Civil Court: CONTRACTS
– contract that is clear, complete, and unambiguous does not require judicial
construction – trial court did not err in entering final judgment in favor of Tenant
as Landlord had failed to follow express terms of the parties’ contract for the
payment of maintenance charges – 3-day demand was defective since it requested
maintenance charges for years 1998 through 2002, not just 2002, in
contradiction to the terms of parties’ contract – correct amount must be set
forth in 3-day demand - Final Judgment affirmed. E & A, Inc., d/b/a Bay Bazaar v. Sharaka, d/b/a Diamond Gifts,
Appeal No. 05-0063AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
E & A, INC., d/b/a BAY BAZAAR,
vs. Appeal No.05-0063AP-88B
JEANNE ABOU SHARAKA,
d/b/a DIAMOND GIFTS,
Appeal from Final Judgment
Judge Dorothy Vaccaro
Nickolas C. Ekonomides, Esquire
Attorney for Appellant
David C. Luczak, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by E & A, Inc., d/b/a Bay Bazaar (Bay Bazaar), from the Final Judgment for Defendant, entered June 10, 2005, in favor of Jeanne Abou Sharaka, d/b/a Diamond Gifts (Diamond Gifts). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
The record shows that on November 24, 2003, Bay Bazaar filed a complaint seeking to evict Diamond Gifts from commercial retail space for Diamond Gifts’ failure to pay common area maintenance charges pursuant to terms of the parties’ lease. The complaint attached the required statutory 3-day notice, dated November 7, 2003, in which Bay Bazaar demanded the accrued maintenance charges from Diamond Gifts totaling
$ 19,422.00, for years 1998 through 2002. Diamond Gifts answered the complaint and raised several affirmative defenses including laches and that Bay Bazaar failed to provide a breakdown of claimed expenses.
The matter went before Judge Blackwood for a bench trial on February 19, 2004. Judge Blackwood considered the two pertinent contract provisions:
10.03 CALCULATION OF PROPORTIONATE SHARE
The additional rent defined shall be estimated in advance by the Lessor. After the end of each Lease Year, or shorter accounting period as Lessor may determine in Lessor’s sole discretion, Lessor shall deliver to Lessee a statement showing the amount of the Shopping Center’s operating cost for the period, and further showing Lessee’s share. If the total payments made by Lessee for the Shopping Center’s operating cost exceeds Lessee’s proportionate share, then Lessor shall retain any overage to apply to future rent. If the total of payments made by Lessee are less than Lessee’s proportionate share, then Lessee shall pay the deficiency to Lessor immediately upon demand and the payments for the succeeding period will be increased so that the total of the payments for the period will equal Lessee’s proportionate share for the preceding period. (emphasis added).
The waiver by Lessor of any breach of any term of this Lease shall not be deemed to be a waiver of such or any subsequent breach of the same or any other term. The subsequent acceptance of rent by Lessor shall not be a waiver of any preceding breach by Lessee other than the failure of Lessee to pay the particular rent accepted. No covenant of this Lease shall be deemed to have been waived by Lessor, unless such waiver is in writing and signed by Lessor.
At the conclusion of the trial, Judge Blackwood found that section 28.02 was irrelevant to the eviction action since there was no evidence that Diamond Gifts had ever breached the lease. Judge Blackwood found that Bay Bazaar had waived collection of maintenance costs because the terms of the lease, section 10.03, contemplate that a yearly statement would be provided by Bay Bazaar. Judge Blackwood reasoned:
Obviously, this is purely going to be prejudicial to the tenant if payments for the succeeding year are not adjusted on an annual basis, and then the demand is presented years later, that’s just not reasonable, obviously, and prejudice is an element of waiver and, you know, that prejudice is apparent here. . . Since the waiver has been established, obviously, there’s no – you can’t find the tenant in breach; I can’t evict them.
