DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CSC SERVICEWORKS, INC.,
Appellant,
v.
BOCA BAYOU CONDOMINIUM ASSOCIATION, INC.,
Appellee.
No. 4D19-3962
[December 2, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott R. Kerner, Judge; L.T. Case No. 502016CA011456.
David P. Reiner, II of Reiner & Reiner, P.A., Miami, for appellant.
Kenneth E. Zeilberger of Backer Aboud Poliakoff & Foelster, LLP, Boca
Raton, for appellee.
GERBER, J.
The former lessee appeals from the circuit court’s final order granting
the association’s motion for summary judgment on the former lessee’s
actions for wrongful eviction, breach of lease, and declaratory relief. The
former lessee argues the circuit court erred in basing its summary
judgment on three findings: (1) the doctrines of res judicata and collateral
estoppel (arising from a prior jury verdict in an unlawful detainer action)
barred the instant actions; (2) the former lessee waived its unlawful
eviction claim by voluntarily surrendering the premises; and (3) the lease
expired before the former lessee attempted to exercise its right of first
refusal to meet a new lessee’s offer to lease the premises. Although we
agree with the former lessee that the circuit court’s first and second
findings were improper, we conclude the circuit court’s third finding was
proper. Thus, we affirm the summary judgment.
We present this opinion in three parts:
1. The former lessee’s first appeal;
2. The proceedings after the first appeal; and
3. This appeal.
1. The Former Lessee’s First Appeal
This appeal is the second time in which the parties’ dispute has reached
our court. See generally CSC Serviceworks, Inc. v. Boca Bayou Condo.
Ass’n, Inc., 240 So. 3d 12 (Fla. 4th DCA 2018) (“CSC I”). CSC I sets forth
the case’s factual background and procedural history, to which we will add
as necessary for this appeal.
In 2000, the former lessee entered into a seven-year written laundry
space lease with the association. Id. at 13. The lease provided the former
lessee would furnish and install commercial washers and dryers in each
of the association’s twenty-six laundry rooms. Id.
Pertinent to this appeal, the lease included a right of first refusal clause
providing:
That should [the association] upon the expiration of the
final Lease term, including renewals, elect to[] Lease the
premises to any other person or entity similarly engaged in
the business of operating laundry Equipment or purchase
Equipment, then [the former lessee] shall have the right of first
refusal to meet any bona fide executed contract offer to let the
premises, or to sell equipment, under the identical terms and
conditions of such offer and this provision shall survive for
one (1) year after the expiration of the Lease.
The lease also contained a clause providing: “[T]his Lease incorporates all
oral promises between the parties, [and] can only be amended in writing
signed by both parties ....”
Before the initial seven-year lease term expired, the association and the
former lessee extended the lease for an additional seven years. Id.
In 2014, when the extended lease expired, the association and the
former lessee orally agreed the former lessee could continue to occupy the
laundry rooms and pay rent to the association on a month-to-month basis.
Id. This arrangement continued for nearly two years before the association
began receiving various complaints from the residents. Id.
In 2016, the association began to solicit bids for the lease of the laundry
rooms. Id. The former lessee actively participated in the bidding process;
however, the association ultimately selected a new lessee as its new
laundry service provider. Id.
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On August 16, 2016, the association sent the former lessee a letter
canceling the lease and asking when it could expect the former lessee to
remove its machines. Id. Shortly thereafter, on August 25, 2016, the new
lessee also contacted the former lessee and inquired as to when the
machines would be removed. Id. The former lessee’s representative
responded that she would “schedule something.” Id. The following day,
the new lessee e-mailed the same representative advising that its machines
would be arriving on September 21, 2016 and asking that the former lessee
remove its machines by September 27, 2016. Id. The former lessee’s
representative did not respond to the e-mail. Id.
On August 31, 2016, the new lessee again contacted the former lessee’s
representative to schedule a definite removal date. Id. The representative
responded that she would contact an installation technician about
scheduling something and would follow up after she made some progress.
Id. The former lessee’s representative never followed up as promised. Id.
On September 19, 2016, the former lessee notified the association and
the new lessee that the former lessee intended to enforce its right of first
refusal. Id. The former lessee provided the association with a copy of the
written lease which the association had entered into with the new lessee,
but upon which the former lessee had written its name over the new
lessee’s name.
