Richards v. Dodge

• Decision Date: 13 February 1963
• Docket Number: No. 3177,3177
• Citation: 150 So.2d 477
• Parties: Marie RICHARDS, Appellant, v. Elizabeth DODGE and James Dodge a/k/a R. J. Dodge, d/b/a Prospect Hall School, Appellees.
• Court: Florida District Court of Appeals

Page 477

150 So.2d 477

Marie RICHARDS, Appellant, v. Elizabeth DODGE and James Dodge a/k/a R. J. Dodge, d/b/a Prospect Hall School, Appellees.

No. 3177.

District Court of Appeal of Florida, Second District.

Feb. 13, 1963.

Rehearing Denied March 15, 1963.

R. T. Shankweiler and Wynne M. Casteel, Jr., Flort Lauderdale, for appellant.

Marvin L. Lessne, Rassner & Lessne, Fort Lauderdale, Max A. Goldfarb, Winter & Goldfarb, Miami, for appellees.

ALLEN, Judge.

Appeal is brought by the plaintiff from a final judgment entered against her on her complaint for unpaid rent under a lease. Said judgment was in favor of plaintiff on defendants' counterclaim for breach of covenant. There was, however, no cross-assignment of error by defendant-appellees and only the judgment against plaintiff-appellant is of concern on appeal.

Plaintiff sued the defendants for nonpayment of rent pursuant to a written lease entered into between them for the period September 1, 1960, to August 1, 1961. The leased premises, an apartment house, were to be used as living quarters for girls attending the schoold owned by defendants. A two bedroom apartment, occupied by plaintiff at the time the lease was executed, was expressly excepted from the lease and reserved to plaintiff.

It was stipulated in advance of trial that rental payments for the months of May June and July, 1961, totaling $3,270.00 were unpaid. Execution of the lease was also stipulated.

In response to plaintiff's complaint defendants affirmatively raised breach of covenant in the answer, alleging that plaintiff breached the lease in several particulars. Specifically, defendant alleged a constructive eviction and consequent breach of a covenant of quiet enjoyment by plaintiff's leasing her apartment to a male tenant. Defendants further alleged breach of the duty to repair and render habitable and a failure to provide linens as provided in the lease. Counsel for both parties in their briefs and arguments on appeal seem to have concluded that the first alleged breach was the basis for the judgment, a conclusion which the record on appeal indicates is entirely correct. Accordingly, the questions on appeal all revolve about the vacating and leasing of plaintiff's apartment as a breach of covenant.

It is undisputed that defendants executed the lease, went into possession of the premises and continued in possession until May 1, 1961. On that date they vacated the premises, although three months remained during which they were obligated under the lease. In answering the complaint for the unpaid rent for these three months, defendants alleged and attempted to prove that plaintiff, in vacating her apartment in January, 1961, violated a parol agreement to act as a 'housemother' and, in leasing her apartment to a male tenant, constructively evicted defendants and breached the implied covenant of quiet enjoyment.

Plaintiff denied the existence of a parol agreement and contended that there had been no breach of covenant, or, if there was, that defendants were estopped to complain by virtue of the fact that the male tenant went into possession in early February, 1961, but that defendants continued to pay rent through April and did not complain that the male tenant was offensive or give any notice of dissatisfaction until April 13, 1961--a little more than two weeks before vacating. Even this notice, a letter from defendants' attorney, merely announced defendants' unilateral rescission of the lease and did not state with any particularity the facts constituting the supposed breach of covenant. Apparently, after receiving the letter, plaintiff did ascertain by phone that the male tenant's presence was the cause of rescission.

On complaint, answer and counterclaim, the case went to trial before the judge without a jury. Judgment was entered for defendants on plaintiff's complaint. Plaintiff's motion for new trial, or amended judgment, was denied and this appeal taken.

Since the trial judge did not, in his judgment, make any findings of fact or conclusions of law--the inclusion of which, though not required, is of estimable aid to an appellate court, Dworkis v. Dworkis, Fla.App.1959, 111 So.2d 70, 72 A.L.R.2d 1189--it must be assumed that he found, as a matter of fact and law, that there had been a breach of covenant or constructive eviction and that there had been no waiver of rights by failure to give notice. It must further be assumed that he found there to have been an enforceable parol agreement and a breach thereof. The validity of these findings and the consequent holdings and judgment constitute the subject matter of this appeal.

The appellees raise certain procedural errors which we have studied and determine are without merit. Accordingly, the motion to dismiss is denied.

