BEZL LIMITED, LLC v. RAYMOND OFFICE PLAZA, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BEZL LIMITED, LLC,
Appellant,

v.

RAYMOND OFFICE PLAZA, LLC,
Appellee.

No. 4D20-743

[March 17, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; G. Joseph Curley, Jr., Judge; L.T. Case No.
502019CA012140.

Donna Greenspan Solomon of Solomon Appeals, Mediation &
Arbitration, Fort Lauderdale, and John E. Carter of Big Sky Law Firm,
LLC, West Palm Beach, for appellant.

Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm
Beach, for appellee.

GERBER, J.

A non-residential tenant appeals from the circuit court’s amended final
default judgment for possession. The circuit court entered the final
judgment pursuant to section 83.232(5), Florida Statutes (2019), based on
the tenant’s ultimate failure to comply with the circuit court’s previous
order to pay the monthly rent into the court registry while the landlord’s
eviction action was pending. See § 83.232(5), Fla. Stat. (2019) (“Failure of
the tenant to pay the rent into the court registry pursuant to court order
shall be deemed an absolute waiver of the tenant’s defenses. In such case,
the landlord is entitled to an immediate default for possession without
further notice or hearing thereon.”).

We affirm the circuit court’s amended final judgment of possession.
“Florida courts consistently have held that trial courts have no discretion
in entering an immediate default for possession under these
circumstances. The trial court may not consider the reasons why the
deposit was not timely made.” Park Adult Residential Facility, Inc. v. Dan
Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010); see also id. at n.1
(“Although we may have ‘rachmones’ for the tenant, see Lerner v. Brin, 608
So. 2d 519 (Fla. 3d DCA 1992), the law is the law. It is not our job to carve
exceptions into an otherwise clear and imperative statute.”).

As we recently reiterated, while the result may be “harsh”:

[T]he reason for failing to tender payment on the first day of
the month is not relevant. See [Poal Wk Taft, LLC v. Johnson
Med. Ctr. Corp., 45 So. 3d 37, 39 (Fla. 4th DCA 2010)]
(“Although the result may seem harsh ..., there is no equitable
exception to the statute.” (citing Courthouse Tower, Ltd. v.
Manzini & Assocs., 683 So. 2d 215 (Fla. 3d DCA 1996))).
When a tenant fails to tender payment on or before the
deadline, the court must issue a default for possession. See,
e.g., Park Adult Residential Facility, Inc. ... , 36 So. 3d [at] 813
... (“[T]he tenant failed to deposit the rent into the court
registry on the date ordered. Regardless of the tenant’s reason
for failing to make the deposit, the trial court was statutorily
required to enter an immediate default and writ of
possession.”).

Cove & Deerfield Beach, LLC v. R Fast, Inc., 45 Fla. L. Weekly D2640, 2020
WL 6937858, at *2 (Fla. 4th DCA Nov. 25, 2020); see also Kosoy Kendall
Assocs., LLC v. Los Latinos Rest. Inc., 10 So. 3d 1168, 1168 (Fla. 3d DCA
2009) (“Upon the lessee’s failure to timely deposit a monthly rental
payment into the registry as required by court order under section 83.232,
Florida Statute[s], the petitioner-landlord was absolutely entitled to an ex
parte, immediate default for a writ of possession of the premises by section
83.232(5), Florida Statute[s].”) (internal and external footnotes omitted).

We note that our affirmance of the circuit court’s amended final
judgment of possession, and the waiver of the tenant’s defenses to the
landlord’s eviction action, is without prejudice to: (1) the landlord’s
remaining claims for damages and the tenant’s defenses thereto; and (2)
the tenant’s counterclaims for damages and the landlord’s defenses
thereto. See Cove & Deerfield Beach, 2020 WL 6937858, at *2 (“[T]he
landlord is entitled to a default for possession in accordance with section
83.232(5), not disbursement of the deposited funds.”) (quoting Palm Beach
Marketplace, LLC v. Aleyda’s Mexican Restaurante, Inc., 103 So. 3d 911,
912 (Fla. 4th DCA 2012)). Thus, nothing in this opinion should be
interpreted as a comment on the merits of the parties’ damages claims,
damages counterclaims, and defenses to each.

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 Affirmed.

MAY and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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