The association did not sign the former lessee’s purported lease.
Instead, later that day, the association notified the former lessee that the
association had rejected the former lessee’s belated attempt to exercise its
right of first refusal. Id.
On September 27, 2016, when the new lessee arrived to install its
machines as scheduled, the former lessee’s machines were still connected
to the laundry rooms’ utility lines. Id. With the association’s approval, the
new lessee disconnected each one of the former lessee’s machines and
moved them aside within the laundry rooms. Id.
On October 3, 2016, the association sent the former lessee a pre-suit
demand letter advising that if the former lessee did not remove its
machines from the laundry rooms within fifteen days, the association
would file a tenant eviction action. Id. The former lessee removed its
machines before any eviction action was filed. Id.
The former lessee thereafter sued the association and the new lessee,
alleging causes of actions for breach of the lease agreement, tortious
interference, conversion, and unlawful detainer. Id. The former lessee
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successfully moved to sever its unlawful detainer claim for an immediate
jury trial before the other three actions would proceed. Id. at 13-14.
At that jury trial, the former lessee moved for a directed verdict at the
close of the evidence, arguing that the association, by directing the new
lessee to disconnect the former lessee’s machines without legal process or
the former lessee’s consent, unlawfully ousted the former lessee from the
laundry rooms. Id. at 14. The circuit court denied the directed verdict
motion, and the jury ultimately rendered a verdict in the association’s and
the new lessee’s favor. Id.
On appeal, the former lessee argued the circuit court erred in denying
the directed verdict motion, because the undisputed trial evidence
established the association directed the new lessee to disconnect the
former lessee’s machines and, “for all intents and purposes, retook
possession of the laundry rooms without legal process.” Id. The
association and the new lessee responded the circuit court correctly denied
the directed verdict motion because the former lessee’s “machines were
never physically removed from the laundry rooms and the act of
‘disconnecting’ is not equivalent to ‘dispossessing.’” Id.
We agreed with the association and the new lessee and thus affirmed.
Id. We reasoned, in pertinent part:
[T]he [association’s and new lessee’s] act of disconnecting
the machines and moving them to the other side of the
laundry rooms did not have the effect of ousting [the former
lessee] of its possession of the laundry rooms as contemplated
under the unlawful detainer statute. Any connection rights
that [the former lessee] may have had were related to its
leasehold interest which, as acknowledged by [the former
lessee], was not at issue in the unlawful detainer action. See
§ 82.05, Fla. Stat. (2017) (providing that “[n]o question of title,
but only right of possession and damages, is involved in the
action” of unlawful detainer); Se. Fid. Ins. Co. v. Berman, 231
So. 2d 249, 251 (Fla. 3d DCA 1970) (reiterating that “[t]he gist
of an action for unlawful detainer is the unlawful withholding
of possession by the defendant,” and holding that an unlawful
detainer action “is not the proper remedy where it is obvious
to the trial judge that plaintiff is substantially seeking an
adjudication of title”).
Id.
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2. The Proceedings After the First Appeal
After the first appeal, the parties resumed litigating the former lessee’s
other claims. The former lessee was granted leave to file an amended
complaint. The amended complaint alleged three counts against the
association: (1) wrongful eviction, (2) breach of lease, and (3) declaratory
judgment.
On the wrongful eviction count, the former lessee alleged the
association, by directing the new lessee to disconnect and move the former
lessee’s laundry equipment, violated section 83.21, Florida Statutes
(2016), which requires the filing of an eviction action, and instead
“wrongfully resorted to self-help.”
On the breach of lease count, the former lessee alleged the association,
by directing the new lessee to disconnect and move the former lessee’s
laundry equipment, violated the following lease provisions:
[The association] agrees that [the former lessee] shall have
the right of quiet enjoyment of the demised premises,
including unobstructed access to and from until the
expiration of the Lease term or any extension thereof. ....
….
[The association] shall not move or remove, disconnect or
tamper with the [the former lessee’s] machines or restrict
access for any reason whatsoever. [The association] further
agrees that it will not permit any other ... laundry machines
... on the premises, .... A breach of the covenants contained
in this Paragraph ... shall be deemed to constitute
Constructive Eviction ....
