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Court rules that tenant’s failure to deposit the rent claimed by the landlord into the court registry within five days entitled landlord to automatic default regardless of whether landlord’s 3 day notice was defective

QUEST  INTERNATIONAL INVESTMENT, INC., vs. STANLEY,. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-14279 COCE (56). April 14, 2009.

THIS CAUSE came before the Court upon consideration of the Defendant’s Motion to Dismiss

Just a few months ago, the Honorable James C. Hauser, in his widely respected treatise on Florida Landlord-Tenant  once again stated concerning a three-day notice:

a proper notice is no longer a condition precedent to a landlord’s right to possession, if the tenant  fails to post the rent into the court registry.

1 J. Hauser, Florida Residential Landlord Tenant Manual §§3.02[2][a], [c][i] (2008). Notwithstanding this seemingly clear statement of Florida law, parties continue to obtain rulings from County Court judges to the contrary, particularly in Broward County. One only has to peruse issues of the Florida Law Weekly Supplement for the past several years to see numerous conflicting rulings on this issue, almost on a monthly basis. This Court submits that this issue is one of the rare County Court issues that we should look to the District Courts of Appeal to resolve.

In the instant case, the Defendant has filed a response to this suit for Eviction which is pending before the Court. The response did not deposit rent into the Court registry due a claimed defective three-day notice. Additionally, the response:

1. Does not allege that the undisputed portion of rent claimed to be due has been paid, or was tendered to the Plaintiff or Plaintiff’s agent within three days after service of notice to pay rent (The Defendant does not dispute rent due for March and April 2009);

2. Does not reflect that the rent payment has been deposited with the Clerk of the Court as required by Fla. Stat. §83.60(2); or

3. Does not request, within five days of service, a hearing to determine the amount of rent that should be required to be deposited into the court registry, or alternatively if requested, did not attach documentation in support of the motion, as required by Fla. Stat. §83.60(2).

The Defendant argues, however, that he is not required to tender rent into the court registry because the Plaintiff failed to serve a proper 3-day notice. The Court holds that if the Defendant desired to defend the action based on a defective three-day notice, then he was required, at a minimum, to have tendered the undisputed rent into the court registry. The Defendant does not dispute that he has not paid the rent to the Plaintiff, and yet the Defendant failed to tender this undisputed portion into the Court Registry.

The Court specifically finds that the failure to tender the rent into the Court Registry as required by Fla. Stat. §83.60(2) operates as a waiver of the Defendant’s right to raise a defective or lack of notice in defense of this action. The reasons supporting this Court’s ruling are cogently explained most recently by the Honorable James C. Hauser in his referenced treatise. See 1 J. Hauser, Florida Residential Landlord-TenantManual §3.02[2][a], [c][i] (2008) (due to statutory change, “a proper notice is no longer a condition precedent to a landlord’s right to possession, if the tenant  fails to post the rent into the court registry”). See also Cantor v. Wilson, 10 Fla. L. Weekly Supp. 1024, 1028-29 (Sarasota Cty. Ct. 2003). Under these circumstances, Florida Statute §83.60(2) (2007) provides that the landlord is entitled to an immediate default without further notice or hearing. In support of its ruling, this Court adopts the decisions and rationales of the following decisions, all of which are incorporated herein:

The decision of the Ninth Judicial Circuit Court sitting in its appellate capacity in Barfield v. Busby, 11 Fla L. Weekly Supp. 396 (9th Cir. Ct. 2004); the decision of the Eleventh Circuit Court sitting in its appellate capacity in Smalls v. Joseph, 11 Fla. L. Weekly Supp. 92 (11th Cir. Ct. 2003); McDonnell v. Williams, 14 Fla. L. Weekly Supp. 979 (Palm Beach Cty. Ct. 2007); Cantor v. Wilson, 10 Fla. L. Weekly Supp. 1024 (Sarasota Cty. Ct. 2003); Johnson v. Rodriguez, 11 Fla. L. Weekly Supp. 59 (Broward Cty. Ct. 2003); Grant v. Cunningham, 10 Fla. L. Weekly Supp. 1039 (Broward Cty. Ct. 2003), affirmed sub nom, Cunningham v. Grant, 12 Fla L. Weekly Supp. 336 (17th Cir. Ct. 2004); Palm Manor Apts. v. Schneider, 10 Fla. L. Weekly Supp. 839 (Broward Cty. Ct. 2003), and the decision of the Honorable Ana I. Gardiner in South State Investment, LLC v. Century Rehab, Inc., Order on Defendant’s Emergency Motion to Stay Eviction, Case No. 03-8645 COSO (62) (Broward Cty. Ct. 2004).

The rationale has more specifically been set out by this Court in Johnson, 11 Fla. L. Weekly Supp. at 59, pertinent portions of which the Court sets forth below:

Florida Statute §83.60(2) provides in pertinent part, “In any action by the landlord for possession of a dwelling unit, 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 [. . .]. Failure of the tenant to pay the rent into the registry of the court [. . .] constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant  with a writ of possession to issue without further notice or hearing thereon” (emphasis added).

Proponents of the argument that a defective 3-day notice should give rise to a dismissal without tender of rent put great weight on the portion of the above statute which uses the word “defense.” They argue that asserting a 3-day notice is defective is not a “defense,” but rather goes to whether the landlord is able to state a cause of action for eviction due to failure to comply with an “element” of the cause of action, i.e., termination of the tenancy. Indeed, the only way the tenant can get around the requirement to post unpaid rent is to assert something other than a defense. So, by claiming a defective 3-day notice is not a defense, the proponents argue that the obligation to deposit rent is not triggered. The Court rejects this argument for several reasons.

