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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
JOHN KELLEY,
Appellant,
vs. Appeal
No. 05-0092AP-88A
UCN522005AP000092XXXXCV
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF
ECHELON AT THE RESERVE
Appellee.
_____________________________________________/
Appeal from Eviction Judgment
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
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
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
________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
______________________________ ______________________________
LAUREN LAUGHLIN BRANDT
C.
Circuit Judge, Appellate Division Circuit
Judge, Appellate Division
Copies furnished to:
Judge Henry J. Andringa
Karen E. Maller, Esquire
One
John E. McMillan, Esquire
[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
[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.