Hornsleth v. McCloud

• Decision Date: 20 April 2022
• Docket Number: 2D21-2074
• Citation: Hornsleth v. McCloud, 337 So.3d 518 (Fla. App. 2022)
• Parties: Poul HORNSLETH a/k/a Poul Hornsleth, Jr., and April Caldwell Hornsleth, as Trustees of The Poul Hornsleth a/k/a Poul Hornsleth, Jr. and April Caldwell Hornsleth Revocable Living Trust, Petitioners, v. Javonta M. MCCLOUD, Respondent.
• Court: Florida District Court of Appeals

337 So.3d 518

Poul HORNSLETH a/k/a Poul Hornsleth, Jr., and April Caldwell Hornsleth, as Trustees of The Poul Hornsleth a/k/a Poul Hornsleth, Jr. and April Caldwell Hornsleth Revocable Living Trust, Petitioners,

v.Javonta M. MCCLOUD, Respondent.

No. 2D21-2074

District Court of Appeal of Florida, Second District.

April 20, 2022

Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg, for Petitioners.

No appearance for Respondent.

SMITH, Judge.

In the instant case, Poul Hornsleth a/k/a Poul Hornsleth, Jr., and April Caldwell Hornsleth, as trustees of The Poul Hornsleth a/k/a Poul Hornsleth, Jr. and April Caldwell Hornsleth Revocable Living Trust (the Hornsleths) seek a writ of mandamus declaring the Center for Disease Control's (CDC) moratorium on residential evictions to be unconstitutional and ordering the trial court to lift the stay on their eviction proceeding and to enter a writ of possession in their favor and against their tenant, Javonta M. McCloud. Because this reaches beyond a clear legal right to the performance of a clear legal and ministerial duty, mandamus is not the proper vehicle for the Hornsleths, and this court considers the petition as one for certiorari relief. See Cruz v. Cooperativa De Seguros Multiples De Puerto Rico, Inc. , 76 So. 3d 394, 395 (Fla. 2d DCA 2011) (reviewing nonfinal order denying motion to lift a stay by way of certiorari). Because the trial court did not depart from the essential requirements of the law in applying the law as it existed at the time of the order, we deny the petition.

In order to be entitled to certiorari relief a party "must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc. , 658 So. 2d 646, 648 (Fla. 2d DCA 1995) (citing Gulf Cities Gas Corp. v. Cihak , 201 So. 2d 250 (Fla. 2d DCA 1967) ).

On September 4, 2020, the CDC issued an order imposing a nationwide temporary federal moratorium on residential evictions for nonpayment of rent. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 , 85 FR 55292-01, 2020 WL 5253768 (Sept. 4, 2020). The moratorium neither relieved tenants of the obligation to pay rent nor prevented eviction of tenants for reasons other than for nonpayment of rent. Id . In the instant case, the Hornsleths seek to evict Ms. McCloud based solely upon her failure to pay rent—which is exactly what the CDC moratorium prevented. Had the Hornsleths sought to evict Ms. McCloud based on the expiration of the lease's term, the eviction would not have been subject to the CDC moratorium and the trial court's order denying the motion to lift the stay would have been a departure from the essential requirements of the law. See id. But while the Hornsleths alleged in their motion to lift the stay that the term of the lease had expired, they never sought leave to amend their complaint to seek eviction on those grounds. Therefore, at the time the order denying the motion to lift the stay was rendered, there was no departure from the essential requirements of the law.

We note that since the order denying the motion to lift the stay, the United States Supreme Court issued an opinion that effectively ended the...