County Civil Court: LANDLORD/TENANT - Court Registry - Mobile home park/Landlord brought suit to evict mobile home owner/Tenant for violation of rules and regulations of park and sought "recovery of rent due", Section 723.063(2), Fla. Stat. (2010), Florida Mobile Home Act. No violation of procedural due process when trial court required Tenant to deposit past-due rental payments into registry of the court prior to entertaining motion for rehearing/relief from judgment Final Judgment and Order Lifting Stay affirmed. Abramski v. Paradise Park Co-Op, Inc., No. 11-000017AP-88A (Fla. 6th Cir. App. Ct. November 22, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOANNE E. ABRAMSKI,

Appellant, Case No. 11-000017AP-88A

UCN522011AP000017XXXXCV

v.

 

PARADISE PARK CO-OP, INC., a

Florida not-for-profit corporation,

Appellee.

______________________________________/

 

Opinion Filed ______________

 

Appeal from Final Judgment

Pinellas County Court

Judge Walt Fullerton

 

Steven W. Hair, Esq.

Attorney for Appellants

 

David S. Bernstein, Esq.

Kenneth T. Curtin, Esq.

Attorneys for Appellee

 

PER CURIAM.

Appellant Joanne E. Abramski appeals the County Court Final Judgment of Eviction entered on October 12, 2011; and the "Order Lifting Stay of Writ (Count I, Eviction)" entered on April 6, 2011. We affirm and remand for further proceedings.

Statement of Case

On December 2, 2009, Paradise Park Co-Op, Inc., mobile home park ("Paradise") filed a complaint against mobile home owner Joanne E. Abramski, the tenant in the mobile home park, and her daughter Devon Elender Abramski. Count One of the Complaint seeks to evict Joanne Abramski ("Ms. Abramski") for failing to comply with the terms of her mobile home lot lease with Paradise, for violating the Rules and Regulations of the mobile home park, and violating section 723.061, Florida Statutes (2009). Count Two of the Complaint is an action for unlawful detainer against Devon Abramski ("Devon") allegedly for refusing to vacate the park and unlawfully withholding possession of the lot by illegally residing in Ms. Abramski's mobile home. Count Three of the Complaint is an action for trespass against Devon.

On April 22, 2010, Paradise, Ms. Abramski, and Devon entered into a "Stipulation to Settlement."[1] The Settlement Agreement of the parties was memorialized in a March 19, 2010, transcribed statement that is included in the appellate record. A review of the transcript of the statement reveals that Ms. Abramski and Devon agreed that Devon would permanently move out of the park and Devon was subject to limited visitation with her mother and grandparents. Further, it was agreed that

Joanne Abramski shall continue to be fully responsible for all monthly lot rent and other charges that may accrue at the property pursuant to her prospectus and no financial consideration or accommodation is due to her as a result of this agreement.

 

Joanne Abramski is not excused from any performance obligation imposed upon her by virtue of her tenancy at the community by way of this accommodation that we are extending to her and her daughter Devon Abramski.

 

(R 119-20). After further discussion of the terms of the settlement agreement, counsel for Paradise summarized as follows:

If any of the foregoing is violated, whether it be [Devon] moving out tonight or the three-day visitation allowance, payment of rent, compliance with the rules, any of these things we've agreed to today are violated, then [Paradise] is entitled to proceed to a hearing on the merits in this case and obtain a writ of possession for violation of this agreement and whatever other relief the Court may afford [Paradise], such as they would as [sic] requested under our complaint if we were going to Court rather than making this agreement today. Is that understood?

 

Ms. Abramski and Devon both responded in the affirmative. (R 129-30). It was further clarified that the settlement agreement was binding and applied to both Ms. Abramski and Devon. They were warned that if Devon violated the visitation agreement or Ms. Abramski failed to pay her mobile home lot rental payments the settlement agreement would be violated. (R 131-32).

On May 5, 2010, the County Court approved the "Stipulation to Settlement." Further, the Order directed that the funds deposited in the registry of the court by Ms. Abramski for mobile home lot rental payments accruing during the pendency of the action were to be released to Paradise.

On October 5, 2010, Paradise filed a "Motion for Entry of a Final Judgment of Eviction and Issuance of Writ of Possession Following Defendant's, Joanne E. Abramski and Devon Elender Abramski, Violation of the Terms of the Parties' Settlement Agreement." No hearing was conducted on the motion. On October 12, 2010, the County Court entered a Final Judgment of Eviction and directed the Clerk of Court to issue a writ of possession ten days after entry of the Order.

On October 18, 2010, through counsel, Ms. Abramski filed a "Motion for Rehearing and Motion to Set Aside Final Judgment of Eviction and Motion For Relief From Judgment" (hereinafter "motion for rehearing/relief from judgment"). On October 20, 2010, the County Court entered an order staying the writ of possession until it could hear the argument of the parties concerning the pending motion.

