, 272 So.2d 191 (Fla. 3rd D.C.A. 1972); Schulman v. Cort Aviation Corporation, 330 So.2d 114 (Fla. 3rd D.C.A. 1976); Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2nd D.C.A. 1976); 18A Fla.Jur., Interest, § 18. Where the jury, in its verdict, fails to allow or indicate a desire to allow interest and/or attorney fees, there is no authority for the trial judge to assess interest over and above the jury verdict. Wabash Fire and Casualty Company v. Holloway, supra; Riess v. Goldman, supra; Grayson v. Fishlove, supra; Franklin v. Boyd, supra; Schulman v. Cort Aviation Corporation, supra; Newcombe v. South Florida Business Negotiators, Inc., supra; 18A Fla.Jur., Interest, § 18.

Prior to the trial of this cause, the appellant insisted upon its right to trial by jury of all issues raised by the pleadings. Notwithstanding this demand, the trial court determined to submit the cause to the jury on special interrogatories. Both sides were requested to submit interrogatories they desired to be submitted to the jury for its determination. The appellee failed to submit any interrogatories pertaining to interest and/or attorney fees, and there was no evidence before the jury upon which it could determine those issues. After a conference on the issues to be submitted to the jury, the cause was sent to the jury on an interrogatory to primarily determine whether or not the leased premises constituted a nuisance. Failure of the appellee to present these questions as to interest and/or attorney fees by special interrogatory in an action at law would constitute a waiver...