County Civil Court:  LANDLORD/TENANT – deposited funds in court registry – record shows that tenant deposited unpaid rent into court registry – trial court erroneously entered eviction judgment when disputed funds had been lawfully deposited - order reversed.  Kelley v. Teachers Insurance and Annuity Association of America, Appeal No. 05-0092AP-88A (Fla. 6th Cir. App. Ct. Sept. 13, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOHN KELLEY,

                        Appellant,

 

 

vs.                                                                                Appeal No. 05-0092AP-88A

                                                                                    UCN522005AP000092XXXXCV

 

TEACHERS INSURANCE AND ANNUITY

ASSOCIATION OF AMERICA, d/b/a

ECHELON AT THE RESERVE

                        Appellee.

_____________________________________________/

 

Appeal from Eviction Judgment

Pinellas County Court

Judge Henry J. Andringa

 

Karen E. Maller, Esquire

Attorney for Appellant

 

John E. McMillan, Esquire

Attorney for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by the Appellant, John Kelley (Kelley), from the Eviction Judgment, entered October 14, 2005, in favor of the Appellee, Teachers Insurance and Annuity Association of American, d/b/a Echelon at the Reserve (Echelon).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.[1]    

            The record shows that Echelon filed a complaint, on September 25, 2005, against Kelley alleging that Kelley had violated the terms of his written lease by installing a window air conditioner in his apartment.  Count I of the complaint sought possession of the apartment, costs, and attorneys fees; Count II of the complaint sought damages for unpaid rent and late charges.  The complaint attached a copy of the written lease agreement, in effect from June 7, 2004, through June 6, 2005, and a copy of the 7-day notice for noncompliance with the rental agreement, seeking removal of the window air conditioning unit.  The complaint did not specify how much rent Kelley owed.  On September 29, 2005, Kelley answered the complaint setting forth reasons why he should not be evicted, counterclaimed for damages related to his living conditions, and filed a motion to have the trial court determine the amount of rent to be deposited in the court registry.  The answer also requested that all correspondence be sent to a different mailing address at 5802 28th Avenue South, Gulfport. 

            On his own initiative, Kelley deposited $ 1,560.90 with the court registry on October 3, 2005.  On October 5, 2005, the trial court entered its Order Requiring Deposit, ordering Kelley to deposit the October rental of $ 1,440.00 with the court registry no later than Friday, October 7, 2005, at noon; failure to deposit the rental would result in the trial court proceeding with Count I, eviction, without further notice or hearing.  The order was mailed to Kelley at 500 Trinity Lane, Apt. 4209, St. Petersburg.  On October 12, 2005, Echelon filed its Motion for Entry of Eviction Judgment, resulting in the trial court entering the Eviction Judgment.

            Before this Court, Kelley argues that the trial court erred in entering the Eviction Judgment for a variety of reasons, including that Echelon failed to provide the statutorily mandated 3-day notice, that he had paid money into the Court registry, and that there was improper notice to Kelley, as correspondence and the trial court’s Order Requiring Deposit were sent to the wrong address.  The Court finds that the face of the record demonstrates that the trial court was obviously unaware that Kelley had already  deposited funds in the amount of $ 1,560.90 in the court registry at the time the Order Requiring Deposit was entered.  Further, for reasons not explained by Echelon in its Answer Brief, counsel for Echelon then filed its Motion for Entry of Eviction Judgment, apparently not checking to see if Kelley had deposited the disputed rent.[2] 

As such, the trial court erred in entering the Eviction Judgment, without notice to Kelley, based on the finding the Kelley failed to deposit the October rent.  In remanding this matter, the trial court must consider whether Echelon provided the proper pre-suit notice to Kelley and, if so, must consider the merits of the complaint and counterclaim.

            Therefore, it is,

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

            It is further,

            ORDERED AND ADJUDGED that the Appellant’s Motion for Attorneys Fees and Costs is granted, as to attorneys fees, if the Appellant ultimately prevails in the proceedings below.  Likewise, the Appellee’s Motion for Judgment for Attorneys Fees is granted only if it is ultimately the prevailing party.  The trial court shall determine the

 

 

amount of reasonable appellate attorney’s fees to be awarded.  As the prevailing party in this appeal, the Appellant may file its request for costs with the trial court pursuant to the Florida Rules of Appellate Procedure, Rule 9.400(a).

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.

 

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Judge Henry J. Andringa

 

Karen E. Maller, Esquire

One Progress Plaza, Suite 1210

St. Petersburg, FL  33701

 

John E. McMillan, Esquire

9385 North 56th Street, Suite 200

Temple Terrace, FL  33617



[1] The Court strikes check # 11559, dated September 6, 2005, attached to the Initial Brief, as it was not developed as part of the record below.  See Fla. R. App. P. Rule 9.200(a).  

 

[2] The Court notes that the Order Requiring Deposit and the Eviction Judgment were entered by two separate judges which may have contributed to the oversight that Kelley had already deposited funds.