On January 25, 2011, Paradise filed a "Motion to Lift Stay on Writ of Possession and to Evict Defendants for Failure to Deposit Rents in Violation of Section 723.063, Fla. Stat." In support of the motion, Paradise filed the Affidavit of Charlotte A. Knowlton. The affidavit states that Ms. Knowlton is the Property/Community Manager and Ms. Abramski had not paid rent lot for her lease since September 20, 2010. Rental payments as of the date of the affidavit were due for October 2010 through January 2011.

On April 4, 2011, a hearing was conducted on the pending motions and the parties appeared before the County Court. The parties have not filed a transcript of the hearing with this Court.

On April 6, 2011, the County Court entered an "Order Lifting Stay of Writ (Count I, Eviction)." The Order states that it is undisputed that Ms. Abramski had not tendered the mobile home lot rental payments to Paradise or deposited any rental payments in the Court Registry since October 2010. At the time of the hearing, the undisputed unpaid balance totaled $4,183.00. The Order recites that the proceedings were recessed to allow Ms. Abramski to deposit the rental payments into the Court Registry, but she failed to do so. The Order continued:

Because Florida law requires Defendants/Tenants to deposit undisputed, unpaid rental before the Court may hear defenses to an eviction, and because Defendants/Tenants failed to make any deposit, the Court orally Ordered the Stay and the Writ of Possession lifted, recalled, and cancelled.

 

The Court, however, announced that if the total sum was deposited, an evidentiary hearing might still be scheduled. The Court then delayed an additional forty-eight (48) hours before executing this Order. Even so, there is still no Registry Deposit.

 

The Order directed the Sheriff execute the Writ of Possession. In effect the Order denied the motion for rehearing/relief from judgment. This appeal by Ms. Abramski followed. Ms. Abramski posted a bond and the County Court Order has been stayed pending appeal.

Standard of Review

The appellate court is to employ an abuse of discretion standard to review a trial court order denying a motion for rehearing or to review an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b). J.J.K. Int'l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008).

Analysis

At the April 4, 2011, hearing, the trial court had before it Ms. Abramski's motion for rehearing/relief from judgment filed on October 18, 2010; and Paradise's "Motion to Lift Stay on Writ of Possession and to Evict Defendants for Failure to Deposit Rents in Violation of Section 723.063, Fla. Stat.," filed on January 25, 2011.

As noted above, the parties have not filed a transcript of the April 4, 2011, hearing. However, the trial court's April 6, 2011, "Order Lifting Stay of Writ (Count I, Eviction)" states that it was undisputed that Ms. Abramski had not tendered rental payments to Paradise or deposited any rental payments in the Court Registry since October 2010. At the time of the hearing the undisputed unpaid rental payment balance totaled $4,183.00.

The Order indicates that at the April 4, 2011, hearing, Ms. Abramski was directed to deposit into the registry of the court the accrued, unpaid mobile home lot rental payments, but she failed to do so. The trial court orally lifted the stay, but informed Ms. Abramski that if $4,183.00 was deposited into the registry of the court, an evidentiary hearing on the pending motions might still be scheduled. After a forty-eight hour delay, the funds were not deposited and the Sheriff was ordered to proceed to execute the writ of possession.

Ms. Abramski raises two issues on appeal. First, she claims that the trial court erred when it lifted the stay and directed the Sheriff to execute the writ of possession. She concedes that section 723.063(2), Florida Statutes (2010), of the Mobile Home Act is controlling in this case. The statute provides:

In any action by the park owner or a mobile home owner brought under subsection (1) [any action based upon nonpayment of rent or seeking to recover unpaid rent], 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.

 

(Emphasis added.) Citing no prior court decisions, Ms. Abramski argues that if a mobile home park owner seeks eviction for any reason other than nonpayment of rent, there is no statutory authority to require the mobile homeowner to post the accrued rents into the registry of the court. Further, she asserts she was never notified by the trial court of the requirement that the accrued mobile home lot rents be deposited into the registry of the court. Thereafter, she admits that she was given forty-five minutes on the date of the hearing to deposit the past due rents into the registry of the court. In reply brief, contrary to the statement in the April 6, 2011, order, she claims the trial court did not inform her that she had additional forty-eight hours to deposit such sums before it would the written order directing the Sheriff to execute the writ of possession. Ms. Abramski has failed to supply this Court with a transcript of the April 4, 2011, hearing in order to refute the statements in the April 6, 2011, order.

