Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
On appeal from Miami-Dade County Court, the 11th Circuit Court for Miami-Dade County reinforced the strict construction and interpretation of Florida Eviction Statute Section 83.60(2), stating that failure to pay money into the court registry constitutes grounds for immediate default and waiver of a defendant’ defenses. The Circuit Court opined that the defendant’s numerous filings amounted to delay tactics which then triggered the provisions of 83.60(2), and that the trial court acted in accordance with statutory authority to order funds payed into the court registry. See opinion below.
DAVID PRINCE, et. al., Appellants, v. VICTOR J. LABRUZZO, et. al., Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-138 AP. L.C. Case No. 12-210-CC-24. May 15, 2012. On appeal from an Order on Motion for Rent Determination, entered by Honorable Rodney Smith, County Judge. Counsel: Corey S. Carano, for Appellants. Sheelen G. Khan, for Appellees.
(Before LEBAN, CYNAMON, and BLAKE, JJ.)
(PER CURIAM.) This appeal arises from an Order Determining Rent which order expressly contains,inter alia, the directive that: “the monthly rent due is $7,000.00 Jan and February rent is to be deposited with the Registry of the Court within 3 days.” [Abbreviations altered].
Thereafter, there followed a cacophony of motions, responses, replies, and allegations more suitable for trial litigation than appellate proceedings.
Appellants (Defendants below) timely filed their notice of appeal from said order; thereafter, the lower court having denied a stay of its order pending appeal, Appellants filed their EMERGENCY MOTION TO STAY PENDING APPEAL. Appellees promptly filed a response in opposition to said motion to stay, and, on March 22, 2012, this Court in its appellate capacity, entered its ORDER DIRECTING THE DEPOSIT OF FUNDS and ordering the Clerk of Court to accept $21,000.00 to be paid by Appellant, David Prince, into the Registry of the Court. [This amount represented at the time three (3) month’s rent in the amount determined to be due as found by the lower tribunal]. The next day, March 23, 2012, this Court entered its ORDER GRANTING APPELLANT’S EMERGENCY MOTION TO STAY PENDING APPEAL, staying the appeal, but, in accordance with the order that is the subject of this appeal, providing in footnote 2 thereof, that Appellant “shall continue to deposit into the Registry of the Court $7,000.00 per month by the 5th of each month during the pendency of this appeal.” [Emphasis added]. It should be noted that Appellant asserted in its EMERGENCY MOTION TO STAY PENDING APPEAL filed before this Court on March 22, 2012, that “Defendants have deposited the rent per the addendum in escrow pending resolution of the rent determination hearing.” See ¶5. Thus, Appellants themselves were purportedly depositing said rental funds in escrow, which this Court at the time allowed to be converted to the Registry of the Court.
Thereafter, Appellees filed their motion, essentially seeking to set aside the stay entered by this Court and a motion to order disbursement of the funds from the Court’s Registry directly to Appellees. This Court, accordingly directed by its order of April 11, 2012, that the Clerk shall disburse the funds from the Registry to Appellees.
Appellants promptly filed their MOTION FOR RECONSIDERATION of this Court’s April 11th ORDER. This Court, on April 26, 2012, thereafter entered its ORDER DENYING MOTION FOR RECONSIDERATION.
Undaunted, Appellants filed the pending MOTION TO STOP DEPOSITING RENT INTO THE REGISTRY, advising this Court that there is a concomitant foreclosure action against Appellees and raising other factual matters never before brought to this Court’s attention, nor, apparently, to the lower tribunal’s attention. In rapid succession, subsequent motions have been filed, including Appellants’ MOTION TO RELINQUISH JURISDICTION OF RENT PAYMENTS TO THE CIRCUIT COURT OF MIAMI-DADE COUNTY; Appellees’ RESPONSE TO MOTION TO STOP DEPOSITING RENT INTO THE REGISTRY, MOTION FOR SANCTIONS AND DISMISSAL OF APPEAL FOR FAILURE TO DEPOSIT RENT IN VIOLATION OF THE ORDER; Appellants’ REPLY TO RESPONSE TO MOTION TO STOP DEPOSITING RENT INTO THE REGISTRY, MOTION FOR SANCTIONS AND DISMISSAL OF APPEAL FOR FAILURE TO DEPOSIT RENT IN VIOLATION OF THE ORDER; Appellants’ MOTION TO RELINQUISH JURISDICTION OF RENT PAYMENTS TO THE CIRCUIT COURT OF MIAMI-DADE COUNTY, and Appellees’ VERIFIED RESPONSE TO MOTION TO RELINQUISH JURISDICTION OF RENT PAYMENTS TO THE CIRCUIT COURT OF MIAMI-DADE COUNTY. It is this hyperbolic succession of motions, counter-motions, replies, etc. which this Court now addresses. The end result, as will be seen, is the dismissal of this appeal.
