McCready v. Booth

• Decision Date: 20 May 1981
• Docket Number: No. 80-1003,80-1003
• Citation: 398 So.2d 1000
• Parties: James McCREADY, Appellant, v. Charles M. BOOTH, Jr., J. K. Higgins and Clarence A. Johnson, II, d/b/a The Villas Apartments and Insurance Company of North America, Appellees.
• Court: Florida District Court of Appeals

Page 1000

398 So.2d 1000

James McCREADY, Appellant, v. Charles M. BOOTH, Jr., J. K. Higgins and Clarence A. Johnson, II, d/b/a The Villas Apartments and Insurance Company of North America, Appellees.

No. 80-1003.

District Court of Appeal of Florida, Fifth District.

May 20, 1981.

Leslie King O'Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellant.

Walter A. Ketcham, Jr., of Walker & Buckmaster, P. A., Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellees.

COBB, Judge.

This is an appeal from summary judgment entered in favor of a landlord against a tenant, whose suit claimed that negligence in his eviction resulted in the loss of his personal property. We affirm.

James McCready entered into a written lease with the defendants Booth, Higgins and Johnson, d/b/a The Villas Apartments (hereinafter referred to as the Villas), for the one-year lease of an apartment beginning April 1, 1974. After that lease expired, McCready continued to occupy the apartment on a month-to-month basis. McCready's work required him to be out of town, and during the years 1974 through 1976 the resident manager at the Villas accepted several late rental payments from McCready, along with the payment of a late fee.

In August of 1977, the Villas got a new supervisor who strictly enforced the rental provisions of the leases. On August 12, 1977, McCready left town on a business trip and he deposited his August rent in the mail slot of the Villas' office, with a note explaining that he was going to be out of town until approximately November. The resident manager attempted to personally contact McCready by telephone, but could not locate him. On September 8, 1977, the Villas, through its resident manager, posted a notice to pay rent on McCready's apartment door. On September 13, 1977, the Villas filed an action for eviction against McCready. The summons for that eviction action was served by posting the process on McCready's apartment door. On September 23, 1977, a writ of possession was posted on McCready's apartment door. On September 26, 1977, a deputy sheriff removed all of McCready's furniture and possessions from his apartment and placed them at the edge of the street. Various passersby then proceeded to steal the possessions. In October, after the eviction had taken place, McCready sent a check to the Villas for the rent for September and October. There appears to be a dispute between McCready and the Villas as to whether the latter had storage space where it could reasonably have stored his possessions.

In his complaint, McCready alleged that the Villas unjustifiably evicted him because (1) it knew that McCready's work required him to be out of town and that he would pay his rent; and (2) it was negligent in failing to take care of McCready's possessions that the deputy sheriff moved outside at the time of the eviction. On appeal, McCready...