G & G In-Between Bridge Club Corp. v. Palm Plaza Assocs.
| Decision Date | 08 February 2023 |
| Docket Number | 2D21-3402 |
| Court | Florida District Court of Appeals |
| Parties | G & G IN-BETWEEN BRIDGE CLUB CORPORATION, Appellant, v. PALM PLAZA ASSOCIATES, LTD., Appellee. |
Appeal from the Circuit Court for Sarasota County; Andrea McHugh Judge.
Susan J. Silverman, Sarasota, for Appellant.
Beverly A. Pohl and Danna Khawam, of Nelson Mullins Riley & Scarborough, LLP, Fort Lauderdale; Todd K. Norman of Nelson Mullins Riley & Scarborough, LLP, Orlando, for Appellee.
G & G In-Between Bridge Club Corporation (G & G), the operator of a bridge club located in a Sarasota shopping center, appeals the trial court's entry of summary judgment in favor of Palm Plaza Associates, Ltd., the landlord. We reverse in part and affirm in part.
The trial court ruled that G & G's written lease with Palm Plaza gave Palm Plaza the sole discretion to change the shopping center's parking rules even if those changes eliminated or severely restricted the ability of G & G's customers to park their cars. Because a reasonable trier of fact could find on this record that Palm Plaza's adoption of the amended parking rules was unreasonable under the contract, we conclude that the court erred in granting summary judgment in favor of Palm Plaza on the parties' respective claims for declaratory relief and on G & G's claim for breach of the covenant of quiet enjoyment. With respect to the court's entry of summary judgment in favor of Palm Plaza on G & G's claim for a violation of the Florida Deceptive and Unfair Trade Practices Act, § 501.204, Fla. Stat. (2019) (FDUTPA), we affirm without further discussion.
Factual background
When G & G began leasing its space in 2017, Palm Plaza's shopping center was largely vacant. Palm Plaza badly needed tenants and was largely indifferent to how the tenants at the time, including G & G, used the front and rear parking lots. As David Rosen, who negotiated the lease for Palm Plaza, put it, "[I]f you are that vacant, it really didn't make any difference."
When Palm Plaza signed the lease, it knew exactly what kind of business G & G planned to operate. Indeed, the lease states that G & G must use the space for the "operation of a Bridge Club, and for no other purpose." What Palm Plaza may or may not have fully appreciated at that time is that the typical round of bridge takes approximately three to four hours to play and that the typical player of bridge is a senior citizen.[1]
G & G leased the space because it was an ideal location for a bridge club. The space (previously used as a bingo parlor) is the only one in the shopping center with a back entrance appropriate for customer use.
During the first two years of the lease, G & G's customers were able to park immediately behind the bridge club in the rear lot and enter the club through the back entrance. This reduced G & G's use of the front lot. At that time, G & G customers could park in either the front or the rear lot without time limitations.
In August 2019, after the shopping center began to fill up and new and prospective tenants expressed concerns or preferences for parking, Palm Plaza first amended its parking rules. The amended rules directly conflicted with G & G's historic use of the parking lots. They prohibited G & G's customers from parking in the rear lot for any amount of time and further limited parking in the front lot to a maximum of two hours- insufficient time for G & G's customers to complete a round of bridge. Although Palm Plaza argues that it did not know G & G's full parking needs until after it had entered into the lease (a reasonable trier of fact could find otherwise on this record), Palm Plaza undoubtedly understood those needs before amending the parking rules in 2019.
G & G's owner, James Gordon, averred in his affidavit and confirmed at deposition that the 2019 parking rules immediately caused his customer count to go down, ultimately threatening the destruction of his business. According to Gordon, the bridge club was "the only tenant affected as their customers are in the location for more than 2 hours."
G & G promptly objected to the 2019 rule change in writing. Palm Plaza responded by filing an action for declaratory relief. Only after G & G filed its initial counterclaims seeking damages for breach of the lease did Palm Plaza propose any modification. By that time, however, G & G had already begun suffering harm.
