Naples Estates Ltd. P'ship v. Muston

• Decision Date: 10 September 2021
• Docket Number: 2D20-1352
• Parties: NAPLES ESTATES LIMITED PARTNERSHIP, Appellant, v. PAMELA MUSTON; WILLIAM BAILIE; and UNKNOWN/UNAUTHORIZED OCCUPANT(S), Appellees.
• Court: Florida District Court of Appeals

NAPLES ESTATES LIMITED PARTNERSHIP, Appellant, v. PAMELA MUSTON; WILLIAM BAILIE; and UNKNOWN/UNAUTHORIZED OCCUPANT(S), Appellees.

No. 2D20-1352

Florida Court of Appeals, Second District

September 10, 2021

Appeal from the Circuit Court for Collier County; Joseph G. Foster Judge.

Jody B. Gabel and J. Allen Bobo of Lutz, Bobo & Telfair, P.A. Sarasota, for Appellant.

Donald E. Christopher of Baker Donelson Bearman Caldwell &amp Berkowitz, PC, Orlando, for Appellees Pamela Muston and William Bailie.

No appearance for remaining Appellees.

ATKINSON, Judge.

Naples Estates Limited Partnership (Naples Estates) appeals the amount of damages it was awarded in a second amended final judgment of damages (the Judgment) entered in its favor against Pamela Muston and William Bailie, mobile park home owners (Home Owners), who elected to continue to pay the original amount of rent notwithstanding an order entered in another case to which they were not named parties. That order (the Rent Order) stated in pertinent part:

1. During the pendency of this action, some homeowners of Naples Estates Mobile Home Park ("Participating Homeowners") represented by Naples Estates Homeowners Association, Inc. (the "Association") have contested the lot rental amount charged by Naples Estates Limited Partnership ("Owner") and have refused to pay a portion of each Participating Homeowner's monthly lot rental amount as defined in Section 723.003(2), Florida Statutes. The disputed rents are the difference between what a Participating Homeowner has paid monthly since May 1, 2007 and six hundred dollars ($600) per lot per month for standard lots and six hundred ten dollars ($610) per lot per month for premium lots (the "Disputed Funds")....

3. Each Participating Homeowner shall pay their portion of the Disputed Funds into the Court Registry on or before 09 September 2013. Time is of the essence. A failure to timely deposit all Disputed Funds shall be deemed a default of this order.

4. Any Participating Homeowner in default of this order shall not be eligible for membership in any putative class which may be approved in this action; shall be subject to eviction pursuant to the proceedings set forth in Section 723.061 Florida Statutes; and shall be deemed to have waived any defenses, other than payment, in any eviction action based upon such default as set forth in Section 723.062(2), Florida Statutes.

In compliance with paragraph 3 of the order, on September 9, 2013, the Home Owners made an initial payment into the registry of $8, 645.76-the difference between $600 per month and what they had paid per month from May 1, 2007, to September 1, 2013. However, they then continued to pay the amount that she contended was due, as opposed to the $600 per month that Naples Estates claimed they owed, which Naples Estates accepted until October 1, 2015.

On October 28, 2015, Naples Estates sued the Home Owners for eviction and damages (eviction action). Prior to instituting the suit, Naples Estates mailed the Home Owners a letter pursuant to section 723.061(1)(a), Florida Statutes (2015), demanding that they remit $4, 569.73 for the difference between what they paid during the preceding twenty-four months and the $600 per month that Naples Estates stated they owed.

Pursuant to an order entered by the court in the eviction action, the Home Owners deposited $11, 169.73 into the court registry, representing the total amount in Naples Estates' demand letter plus monthly rent of $600 from the date of the filing of the complaint through August 31, 2016. The court indicated that it would reserve ruling on the issue of whether Naples Estates "waived the right to collect rents for all months prior to filing the Complaint in which Defendants tendered a rental payment to Plaintiff that Plaintiff accepted without objection or exception." The court further indicated that it would return a portion of the funds deposited into the registry if the court determined at trial that waiver occurred or "that a different amount of monthly rent, less than the $600.00 demanded by the Plaintiff was reasonable." Thereafter, the Home Owners continued to pay $600 each month into the court registry.

After a trial, the court awarded Naples Estates $30, 600, for the rent for the period from October 2015 through December 2019. It directed the Clerk to disburse the balance of the funds in the court registry to the Home Owners.

Naples Estates argues on appeal that the trial court erred by failing to award it $4, 569.73 (the full $600 per month that the Home Owners failed to pay during the twenty-four months before it filed suit). Although not explicitly articulated in the sparsely worded Judgment, it is apparent from the record, including the amount awarded and the Home Owners' written closing, that the trial court credited the Home Owners' defense of waiver and estoppel. The Home Owners argued below, and now argue on appeal, that Naples Estates waived the right to collect the entire $600 per month from them during the twenty-four months prior to the eviction action because it accepted their payments of lesser sums during that time.

Naples Estates asserts that the Home Owners waived their right to assert defenses other than payment, such as waiver and estoppel, because they failed to deposit the disputed rent from October 2013 through October 2015. Section 723.063, Florida Statutes (2015) governs a mobile home owner's defenses to an action for rent or possession and states, in pertinent part, "In any action based upon nonpayment of rent or seeking to recover unpaid rent, or a portion thereof, the mobile home owner may defend upon the ground of a material noncompliance with any portion of this chapter or may raise any other defense, whether legal or equitable, which he or she may have." See § 723.063(1). To raise these defenses, the mobile home owner must pay the disputed rent into the court registry.

(2) In any action by the park owner or a mobile home owner brought under subsection (1), the mobile home owner shall pay into the registry of the court that portion of the accrued rent, if any, relating to the claim of material noncompliance as alleged in the complaint, or as determined by the court. The court shall notify the mobile home owner of such requirement. The failure of the mobile home owner to pay the rent, or portion thereof, into the registry of the court as required herein constitutes an absolute waiver of the mobile home owner's defenses other than payment, and the park owner is entitled to an immediate default.

§ 723.063(2). It is apparent from the introductory clause, "In any action by the park owner . . . brought under subsection (1)," that the rent deposit requirement did not begin until the eviction action against the Home Owners had commenced, after which point the Home Owners did deposit the requisite amount.

However, although not waived by a failure to comply with section 723.063(2), the Home Owners' waiver and estoppel defense is unavailing. In order for a waiver to occur there must be: (1) a right, privilege, or benefit that existed at the time of the waiver and which may be waived; (2) the actual or constructive knowledge of that right, privilege, or benefit; and (3) an intention to relinquish that right, privilege, or benefit. See Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. 4th DCA 1981). A waiver may be "implied from conduct, the acts, conduct, or circumstances," but it "does not arise from forbearance for a reasonable time." Fireman's Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2d DCA 1967).

Naples Estates accepted direct payments from the Home Owners for less than the full $600 rent for twenty-four months preceding the eviction action. The Home Owners were fully aware during...