Insofar as this Court is able to ascertain from the voluminous pleadings generated in this appeal, a complaint was filed for determination of rent in the County Court below. After an answer was filed to the complaint, a hearing for rent determination was held and the lower tribunal entered its order, above quoted, determining, in part, that the amount of rent due on the lease sued upon is $7,000.00 per month to be deposited into the Registry of the Court within 3 days of said order. At the time of the entry of this order, on February 28, 2012, the order addressed January and February rent, but clearly was intended to include that amount each month during the pendency of the proceedings. Thereafter, Appellants timely filed their appeal to the Appellate Division of the Circuit Court.
In the plethora of motions, counter-motions, responses, replies, etc., that was to follow, a Motion to Stay (denied) was filed in the County Court, and thereafter, an EMERGENCY MOTION TO STAY PENDING APPEAL was filed in this Court. This emergency motion was promptly followed by Appellees’ Motion In Response To Defendants’ Emergency Motion To Stay Pending Appeal. Said opposition to the stay pending appeal correctly cited the rule of law, both statutory and decisional, that upon a tenant’s failure to deposit delinquent rent into the Registry of the Court, the tenant is deemed to have waived all defenses other than payment, and the landlord is entitled to an immediate default judgment and the issuance of a writ of possession without further notice of hearing. See Motion In Response at ¶5. See section 83.60(2), Florida Statutes; First Hanover v. Vazquez, 848 So.2d 1188, 1191 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1319b] (“In accordance with section 83.60, the landlord in this case was in entitled to payment of rent either directly or into the court registry, and on the tenants’ failure to do so, the landlord was entitled to a default and a writ of possession.”).
The statutory provision just cited, section 83.60(2), Florida Statutes, provides in clear and unambiguous language as follows:
(2) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court, the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the tenant to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default.
Of course, by the tenant’s failure to continue paying the rental amount as determined by the Court into the registry, “[h]e loses only his right to retain possession of the premises if he fails to pay the rent to the landlord or into the Registry of the Court. Any cause of action against the landlord to which he may be otherwise entitled is still available to him.” K.D. Lewis Enterprises Corporation, Inc. v. Smith, 445 So.2d 1032, 1035 (Fla. 5th DCA 1984).
That the statute is strictly construed by our courts is abundantly clear. See Stanley v. Quest Intern. Inv., Inc., 50 So.3d 672, 674 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a] (“the tenant is required to deposit the disputed rent into the court registry to assert any defense other than payment. The plain language of the statute requires it.” [emphasis added]), review denied 76 So3d 938 (Fla. 2011); City of Miami v. Smith, 698 So.2d 320, 320 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1923a] (construing the registry requirement statute and holding that by its “mandatory terms,” court “was required to issue an immediate writ of possession for the premises involved in this case” and Circuit Appellate Court’s ruling to the contrary was “a clear departure from the essential requirements of the law resulting in an injustice to the landlord . . .”.).
Without belaboring the point, or adding dozens of similar citations to this opinion, we find and so hold that Appellants’ repeated and patently delaying tactics in failing to continue to pay the $7,000.00 as ordered by both the trial court and this Court, invokes the “mandatory terms” of section 83.60(2), Florida Statutes, triggering the Appellees’ “entitle[ment] to . . . immediate” possession of the rental premises in question, and further constituting ample grounds for the dismissal of the instant appeal. A party willfully evading the orders of the trial and appellate courts may not be heard to invoke the very appellate process by which it seeks review of the orders so willfully evaded. See Daniels v. J.P. Morgan Chase Bank, NA., __ So.3d __ (2012 WL 1414305, 37 Fla. L. Weekly D992a, Fla. 3d DCA, April 25, 2012).
While this appeal will be dismissed, this decision does not preclude Appellants from seeking any affirmative relief to which they are entitled by way of counterclaim or other judicial process in the trial court below. “Any cause of action against the landlord to which [the tenant] may be otherwise entitled is still available to him.” K.D. Lewis, supra at 1035.
Finally, as for Appellants’ MOTION TO RELINQUISH JURISDICTION OF RENT PAYMENTS TO THE CIRCUIT COURT OF MIAMI-DADE COUNTY, this Appellate Division of the Circuit Court has no authority whatsoever to “relinquish” jurisdiction to another division of this Court, purportedly the foreclosure proceedings mentioned by Appellants in their pleadings. Appellants are free, of course, to seek an administrative ruling by the Transfer Judge of the Circuit Court to seek joinder of any County Court proceedings below with the Circuit Court foreclosure proceedings. That is not a matter for this Appellate Court.
APPEAL DISMISSED. (LEBAN, J., CYNAMON, J., and BLAKE, J., CONCUR)
1Such orders, whether granting or denying relief, “have been held to be orders determining the right to immediate possession of property, and as such, are appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).” First Hanover v. Vazquez, 848 So.2d 188,1189 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1319b].
3This court had previously, by its orders of March 23, 2012, and April 11, 2012, both stayed the proceedings below and permitted disbursement of previous rental funds deposited into the registry of the court. The dismissal of this appeal, as stated infra, is not intended as a bar to any judicial process tenants may seek to invoke should those funds have been wrongfully utilized or dissipated by the Appellees, an issue about which this Court makes no finding.