The amended October 2020 parking rules continued to prohibit any customers from parking in the rear lot but modified the limitations in the front lot.[2] Specifically, Palm Plaza limited parking to two hours in the spaces fronting the stores and installed signage so indicating. Although parking was unrestricted in the far reaches of the front lot, Palm Plaza did not notify customers of that fact.[3]
Significantly, the record shows that in 2019, the management company requested Chad Ritchie, the president of Sarasota Security Patrol (the company that enforces parking restrictions at the shopping center), to propose a parking plan to include specific parking areas for employees and customers. Ritchie's proposal included setting aside 111 spaces in the rear lot for G & G's customers, which would have allowed G & G to take advantage of having a back entrance while minimizing its impact on the front lot. The record does not establish why Palm Plaza and the management company ultimately rejected this proposal. According to Ritchie, "I wasn't given any answers besides that they didn't like it."[4] Palm Plaza's architect, John Bernabeo, also made proposals that would have addressed G & G's parking needs. It is similarly unclear on this record why they were rejected.
The key lease provisions on parking
(Emphasis added.) That paragraph expressly identifies parking rules as an example of rules that Palm Plaza may adopt.
The lease undoubtedly gives Palm Plaza substantial discretion in formulating parking rules. Paragraph 7.03 permits Palm Plaza to make changes to the "nature" of the common areas (including parking) when those changes "in [Palm Plaza's] opinion are deemed to be desirable and for the best interest of all persons using the Common Area." Further, paragraph 7.05 gives Palm Plaza "the sole and exclusive control, management and direction of the Common Area."
In paragraph 20.01, however, Palm Plaza covenants to permit G & G to "peaceably and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord . . . subject, nevertheless, to the terms and conditions of this Lease."
The claims and summary judgment motions
Palm Plaza's complaint sought a declaration that the 2019 rules are consistent with the lease. At no time has Palm Plaza moved to amend its declaratory relief claim to include the 2020 rules.
G & G alleged fourteen affirmative defenses and three counterclaims. In its first count, G & G sought a declaration that the 2019 and 2020 parking rules were unreasonable and discriminated against it. G & G asked the trial court to declare that Palm Plaza had acted unreasonably in implementing both sets of parking rules. G & G also sought supplemental relief in the form of damages pursuant to section 86.061, Florida Statutes (2019), due to its loss of business and of a potential buyer for the club.
In count two, G & G sought damages against Palm Plaza under FDUTPA, alleging that Palm Plaza's actions were unfair, deceptive, and unconscionable acts or practices in the conduct of trade or commerce. In count three, G & G alleged that Palm Plaza breached the covenant of quiet enjoyment included in paragraph 20 of the lease, and it sought damages for that alleged breach.
Palm Plaza moved for summary judgment on both parties' claims and on all of G & G's affirmative defenses. The trial court granted Palm Plaza's motion in all respects. Principally, the court embraced Palm Plaza's argument that if G & G had wanted greater protections against an adverse change in parking rules, it should have negotiated for them and made them part of the lease:
[T]he Landlord had discretion to implement the parking rules at issue in this case and in exercising that authority, met the criteria of the Lease doing so in a reasonable, equal and non-discriminatory manner. Defendant [G & G] had the ability to negotiate for specific parking requirements and did not do so, thus the Court must enforce the contract as written . . . .
This court reviews de novo a trial court's grant of summary judgment. Volusia County v. Aberdeen at Ormond Beach L.P., 760 So.2d 126, 130 (Fla. 2000). A movant is entitled to summary judgment if no reasonable finder of fact could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We view the facts in the light most favorable to G & G and may not weigh the evidence or make credibility determinations. See Lewis v. City of Union City, 934 F.3d 1169, 1179 (11th Cir. 2019). In reviewing this case, we are mindful that commercial reasonableness is generally an issue of fact. See L.V. McClendon Kennels, Inc. v. Inv. Corp. of S. Fla., 490 So.2d 1374, 1376 (Fla. 3d DCA 1986) (); Roboserve, Inc. v. Kato...
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