On the declaratory judgment count, the former lessee alleged it was in
doubt as to its rights, requiring the circuit court’s intervention, because:
37. [The former lessee] asserts that it has present and
continuing vested rights under the express terms of the [2016]
Lease ... which [the former lessee] accepted by properly
exercising its [right of first refusal]. ...
38. The Association has asserted ... that no such [right of
first refusal] survived the expiration of the initial Lease term,
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and that the Association has no obligation to perform under
the [2016] Lease with [the former lessee].
The association’s answer denied the former lessee’s material allegations
and raised several affirmative defenses. The association later filed a
motion for summary judgment based on three of those defenses, arguing
in pertinent part: (1) the previous lease expired by its own terms before
the former lessee attempted to exercise its right of first refusal; (2) the
former lessee waived its unlawful eviction claim when it voluntarily
removed its machines from the premises; and (3) the former lessee was
barred from seeking relief based on the doctrines of res judicata and
collateral estoppel arising from the prior adverse jury verdict on the
unlawful detainer action.
After a hearing (before a different judge than the one who conducted
the unlawful detainer trial), the circuit court entered its final order
granting the association’s summary judgment motion on the three
grounds raises above.
3. This Appeal
This appeal followed. The former lessee argues the circuit court erred
in three respects: (1) by finding res judicata and collateral estoppel arising
from the unlawful detainer jury verdict barred the remaining claims; (2) by
finding the former lessee waived its unlawful eviction claim by voluntarily
surrendering the premises; and (3) by finding the lease expired before the
former lessee attempted to exercise its right of first refusal to meet the new
lessee’s offer to lease the premises.
Although we agree with the former lessee that the circuit court’s first
and second findings were improper, we conclude the circuit court’s third
finding was proper. We address each finding in turn.
a. Res Judicata and Collateral Estoppel
“A [circuit] court’s ruling concerning the application of res judicata and
collateral estoppel is ... reviewed de novo.” Aronowitz v. Home Diagnostics,
Inc., 174 So. 3d 1062, 1065 (Fla. 4th DCA 2015).
[U]nder res adjudicata a final decree of judgment bars a
subsequent suit between the same parties based upon the
same cause of action and is conclusive as to all matters
germane thereto that were or could have been raised, while
[collateral estoppel] is applicable where the two causes of
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action are different, in which case the judgment in the first
suit only estops the parties from litigating in the second suit
issues—that is to say points and questions—common to both
causes of action and which were actually adjudicated in the
prior litigation.
Gordon v. Gordon, 59 So. 2d 40, 44 (Fla. 1952).
“For res judicata to apply, there must be four identities: (1) identity of
thing sued for, (2) identity of cause of action, (3) identity of persons and
parties to the action, and (4) identity of quality or capacity of persons for
or against whom the claim is made.” Leahy v. Batmasian, 960 So. 2d 14,
17 (Fla. 4th DCA 2007).
Here, the circuit court erred in finding res judicata barred the former
lessee’s instant actions. The first two necessary identities, of the “thing
sued for,” and of the “cause of action,” were lacking. The prior action was
for unlawful detainer, and the “thing sued for” in the prior action was the
former lessee’s possessory right to access the laundry rooms. The instant
actions are for wrongful eviction, breach of lease, and declaratory
judgment, and the “thing sued for” in the instant actions is the former
lessee’s alleged contractual right to maintain its machines in the laundry
rooms. As we held in CSC I: “Any connection rights that [the former lessee]
may have had were related to its leasehold interest which, as
acknowledged by [the former lessee], was not at issue in the unlawful
detainer action.” 240 So. 3d at 14 (emphasis added).
Similarly, the circuit court erred in finding collateral estoppel barred
the former lessee’s instant actions. “For [collateral estoppel] to apply, the
following [five] elements must be met: (1) an identical issue must be
presented in a prior proceeding; (2) the issue must have been a critical and
necessary part of the prior determination; (3) there must have been a full
and fair opportunity to litigate the issue; (4) the parties in the two
proceedings must be identical; and (5) the issues must have been actually
litigated.” Provident Life & Accident Ins. Co. v. Genovese, 138 So. 3d 474,
477 (Fla. 4th DCA 2014).
Here, the prior action examined whether the association had infringed
upon the lessee’s possessory right to access the laundry rooms. The
instant actions presented different issues, those being whether the
association wrongfully evicted the former lessee and breached the parties’
lease by having the former lessee’s machines disconnected.
