County Civil Court: LANDLORD/TENANT – Subsidized Housing – as a subsidized tenant of a HUD development, tenant is entitled to statutory rights and procedural safeguards – pursuant to Florida Statutes, § 83.56(5), landlord waived right to evict tenant on grounds stated in termination notice by accepting the tenant’s rent – no new grounds or incidents were alleged or proven -- Eviction Judgment reversed. Hall v. Jordan Park Development Partners, LTD., No. 03-5013AP-88A (Fla. 6th Cir. App. Ct. May 27, 2004). 









vs.                                                                                            Appeal No. 03-5013AP-88A








Opinion filed _______________________


Appeal from Eviction Judgment

Pinellas County Court

Judge Walt Fullerton


Mark S. Kamleiter, Esquire

Attorney for Appellant


John E. McMillan, Esquire

Attorney for Appellee





            THIS CAUSE came before the Court on appeal, filed by Elease Hall (Hall), from the Eviction Judgment, entered May 20, 2003, in favor of Jordan Park Development Partners, LTD., d/b/a Jordan Park Apartments (Jordan Park).  The Eviction Judgment found that Jordan Park was entitled to immediate possession of the property described as 1254 23rd Street South, St. Petersburg, Florida, where Hall resides as a tenant.  The trial court stayed the eviction pending the outcome of this appeal.  Upon review of the briefs, the record, and being otherwise fully advised, the Court reverses the Eviction Judgment.

            The record shows that Hall is a tenant of Jordan Park, a HUD development, and receives subsidized housing.  As a subsidized tenant, Hall is entitled to certain statutory rights and procedural safeguards, including enumerated guidelines that must be followed by a landlord in terminating a lease or rental agreement.  On February 10, 2003, Jordan Park filed a Complaint seeking to evict Hall for violating the terms of her lease agreement.  Attached to the Complaint was the notice of termination, via letter dated December 31, 2002.  As stated in the notice, Jordan Park sought to terminate Hall’s lease for “repeated criminal activity in and around your apartment,” including suspected illegal drug sales.  The notice also states:

Because your rent was accepted in error for the month of December, the notice given to you on October 30 that your lease at Jordan Park Apartments would not be renewed became unenforceable.  This notice is to inform you that the termination date of your lease is extended to January 31, 2003, and you must vacate your apartment not later than that date.   


            Following a non-jury trial, the trial court entered its Eviction Judgment.  Although the Eviction Judgment does not make findings of fact in support of its ruling, the Order Staying Writ, entered May 23, 2003, does state, “[b]y its verdict the Court concluded that Defendant/Tenant has been condoning, permitting and/or encouraging the consumption and/or sale of controlled substances at her rented home.” 

            Hall raises three issues on appeal.  Paraphrasing, these are:  (1) whether under Florida Statutes, § 83.56(5), Jordan Park effectively waived its right to evict Hall on the grounds stated in the notice of termination by accepting Hall’s rent when no new grounds or incidents of noncompliance were alleged or proven; (2) whether Jordan Park provided Hall with sufficient notice of the allegations against her to allow her to understand what she was accused of to be able to prepare a defense; and, (3) whether there was sufficient evidence to evict Hall from her HUD housing based on illicit drug activities.

            Initially, the Court finds that Hall is unable to demonstrate reversible error as to the second and third issues as there is no transcript of the proceedings below.  See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)(stating that the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error).  Since these issues necessarily involve the trial court’s determination of the weight, credibility and sufficiency of the testimony and evidence presented, without a transcript Hall is unable to overcome the presumption of correctness of the trial court’s ruling.  See id; see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(explaining that the appellate court cannot substitute its opinion on the evidence but rather must indulge every fact and inference in support of the trial court’s judgment, which is the equivalent of a jury verdict).

            However, in addressing the first issue, the Court finds that a controlling principle of law was misconceived that constitutes grounds for reversal.  See Applegate, 377 So.2d 1150.  Florida Statutes, § 83.56(5) specifically provides that, “[i]f the landlord accepts rent with actual knowledge of a noncompliance by the tenant . . . the landlord . . . waives his or her right to terminate the rental agreement or bring a civil action for the noncompliance, but not for any subsequent or continuing noncompliance.”  As set forth in the notice of termination, Jordan Park accepted rent for December 2002 with actual knowledge of Hall’s noncompliance with her lease agreement, to wit, criminal activity occurring in and around Hall’s apartment.  However, Jordan Park did not allege in its Complaint, nor is there any record evidence, that there was subsequent or continuing noncompliance by Hall beyond August 2002, the period when three reports were filed by housing authority officers for the St. Petersburg Police Department.  Therefore, according to the plain and ordinary meaning of § 83.56(5), Jordan Park waived the right to terminate Hall’s lease agreement on December 31, 2002, the date of the notice, based on the alleged criminal activity occurring in August 2002 after accepting Hall’s December rent payment.  See e.g. Metropolitan Dade County v. Milton, 707 So.2d 913, 915 (Fla. 3d DCA 1998)(stating that words used in a statute should be construed in their plain and ordinary meaning).         

            In response to this argument on appeal, Jordan Park simply states that Hall’s lease agreement was not terminated pursuant to § 83.56(2), which provides for termination of a rental agreement for a tenant’s failure to comply with the material provisions of the rental agreement, but rather pursuant to § 83.57, which provides for the termination of a tenancy without a specific term.  However, Jordan Park fails to refer to the record or cite to any case law in support of this argument and the Court is unable to find such support.  Indeed, the notice of termination states that Hall’s lease is being terminated because of criminal activity not because Hall’s lease expired and was not being renewed. 

            It is therefore,

            ORDERED AND ADJUDGED that the Eviction Judgment is reversed and this cause is remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of May 2004.




                                                            JOHN A. SCHAEFER

                                                            Circuit Judge, Appellate Division


Copies furnished to:

Judge Walt Fullerton


Mark S. Kamleiter, Esquire

2509 First Avenue South

St. Petersburg, FL  33712


John E. McMillan, Esquire

9385 North 56th Street, Suite 200

Temple Terrace, FL  33617