In finding the 3-day notice invalid, Judge Blackwood clarified that he didn’t need to specifically rule whether Bay Bazaar had waived collection of 2002 maintenance charges due to its delay in requesting payment under section 10.03, since the 3-day demand letter was a demand for all five years, 1998 through 2002. Based on Judge Blackwood’s oral ruling, Final Judgment for Defendant was entered on June 10, 2005, by Judge Vaccaro, finding that Bay Bazaar “shall take nothing on its claim for possession in that the landlord’s acceptance of any of the monies that were claimed in the Three Day Notice was not proper and thus a waiver of the right to proceed with the eviction claim.”
On appeal, Bay Bazaar raises three issues: (1) Did the trial court err when it found the landlord’s 3-day notice defective; (2) Did trial court err when it failed to determine rents past due and require rent to be deposited in the registry; and, (3) Did the trial court err in finding that tenant was entitled to attorneys fees?
addressing these issues, the Court initally finds that the trial court’s
interpretation of a contract is a matter of law subject to a de novo standard
of review. See Jenkins v.
Eckerd Corporation, 913 So.2d 43, 49 (
Prior to sending the letter, dated June 25, 2003, for 2002 maintenance charges, there is nothing in the record to show that Bay Bazaar ever provided Diamond Gifts with a statement showing operating costs, adjusted the succeeding period to reflect increased operating costs, or demanded payment for such operating costs, as required by section 10.03. As the trial court found that section 10.03, stating that “Lessor shall deliver to Lessee a statement showing the amount of the Shopping Center’s operating costs for the period,” contemplates that the tenant will receive a yearly statement reflecting operating costs and that its lease payments will increase based upon the Lessee’s proportionate share from the preceding period. In using the term “waiver,” Judge Blackwood found that Bay Bazaar had breached the terms of the contract so could not seek to evict Diamond Gifts based on its own breach. See National Health Laboratories, Inc. v. Bailmar, Inc., 444 So.2d 1078, 1080 (Fla. 3d DCA 1984)(holding that the lessor was precluded from recovery cost of living increases against commercial lessee since it failed to comply with time and notice conditions placed on it for receiving such increase in rent).
held by the trial court, since the 3-day demand notice was defective because it
sought full payment for maintenance fees going back five years in contradiction
to the terms of the parties’ contract, Bay Bazaar was precluded from seeking to
evict Diamond Gifts based on non-payment for solely year 2002. See Kaplan v. McCabe, 532 So.2d
1354, 1357 (Fla. 5th DCA 1988)(providing that notice to pay rent or quit made
by landlord must set forth the exact amount due, on the date it is due, to be
legally sufficient). Likewise, the Court
agrees with the trial court’s finding that section 28.02 did not apply since
28.02 is premised on the Lessee’s breach of the contract. While the wording in the Final Judgment for
Defendant, entered by Judge Vaccaro, appears to be inconsistent with reasoning
of Judge Blackwood’s ruling, the Final Judgment for Defendant must be affirmed
since there is an alternative theory or principle of law in the record to
support the judgment in favor of Diamond Gifts.
See Roberts v. State, 829 So.2d 901, 906-07 (
addressing the second issue, there is nothing in the record to show that Bay
Bazaar objected to the trial court proceeding to trial without requiring
Diamond Gifts to deposit rent money with the Court Registry. An appellate court will not entertain issues
that the complaining party could have, but did not, present to the trial
The Court finds that there is no merit to the third issue. The trial court did not enter a judgment for attorney’s fees, but rather reserved jurisdiction to consider the entitlement to attorney’s fees, “as may be appropriate.”
Therefore, it is,
ORDERED AND ADJUDGED that Final Judgment for Defendant is affirmed.
ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
PETER RAMSBERGER ANTHONY RONDOLINO
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Judge Dorothy Vaccaro
Nickolas C. Ekonomides, Esquire
David C. Luczak, Esquire
 The record reflects that Bay Bazaar made a written request to Diamond Gifts, on or about June 23, 2003, for the 2002 maintenance charges.
 Neither party argues that there should have been a new trial under these circumstances.
 It appears that the trial court was applying Florida Statutes, section 83.202, which states that landlord’s acceptance of past rent due, with knowledge of tenant’s breach of lease by nonpayment, is considered a waiver to landlord’s right to proceed with eviction.