This Court notes that the Settlement Agreement of the parties provided that Ms. Abramski would remit all monthly lot rental payments and other charges that may accrue at the property. (R. 119-20, 131-32). Further, Count One of the Complaint seeks eviction of Ms. Abramski and the prayer for relief states:

WHEREFORE, Plaintiff demands judgment against J. Abramski, and all tenants claiming by, through, or under her, for (i) recovery of rent due; and (ii) for the issuance of a Writ of Possession directing the Sheriff of Pinellas County to permanently remove J. Abramski, and anyone claiming by, through or under her, from the Lot forevermore, together with reasonable attorneys' fees, court costs, and such other relief as this Honorable Court shall deem just and proper.

 

Although the Complaint identifies Count One as a claim for "Eviction," the count also is seeking "recovery of rent due."

The undisputed unpaid past-due rent "as determined by the court" totaled $4,183.00 at the time of the hearing. See 723.063(2), Fla. Stat. Therefore, under the plain meaning of the statute, whether under the terms of the settlement agreement or based upon the relief sought in the Complaint, the trial court properly required Ms. Abramski to deposit $4,183.00 into the registry of the court prior to it considering her motion for rehearing/relief from judgment. See 723.063(2), Fla. Stat. Further, this Court concludes that the trial court's oral order at the April 4, 2011, hearing directing her to deposit $4,183.00 into the registry of the court properly notified Ms. Abramski of the requirement and she was given sufficient time to comply. The trial court did not abuse its discretion and Ms. Abramski's argument is without merit.

In her second issue, Ms. Abramski asserts that her due process rights were violated when the trial court entered the April 6, 2011, "Order Lifting Stay of Writ (Count I, Eviction)" without notice that rent was to be deposited into the registry and when the trial court did not conduct a hearing prior to the entry of the October 12, 2010, Final Judgment of Eviction.

This Court has concluded that the trial court's oral order at the April 4, 2011, hearing properly notified Ms. Abramski of the requirement to deposit the past due mobile home lot rental payments into the registry of the court. She was given sufficient time to comply with the requirement before the April 6, 2011, Order was entered. Ms. Abramski's argument that there was a due process violation based on failure to give notice is without merit.

In the argument that her due process rights were violated by the entry of the October 12, 2010, Final Judgment of Eviction without a hearing, Ms. Abramski is attempting to raise the same argument she raised in her motion for rehearing/relief from judgment without the necessity of paying the past-due rents into the registry of the court.

She has conceded that this matter is governed by section 723.063(2) that requires the tenant to deposit rental payments into the registry of the court during the pendency of an action. Failure to require all rents to be deposited into the registry of the court may cause irreparable injury to the landlord because it "could be required to seek other sources to satisfy any judgment they should obtain. Such alternative sources may not exist or may be insufficient to fully satisfy the judgment." MLH Property Managers, Inc. v. Cox, 613 So. 2d 1358, 1360-61 (Fla. 4th DCA 1993).

Procedural due process requires both fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner. Massey v. Charlotte County, 842 So. 2d 142, 146 (Fla. 2d DCA 2003). Section 83.60(2), Florida Statutes governing residential landlord/tenant actions, is a comparable statute to section 723.063(2) that also requires tenants to deposit delinquent and accruing rental payments into the registry of the court during the pendency of the eviction action. Section 83.60(2) has been held not to violate due process and is not unconstitutional. See Karsteter v. Graham Co., 521 So. 2d 298 (Fla. 3d DCA 1988) (citing Lindsey v. Normet, 405 U.S. 56, 65 (1972)).

Further, Ms. Abramski was afforded the right to be heard when the hearing on her motion for rehearing/relief from judgment was conducted. However, she failed to comply with the trial court's order directing her to pay the undisputed, past-due mobile home lot rental payments into the registry of the court in accordance with section 723.063(2), and waived all defenses to the eviction by her actions. Ms. Abramski's due process rights were not violated and the trial court did not err or abuse its discretion in this matter.

The October 12, 2010, Final Judgment of Eviction and the April 6, 2011, "Order Lifting Stay of Writ (Count I, Eviction)" are affirmed.

Affirmed.

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of November, 2011.

 

Original order entered on November 22, 2011, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

Copies furnished to:

 

Steven W. Hair, Esq.

2790 Sunset Point Rd.

Clearwater, FL 33759

 

David S. Bernstein, Esq.

Kenneth M. Curtin, Esq.

150 Second Ave. N., Ste. 1700

St. Petersburg, FL 33701

 

Hon. Walt Fullerton



[1] The document entitled "Stipulation To Settlement" purports to be an agreement between Paradise, Joanne Abramski, and Devon Abramski. The stipulation was executed only by counsel for Paradise and Ms. Abramski. However, the terms and conditions of the oral settlement agreement between Paradise, Ms. Abramski, and Devon are memorialized in a transcribed statement.