Turning to the merits of the appeal, it appears that two real issues are presented, the validity of the finding of a constructive eviction and the validity of the finding that defendants had not waived their rights arising from the breach of covenant occasioned by the constructive eviction. At the outset, it should be noted that the questions of constructive eviction and waiver are questions of fact determinable by the trier of fact in light of the appropriate principles of law. Adelhelm v Dougherty, 1937, 129 Fla. 680, 176 So. 775; Stephenson v. Stephenson, Fla.1951, 52 So.2d 684; Carner and Sobel v. Shapiro, FlaApp.1958, 106 So.2d 87; 52 C.J.S. Landlord and Tenant § 460 (1947); 32 Am.Jur., Landlord and Tenant, § 246 (1955). In cases like the instant case, tried without a jury, the lower court's findings are entitled to the weight of a jury verdict and will not be disturbed unless there is a total lack of substantial evidence to support the trial judge's findings. Ross v. Florida Sun Life Insurance Co., Fla.App.1960, 124 So.2d 892. However, misinterpretation of the legal effect of the facts so found can result in reversible error. Holland v. Gross, Fla.1956, 89 So.2d 255, 63 A.L.R.2d 920. Finally, while it is true that when no findings of fact are made the appellate court must accept the facts most shown by the evidence to be favorable to the prevailing party below, Coble v. Agnew, Fla.App.1961, 128 So.2d 158, this does not mean that the appellate court must disregard uncontroverted evidence favorable to the appellant.

As indicated earlier, the lower court apparently found that plaintiff-appellant, in vacating her apartment and/or leasing it to a male tenant, constructively evicted defendant-appellees. A 'contructive eviction,' as distinct from actual eviction, is an act, which, though not amounting to actual eviction, is done with the express or implied intent of essentially interfering with the tenant's use and enjoyment of the premises. The requisite intent can be implied or presumed from the act's effect. Hankins v. Smith, 1931, 103 Fla. 892, 138 So. 494. Generally, abandonment of the premises within a reasonable time after the landlord's wrongful act is a necessary element of constructive eviction. See 32 Am.Jur., Landlord and Tenant, §§ 245-264 (1955); 52 C.J.S. Landlord and Tenant §§ 455-459 (1947); Annot. 75 A.L.R. 1114 (1931). Constructive eviction can constitute a breach of the covenant of quiet enjoyment implied in a lease. Hankins v. Smith, supra; 20 Fla.Jur., Landlord and Tenant, § 51 (1958); Annots. 62 A.L.R. 1257 (1929), 172 A.L.R. 18 (1948), 41 A.L.R.2d 1414 (1955).

Having found a constructive eviction, the court apparently found that defendants had not waived any rights against plaintiff arising from the eviction and consequent breach of covenant. The doctrines of waiver and estoppel have long been recognized in Florida, Masser v. The London Operating Co., 1932, 106 Fla. 474, 145 So. 75; Steen v. Scott, 1940, 144 Fla. 702, 198 So. 489, and are applicable against either party to a lease. Farmers' Bank and Trust Co. v. Palms Publishing Co., 1923, 86 Fla. 371, 98 So. 143; Macina v. Magurno, Fla.1958, 100 So.2d 369.

In the latter case, the Supreme Court of Florida said:

'In Masser v. London Operating Co., 1932, 106 Fla. 474, 145 So. 72, 79, this court said that while waiver, being the intentional relinquishment of a known right, does not arise from forebearance for a reasonable time, it might be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived. Further, it was said that where the conduct of the party is such as to create an estoppel no consideration for the waiver is necessary.' (100 So.2d at 373.)

The 'conduct * * * such as to create an estoppel * * *' necessary to a waiver consists of willful or negligent words and admissions, or conduct, acts and acquiescence causing another to believe in a certain state of things by which such other person is or may be induced to act to his prejudice. Coogler v. Rogers, 1889, 25 Fla. 853, 7 So. 391. Steen v. Scott, 1940, 144 Fla. 702, 198 So. 489. The acts or conduct need not be positive, but can consist of failure to act or, more particularly, failure to speak when under some duty to speak. Thomas v. Dickinson, 1947, 158 Fla. 819, 30 So.2d 382. See 12 Fla.Jur., Estoppel and Waiver, 997, 42-46 (1957).

Examining the facts adduced on trial in light of the above enunciated legal concepts of 'constructive eviction' and 'waiver' the conclusion that the lower court erred in entering judgment of defendants is inescapable.

Insofar as plaintiff's alleged violation of a parol agreement to act as housemother is concerned, it seems clear that this, as a matter of fact or law, could not constitute a constructive eviction as heretofore defined--and that such rights as may have accrued to defendants by virtue of the alleged violation were unquestionably waived.

The record reveals that defendants were dissatisfied with plaintiff's activities as housemother, felt her incompetent in this respect and secured a replacement even before plaintiff vacated her apartment. This replacement continued in...