County Civil Court: LANDLORD/TENANT – Court registry – Appellant still required to deposit funds in court registry even if her claim was that she had to pay property taxes in lieu of monthly rent. Issues of newly discovered evidence first asserted on appeal were not preserved and did not constitute fundamental error. Eviction judgment affirmed. Carolyn Jones v. Myrtis Jones, No. 51-2008-CC-004613-WS (Fla. 6th Cir. Ct. Nov. 20, 2009).

NOT FINAL UNTIL REHEARING TIME EXPIRES

AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

CAROLYN JONES,

Appellant,

UCN: 51-2008AP000015XXXX-WS

v. Case No: 51-2008-AP-15-WS

Lower No: 51-2008-CC-004613-WS

MYRTIS JONES,

Appellee.

________________________/

Appeal from Pasco County Court

County Judge Anne Wansboro

James Kelley, Esquire

Harley Herman, Esquire

Attorneys for Appellant

Daniel J. Kortenhaus, Esquire

Attorney for Appellee

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Appellant, from the Default Final Judgment for Eviction, entered December 5, 2008. 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 Appellee filed a two-count complaint alleging tenant eviction and damages, on November 10, 2008. Appellee alleged that there was an oral agreement requiring her daughter, Appellant, to pay rent in the amount of $500 on the first day of each month. Appellant did not pay rent as scheduled from May through October 2008 (a total of six months). Appellant, however, paid $200, on October 1, 2008. Appellee calculated that Appellant owed the remaining $2,300.00 plus interest. On November 4, 2008, Appellee served Appellant with a three-day notice to pay rent or vacate. Appellant did neither.

In a handwritten response, Appellant contended that she was the daughter of Appellee and did not have a verbal agreement to pay any rent. Instead, Appellant maintained that the verbal agreement was for her to pay the annual property taxes of $1,000. Appellant added that the house in question was condemned by the county, but that she had paid about $25,000 in maintenance and repairs to pass county inspection.

Consequently, an order of default was issued by Judge Anne Wansboro. The order of default stated that the response filed by Appellant (1) did not allege that the rent had been paid within three days after the notice to pay rent was served; (2) did not indicated that the rent had been deposited with the Clerk of Court; and (3) did not request a hearing to determine either the amount of rent that should be deposited into the Court Registry nor attach documentation in support of the motion. The Final Judgment of Eviction was issued on December 5, 2008. The Writ of Possession was subsequently issued on December 9, 2008. Appellant filed a timely notice of appeal, on December 18, 2008.

Before this Court, Appellant argues that the trial court made an error of law or abused its discretion by issuing the Order of Default and the Final Judgment of Eviction because Appellant was not required to make a deposit into the Registry of the Court. Florida Statutes Section 83.60(2) requires a tenant in a residential eviction action, who is asserting a defense other than payment, to deposit the rent into the Registry of the Court. Appellant asserted that she was not required to pay rent; therefore, she was not required to pay into the registry.

Alternatively, Appellant argues that she was not a “tenant” within the definition of Section 83.43(4), Fla. Stat. (2008). Section 83.43(4) defines a tenant as any person entitled to occupy a dwelling unit under a rental agreement. Appellant furthers that the agreement allowing her to occupy the dwelling in exchange for certain repairs and improvements does not constitute a rental agreement. Therefore, Florida Statute Section 83.60(2) would not apply to Appellant, and eviction would be an inappropriate remedy.

Appellant’s arguments lack merit. When a landlord files a residential eviction action under Chapter 83 of the Florida Statutes, the Clerk issues a summons notifying tenants of the steps they take to have a judge hear their case. See § 83.60(2), Fla. Stat. (2008). The tenant must: (1) assert payment of rent and provide evidence of such; or (2) deposit the undisputed portion of the unpaid rent into the court registry; and (3) ask the court to determine how much rent will need to be deposited. Appellant was made aware of these conditions, but did not comply.

If Appellant were to have alleged a reason for withholding all or a portion of the rent, section 83.60(2) required that all or a portion of the rent still be deposited into the registry. Assuming, arguendo, that the agreement was for Appellant to only pay the annual taxes of $1,000, then Appellant would have still needed to at least deposit all or a portion of that amount into the registry. In that case, Appellant could have asked the trial court to determine how much needed to be deposited. Alternatively, Appellant could have asserted that she already paid the taxes and showed evidence of such. Appellant did neither of these steps.

If Appellant had paid a deposit into the registry, then the trial court could have decided whether or not she had a legitimate reason for withholding the rent. If the court determined that Appellant’s reason for withholding rent was legitimate, Appellant could have hypothetically received a reduction of the rent. If, however, the trial court were to have determined that Appellant illegitimately withheld the rent, then the rent money would already be in the registry for Appellee. See § 83.60(2), Fla. Stat. (2008). Since Appellant failed to deposit any amount or even ask the court to determine an amount to deposit, Appellant was deemed to have waived all defenses. Thus, the trial court properly issued an immediate default judgment.

For the first time in her Reply Brief, Appellant raises several issues, including standing and defects in the three-day notice. As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) (a claim not raised in the trial court will not be considered on appeal). "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). Appellant argues that the errors now being asserted were fundamental and should be considered. The Court does not find these issues to be so fundamental as to abdicate the trial court’s judgment. These issues are more properly addressed in a Rule 1.540(b) motion. See Florida Rules of Civil Procedure 1.540(b).

The Court finds that the record supports the trial court’s issuance of the Default Final Judgment, as it is supported by substantial, competent evidence. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976). Appellant has failed to overcome the presumption of correctness of the trial court’s ruling. See Applegate v. Barnett Bank of Tallahasee, 377 So. 2d 1150, 1152 (Fla. 1979); Universal Beverages Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005).

Therefore, it is

ORDERED AND ADJUDGED that the Default Final Judgment is affirmed.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ______ day of November 2009.

_____________________________

DANIEL D. DISKEY

Circuit Judge, Appellate Division

_____________________________ _____________________________

W. LOWELL BRAY, JR. STANLEY R. MILLS

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Harley Herman, Esquire

Daniel J. Kortenhaus, Esquire