First, and most convincingly to the Court, the failure to state a cause of action, or failure to establish all elements of an action, is in fact a “defense” under Florida law. Florida Rule of Civil Procedure 1.140(b) so provides: “Every defense [. . .] shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: [. . .] (6) failure to state a cause of action [. . .]. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based [. . .] shall be stated specifically and with particularity [. . .]. Any ground not stated shall be deemed waived [. . .]” (emphasis added).

Second, even if failure to state a cause of action were not a “defense,” failure of a condition precedent clearly is. Team Land Development, Inc. v. Anzac Contractors, Inc., 811 So.2d 698, 700 (Fla. 3d DCA 2002). The Fourth District Court of Appeal has ruled that “compliance with the statutory [3-day] notice is merely a condition precedent to an eviction.” Bell v. Kornblatt, 705 So.2d 113, 114 (Fla. 4th DCA 1998) (emphasis added). See also Investment & Income Realty, Inc. v. Bentley, 480 So.2d 219, 220 (Fla. 5th DCA 1998) (proper 3-day notice is condition precedent to eviction).

Third, the language of the statute itself is drafted with emphasis: “Failure of the tenant to pay the rent into the registry of the court [. . .] constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon” (emphasis added). Fla. Stat. §83.60(2). The Legislature has provided that failure to post unpaid rent is not merely a waiver; it is an absolute waiver. The landlord is not merely entitled to a judgment; the landlord is entitled to an immediate judgment. The use of such strong language indicates to this Court that the Legislature was comprehensive in its intentions as to the effect of the statute.

Finally, the Court believes that the failure to hold otherwise would fly in the face of the clear language of the statute, as well as the Legislature’s intent. [. . .] The legislative scheme was clearly put into place to prevent this type of situation — someone raising claims against an eviction while rent remains unpaid. The Defendant is likely unable to demonstrate that the purported “defect” amounted to any prejudice to her at all. See State v. Laiser, 322 So.2d 490, 492 (Fla. 1975); Loehrke v. State, 722 So.2d 867, 870 (Fla. 5th DCA 1998); State v. Russo, 389 So.2d 213, 214 (Fla. 4th DCA 1980) (in absence of prejudice, substantial compliance with statutory requirements is generally sufficient).

This Court points out that the Bell case, cited above, specifically deals with residential evictions, as is at issue in the instant case. See also Clark v. Hiett, 495 So.2d 773, 775 (Fla. 2d DCA 1986) (in residential eviction, three-day notice is a “condition precedent”).

Moreover, since this Court issued its decision in Johnson, the Second District Court of Appeal has issued a decision which even more strongly supports the Court’s rationale, 214 Main Street Corp. v. Tanksley, 947 So.2d 490 (Fla. 2d DCA 2006). This case dealt with an analogous statute involving a commercial eviction, in which the appellate court stated: “the legislature intended that a landlord’s right to possession be absolute. The statute does not allow for a procedure whereby a trial court may excuse the tenant’s noncompliance [. . .].”

Finally, while the Court acknowledges that the Honorable Patti Englander Henning has in the past reversed this Court on this issue, the Court notes that it has also been upheld on this identical issue by three other Circuit Judges, specifically the rulings of the Honorable Dorian Damoorgian (one decision); the Honorable Robert Carney (two decisions); and the Honorable Ana Gardiner (one decision). With the exception of Judge Gardiner’s decision, these rulings are also recent Circuit Court Appellate Decisions, all three of which are just as binding on this Court as the decision of Judge Henning. See, e.g., Linda Williams v. Yuk Ngan Wong, Order and Opinion on Appeal, Case No. 04-3253(12) (17th Cir. Ct. Oct. 12, 2004); Cunningham v. Grant, 12 Fla. L. Weekly Supp. 336 (17th Cir. Ct. 2004), aff’d sub nom, 10 Fla L. Weekly Supp. 1039 (Broward Cty. Ct. 2003). Because there is therefore no definitive controlling authority on this issue, this Court chooses to follow the rulings of Judges Damoorgian, Carney and Gardiner, particularly because their opinions are supported by the greater weight of authority throughout the entire State of Florida, not just Broward County, and in this Court’s view, are simply better reasoned.

Accordingly, a default is hereby entered in favor of the Plaintiff with regard to possession only, and upon receipt of a proposed Final Judgment from the Plaintiff or Plaintiff’s attorney, the Court will award possession of the premises to the Plaintiff.

Nevertheless, because of the continuing conflict within the Seventeenth Judicial Circuit on both the County Court and Circuit appellate levels; the probability that parties will continue to obtain conflicting rulings based on the “luck of the draw” of which County Judge they are assigned at the trial level and which Circuit Judge they are assigned on appeal; and the fact that this issue likely comes up weekly in each county court civil division, this Court certifies the following question to the Fourth District Court of Appeal:

WHETHER A TENANT CLAIMING A DEFECTIVE OR NON-EXISTENT THREE-DAY NOTICE IN A RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE ACTION BASED ON THE DEFECTIVE OR NON-EXISTENT THREE-DAY NOTICE.

__________________

1Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.

16 Fla. L. Weekly Supp. 586b 

Online Reference: FLWSUPP 166QUEST

AFFIRMED. 35 Fla. L. Weekly D2636a. (Stanley v. Quest Investment, Inc., 4D09-1690, 12/1/2010)

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