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Landlord filed an eviction based on a 3 day notice that, on its face, included late fees in the amount claimed.   The lease had not defined late fees as “additional rent.”   The tenant did not raise this in his answer.  Subsequently, tenant hired a lawyer, who raised the defense of defective 3 day notice in a motion to dismiss.  The landlord objected that as the defense was not raised in tenant’s answer, it was waived.

The court ruled:

“A challenge of the court’s jurisdiction can be raised at any time. Fla. R. Civ. P. Rule 1.140(b) (emphasis added). Appel v. Lexington Insurance Co., 29 So.3d 377 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D481a] (holding that alleging that the complaint fails to state a cause of action may be raised even after the entry of a default) (citing Fla. R. Civ. P. 1.140(h)(2)).

The Ninth Circuit Court in its appellate capacity acknowledged that challenging the sufficiency of a three-day notice may be done for the first time on appeal and is not waived by failing to raise the issue on the trial court level. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009).

Therefore, this Court finds that Defendant did not waive the right to challenge the validity of the three-day notice by not raising the issue in his pro se answer.”

The court dismissed the eviction with prejudice, awarding costs and attorney’s fees to the tenant.

RACHELLE MOUCHAHWAR, Plaintiff, vs. BOBBY LACHANCE, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2011-CC-019644-O, Division 72. April 16, 2012. Wilfredo Martinez, Judge.    19 Fla. L. Weekly Supp. 604a

Online Reference: FLWSUPP 1907MOUC