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b. Waiver
The circuit court also erred in finding the former lessee waived its
unlawful eviction claim by voluntarily surrendering the premises.
Because the facts upon which the circuit court based its finding that
the former lessee waived its claims were undisputed, our review of that
finding is de novo. Cf. Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n,
143 So. 3d 1015, 1017 (Fla. 3d DCA 2014) (“The only issue before us on
appeal is whether [appellant] waived its right to compel arbitration – a
determination we make de novo because the underlying facts are
undisputed.”).
“A wrongfully evicted tenant may bring an action against the landlord
for damages.” LK Grp. Holding Co. v. Spurrier Investments, Inc., 110 So. 3d
511, 511-12 (Fla. 4th DCA 2013). “In order to be actionable, the eviction
must be ‘wrongful or unlawful.’” Id. at 512 (citation omitted). One type of
“unlawful” eviction occurs when the landlord exercises “self-help” to evict
the tenant. See Sheradsky v. Basadre, 452 So. 2d 599, 603 (Fla. 3d DCA
1984) (“The record indicates that [the lessee] did have a valid claim for
wrongful eviction … because the purchasers of the apartment complex
unlawfully resorted to self-help to remove the [lessee’s] machines in
violation of Section 83.21, Florida Statutes ....”).
However, “[a] party may waive any right to which [that party] is legally
entitled, whether secured by contract, conferred by statute, or guaranteed
by the Constitution.” DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d
85, 97 (Fla. 2013). As we held in LeNeve v. Via South Florida, L.L.C., 908
So. 2d 530 (Fla. 4th DCA 2005):
Waiver is the voluntary and intentional relinquishment of
a known right or conduct which implies the voluntary and
intentional relinquishment of a known right. ... [T]hree
circumstances give rise to a waiver: (1) the existence of a right
which may be waived; (2) actual or constructive knowledge of
the right; and (3) the intent to relinquish the right. Proof of
these elements may be express[] or implied from conduct or
acts that lead a party to believe a right has been waived.
Id. at 535 (internal citations and quotation marks omitted).
Here, the former lessee may have had a valid unlawful eviction claim.
Section 83.05(2), Florida Statutes (2016), provides only three methods by
which a landlord may recover possession of rented premises:
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(a) In an action for possession under s. 83.20, or other civil
action in which the issue of right of possession is determined;
(b) When the tenant has surrendered possession of the
rented premises to the landlord; or
(c) When the tenant has abandoned the rented premises.
§ 83.05(2), Fla. Stat. (2016).
The association, rather than filing eviction proceedings as section
83.05(2)(a) permitted, instead effected a “self-help” eviction when it
directed the new lessee to disconnect the former lessee’s machines and
replace them with its own. As the former lessee argued in the circuit court:
“[T]he [association’s] wrongful act of instructing [the new lessee] to
disconnect [the former lessee’s] equipment and render it useless for the
purpose the lease intended, constituted wrongful eviction.”
Further, the former lessee did not waive that wrongful eviction claim
when, in response to the association’s pre-suit demand letter to remove its
machines from the laundry rooms, the former lessee did so. By that time,
the association already had accomplished its “self-help” eviction by having
directed the new lessee to disconnect the former lessee’s machines and
replace them with its own. No facts exist to support the association’s claim
that the former lessee, by removing its disconnected machines, intended
to relinquish its right to pursue a wrongful eviction claim. Rather, the
record indicates the only reason why the former lessee removed its
disconnected machines was to protect those machines from the possibility
of damage. Thus, the circuit court erred in treating that action as the
former lessee’s waiver of its wrongful eviction claim.
Despite the circuit court improperly finding the former lessee waived its
wrongful eviction claim, that error was harmless. The wrongful eviction
claim appears to have sought damages for the future monetary income
which the former lessee lost as a result of the association’s termination of
the former lessee’s right to the exclusive and quiet use, possession and
enjoyment and access to the laundry rooms. However, as the next section
explains, the lease had expired before the association had directed the new
lessee to disconnect the former lessee’s machines.
