K.D. Lewis Enterprises Corp., Inc. v. Smith, s. 82-1313

• Decision Date: 05 January 1984
• Docket Number: Nos. 82-1313,s. 82-1313
• Citation: 445 So.2d 1032
• Parties: K.D. LEWIS ENTERPRISES CORPORATION, INC., a Florida corporation, Appellant/Cross-Appellee, v. Edward SMITH, Lucy Lang and Mildred Williams, Appellees/Cross-Appellants. to 82-1315.
• Court: Florida District Court of Appeals

Page 1032

445 So.2d 1032

K.D. LEWIS ENTERPRISES CORPORATION, INC., a Florida corporation, Appellant/Cross-Appellee, v. Edward SMITH, Lucy Lang and Mildred Williams, Appellees/Cross-Appellants.

Nos. 82-1313 to 82-1315.

District Court of Appeal of Florida,

Fifth District.

Jan. 5, 1984.

Rehearing Denied Feb. 21, 1984.

William E. Weller of Rose & Weller, Cocoa Beach, for appellant/cross-appellee.

Judith E. Koons of Central Florida Legal Services, Inc., Cocoa, for appellees/cross-appellants.

James R. Grow and Richard E. Blumberg of The Nat. Housing Law Project, Berkeley, Cal., amicus curiae, on behalf of appellees/cross-appellants.

FRANK D. UPCHURCH, Jr., Judge.

K.D. Lewis Enterprises Corporation, Inc., the owner and landlord of an apartment complex in Brevard County, appeals from a judgment awarding compensatory and punitive damages to several of its tenants, the appellees, for negligence. The tenants cross-appeal contending that the court erred in directing a verdict on the remaining portions of their counterclaim and on other grounds.

The tenants withheld payment of rent claiming that the landlord did not maintain their apartments and that a rental increase was unfair. When the rent was not paid, the landlord brought an action to recover possession. The tenants counterclaimed for declaratory and injunctive relief and damages. The counterclaim included an action for breach of contract and an action in tort for breach of the landlord's duty to comply with applicable housing standards and housing codes, and breach of the duty of good faith in performance of the lease agreement.

The landlord moved to require the tenants to deposit the rent into the registry of the court pursuant to section 83.60(2), Florida Statutes (1981). When they failed to do so, the court issued writs of possession against Smith and Lang and entered a judgment of possession against Williams who had already vacated the premises.

The three cases were consolidated for the purpose of a joint trial. At a pre-trial conference, the court denied the landlord's motions to dismiss the counterclaim and for judgment on the pleadings. However, the landlord was permitted to raise, over objection, the affirmative defenses of recoupment for unpaid rent and waiver of damages prior to delivery of the tenants' notices of intention to withhold rent.

A jury trial was then held on the tenants' counterclaim. Following the tenants' case, counsel for the landlord moved for a directed verdict on the negligence and contract claims. After the landlord's case, the trial court directed a verdict against the landlord on the negligence claim and directed a verdict against the tenants on the other counts due to the court's belief that damages could not accrue until seven days after the tenants had delivered written notice of their intention to withhold rent. ¹

In light of the trial judge's rulings, the tenants took voluntary dismissals of the remaining counts of their counterclaim. Thus, only the issues of compensatory damages, punitive damages, and recoupment were submitted to the jury. Verdicts of compensatory damages for the tenants were entered in the amounts of $900 for Smith, $300 for Williams, and $900 for Lang. Punitive damages of $1,000, $400, and $1,100 were awarded to Smith, Williams, and Lang, respectively. The landlord was allowed recoupment of $900 against Smith, $300 against Williams, and $900 against Lang.

The first issue we consider is whether the court erred in refusing to permit the tenants to appear as representatives of a class composed of all the tenants in the complex. Florida Rule of Civil Procedure 1.220 establishes the prerequisites for class representation. When class representation is sought, the trial court must conclude that:

1. The members of the class are so numerous that separate joinder of each member is impracticable;

2. The claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class;

3. The claim or defense of the representative party is typical of the claim or defense of each member of the class;

4. The representative class can fairly and adequately protect and represent the interests of each member of the class.

Fla.R.Civ.P. 1.220(a).

Although class representation does not require an absolute identity of questions of law and fact among its members, issues such as involved here make probable substantially variable facts giving rise to different claims. While each tenant may have been affected by the omissions or non-compliance of the landlord, the extent, nature, and effect of such omission or non-compliance would unquestionably vary from apartment to apartment and from tenant to tenant. Therefore, we conclude that the trial court correctly refused to permit the tenants to appear as representatives of a class.

The next question is whether the trial court correctly issued the writs of possession. Resolution of this issue requires a consideration of section 83.60, Florida Statutes (1981):

Remedies; defenses to action for rent or possession; procedure.--

(1) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s.83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s.83.51(1) [F.S.1973], or may raise any other defense, whether legal or equitable, that he may have. The defense of a material noncompliance with s.83.51(1) [F.S.1973] may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord as prescribed in s.83.56(4) [F.S.1973], specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. A material noncompliance with s.83.51(1) [F.S.1973] by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s.83.51(1) [F.S.1973]. After consideration of all other relevant issues, the court shall enter appropriate judgment.

(2) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court, the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the tenant to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default.

Tenants Smith and Lang contend that they were entitled to stay in their apartments without paying rent and without depositing the rent into the registry of the court. The tenants argue that the requirement of a rent deposit under section 83.60 applies only to an action for possession and that it does not apply here because the action for possession was coupled with counterclaims for injunctive relief and damages. In other words, the tenants argue that if they affirmatively seek relief the requirement of deposit of rent is no longer required. We do not agree.

At oral argument, counsel for the tenants candidly conceded that had the tenants' suit proved to be without merit, a judgment for rent owed would have been valueless because they were "judgment proof." We believe the Legislature anticipated such an eventuality in drafting the statute. As now framed, the landlord may recover his rent should the tenants' suit have no legal basis. On the other hand, should the tenants' suit have merit, the rent is not lost to them. To follow the course suggested by the tenants would enable a devious tenant to live rent free during the litigation, if he could frame a legally sufficient pleading. We see no more reason to expect a landlord to continue furnishing housing without rent than to expect an oil supplier to continue furnishing oil without payment during a period of litigation. Therefore, we have concluded that the trial judge was correct in issuing the writs of possession upon the refusal of Smith and Lang to deposit rent as required by the statute.

By so holding, we do not mean to imply that by failing to deposit rent, a tenant's cause of action is lost to him. He loses only his right to retain possession of the premises if he fails to pay the rent to the landlord or into the registry of the court. Any cause of action against the landlord to which he may be otherwise entitled is still available to him.

The tenants attempted to support their position by citing Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975). In that case, the litigation arose from a lease agreement and option to purchase a home owned by the Geigers and leased to Freedman. Rent was not paid and the Geigers sought possession. Freedman counterclaimed contending that the home had not been completed and that the Geigers had not furnished a certificate of occupancy.

The trial court entered an order directing Freedman to place the back rent into the registry of the court in the sum of $7,200.00, and to pay into the registry of the court each monthly rental payment as it became due. Freedman complied with the order until October 1, 1974, when he failed to place the rent payment into the registry of the court. The Geigers then moved for a default but the motion was denied. On October 18, 1974, the Geigers again moved for default since a check dated October 7, 1974, had not cleared the bank and was returned to the court's registry. Freedman deposited a new check into the registry of ...