When the extended lease expired in 2014, the former lessee became a
month-to-month tenant at will, per the parties’ oral agreement. See §
83.04, Fla. Stat. (2016) (“When any tenancy created by an instrument in
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writing, the term of which is limited, has expired and the tenant holds over
in the possession of said premises without renewing the lease by some
further instrument in writing then such holding over shall be construed to
be a tenancy at sufferance.”); § 83.01, Fla. Stat. (2016) (“Any lease of lands
and tenements, or either, made shall be deemed and held to be a tenancy
at will unless it shall be in writing signed by the lessor. Such tenancy
shall be from year to year, or quarter to quarter, or month to month, or
week to week, to be determined by the periods at which the rent is
payable.”). Thus, when the association sent the former lessee a letter
canceling the lease, the tenancy terminated fifteen days later. See §
83.03(3), Fla. Stat. (2016) (“A tenancy at will may be terminated by either
party giving notice as follows: … Where the tenancy is from month to
month, by giving not less than 15 days’ notice prior to the end of any
monthly period[.]”). As a result, by the time the association had directed
the new lessee to disconnect the former lessee’s machines, the former
lessee’s tenancy had terminated, and the former lessee was no longer
entitled to possession of the laundry rooms nor the ability to operate its
machines for its benefit.
c. Lease Expiration
Because the circuit court interpreted the lease to find that the lease
expired before the former lessee attempted to exercise its right of first
refusal (and before the association had directed the new lessee to
disconnect the former lessee’s machines), our review of that finding is de
novo. See Jackson v. The Shakespeare Found., Inc., 108 So. 3d 587, 593
(Fla. 2013) (“[A] matter of contract interpretation ... is a question of law
subject to de novo review.”).
Although our review is de novo, we adopt the circuit court’s reasoning
supporting its finding on this issue:
[I]t is undisputed that the written Lease originally entered
into by the parties in 2000, expired by its own terms in
October 2014. The parties did not execute any other written
amendments to the Lease, as required by section C.3 of the
Lease. The parties merely orally agreed that the [former
lessee] could continue to occupy the leased premises on a
month-to-month basis. The oral month-to-month
arrangement continued until August 16, 2016, on which date
the Association served [the former lessee] with a written notice
of cancellation of the oral month-to-month arrangement.
Pursuant to Florida Statute Chapter 83, oral leases are
terminable at will, as long as written notice of termination is
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served by either party to the oral Lease. See Fla. Stat. § 83.03.
It is undisputed that the Association provided written notice
of the termination of the oral Lease.
To the extent [the former lessee] relies on its right of first
refusal to claim that it somehow had the right to remain in
possession, the [c]ourt disagrees. As noted herein, section 3.1
of the Lease provided that the [former lessee’s] right of first
refusal expired “... one year after the termination of the Lease”.
Here, the Lease expired on October 30, 2014, and there were
no written addenda to the Lease. Consequently, pursuant to
section 3.1, any right of first refusal expired on October 30,
2015. Therefore, ... the [former lessee’s] attempt to first
exercise its right of first refusal on September 19, 2016, was
untimely, and thus unenforceable.
Finally … once the written Lease terminated, the option
terminated as well. See[,] e.g.[,] Douglass v. Jones, 422 So. 2d
352 (Fla. 5th DCA 1982) (where [l]ease was not timely renewed
and the option to buy was, by its own terms, dependent upon
the validity of the [l]ease, the option to buy terminated even
though the terms of the [l]ease continued to define the ensuing
month-to-month tenancy), and Gower-Goheen Realty, Inc.,
215 So. 2d 499 (Fla. [2d] DCA 1968) ([w]here lessee held over
after termination of [l]ease, the [lease] terms ... were still in
effect, but the option to purchase was not exercisable).
In sum, [the former lessee] had absolutely no legal right to
lawful possession. The written Lease had terminated, the
right of first refusal had … expired by its own terms, the
untimely made right of first refusal was rejected and written
notice to vacate was provided. [The former lessee] thereafter
… vacated the property after being advised that the
Association would bring an eviction action.
Conclusion
Based on the foregoing, although we have disagreed in part with the
circuit court’s first and second reasons for granting the association’s
motion for summary judgment, we have agreed with the circuit court’s
third reason for granting the association’s motion for summary judgment.
We also conclude the circuit court correctly denied the former lessee’s
motion for partial summary judgment on its wrongful eviction claim. We
thus affirm the final judgment in the association’s favor.
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Affirmed.
WARNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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