Third District Court of Appeal
State of Florida
Opinion filed May 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-190 & 3D21-1115
Lower Tribunal No. 20-1895CC
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1560-1568 Drexel Avenue, LLC,
Appellant,
vs.
Johann C. Dalton, etc.,
Appellee.
Appeals from a non-final order from the County Court for Miami-Dade
County, Stephanie Silver, Judge.
Law Office of Attorney Ovide Val, and Ovide Val; BLU Ocean Law
Group, P.A., and Nashid Sabir, for appellant.
Ratzan Weissman & Boldt, and Ryan C. Tyler (Boca Raton); Legal
Services of Greater Miami, and Sean Rowley, for appellee.
Before FERNANDEZ, SCALES and HENDON, JJ.
PER CURIAM.
In this residential eviction case, 1560-1568 Drexel Avenue, LLC
(“Landlord”), the plaintiff below, seeks review of a January 13, 2021 nonfinal
order denying Landlord’s December 16, 2020 Motion for Default Judgment
of Possession. 1 Because the tenant’s defenses to the instant eviction action
are not based on payment of rent, we reverse the challenged order and
remand for the trial court to conduct an emergency hearing requiring
compliance with section 83.60(2) of the Florida Statutes. 2
1
While Landlord filed an emergency petition for writ of mandamus in this
Court, we treat the instant matter as an appeal of a nonfinal order
determining the right to immediate possession of property under Florida Rule
of Appellate Procedure 9.130(a)(3)(C)(ii). See First Hanover v. Vazquez, 848
So. 2d 1188, 1189 (Fla. 3d DCA 2003).
2
This statute reads, in relevant part, as follows:
In an 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 and the
rent that accrues during the pendency of the proceeding, when
due. . . . Failure of the tenant to pay the rent into the registry of
the court or to file a motion to determine the amount of rent to be
paid into the registry within 5 days, excluding Saturdays,
Sundays, and legal holidays, after the date of service of process
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. If a motion to
determine rent is filed, documentation in support of the allegation
that the rent as alleged in the complaint is in error is required.
§ 83.60(2), Fla. Stat. (2020) (emphasis added).
2
I. Facts and Procedural History
On July 21, 2020, Landlord filed a three-count eviction action against
appellee Johann Dalton (“Tenant”) in the county court. Landlord’s complaint
alleges that the parties’ tenancy was initially governed by a written lease,
requiring Tenant to pay $1,500 monthly rent. Landlord further alleges that
the term of the written lease ended on December 6, 2019, and the tenancy
then converted into a month-to-month tenancy. See § 83.04, Fla. Stat.
(2020). 3
Landlord alleges that Tenant stopped paying rent in May 2020. Count
I of the complaint, later dismissed, sought to evict Tenant for non-payment
of rent. Count II seeks damages for Tenant’s alleged failure to pay rent and
for Tenant’s causing damage to Landlord’s property on the premises. Count
III seeks to remove Tenant from the property for Tenant’s alleged failure to
vacate the premises after Landlord terminated the month-to-month tenancy.
3
This statute provides, in relevant part:
When any tenancy created by an instrument in 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. . . .
§ 83.04, Fla. Stat. (2020).
3
Specifically, in Count III Landlord alleges that: (i) pursuant to section 83.57(3)
of the Florida Statutes, 4 on May 26, 2020, Landlord served Tenant with a
fifteen-day notice terminating Tenant’s month-to-month tenancy; (ii)
notwithstanding the notice of termination, Tenant failed to vacate the
property on or before July 6, 2020 and continues to remain on the premises;
and (iii) therefore, Landlord is entitled to have Tenant removed from the
property.
After being served with the complaint, Tenant, through counsel, filed
an omnibus submission containing an answer and affirmative defenses, a
motion to dismiss the complaint, a counterclaim, and, pursuant to section
83.60(2), a motion to determine rent. In his counterclaim and affirmative
defenses, Tenant alleges that Landlord has violated various provisions of
4
The statute provides, in relevant part:
A tenancy without a specific duration, as defined in s. 83.46(2) or
(3), may be terminated by either party giving written notice in the
manner provided in s. 83.56(4), as follows:
....
(3) When the tenancy is from month to month, by giving not less
than 15 days’ notice prior to the end of any monthly period[.]
§ 83.57, Fla. Stat. (2020).
4
chapter 83 and also that, pursuant to Executive Order 20-180, 5 statutes
authorizing eviction of tenants affected by the COVID-19 pandemic had then
been suspended. Tenant does not assert, however, as an affirmative
defense or otherwise, that he has paid the rent alleged to be due.
In his motion to determine rent, Tenant asserted that, pursuant to the
Executive Order, the rent-posting requirement of section 83.60(2) should not
be imposed upon him in this proceeding because he has been adversely
5
Governor Ron DeSantis issued the Executive Order on July 29, 2020.
Section 2 of the Executive Order provides, in relevant part:
A. I hereby suspend and toll any statute providing for final action
at the conclusion of an eviction proceeding under Florida law
solely when the proceeding arises from non-payment of rent
by a residential tenant adversely affected by the COVID-19
emergency.
B. For purposes of this section, adversely affected by the
COVlD-19 emergency means loss of employment, diminished
wages or business income, or other monetary loss realized
during the Florida State of Emergency directly impacting the
ability of a residential tenant to make rent payments.
C. Nothing in this Executive Order shall be construed to suspend
or otherwise affect eviction proceedings unrelated to non-
payment of rent.
(Emphasis added).
5
affected by COVID-19. That is, Tenant claimed that he was not subject to
section 83.60(2)’s mandate that, to avoid an immediate default judgment for
removal and the entry of a writ of possession, he pay into the registry of the
court the accrued rent, either (i) as alleged in the complaint, or (ii) as
determined by the court, in addition to all rent accruing during the pendency
of the proceeding.
The trial court conducted a two-hour evidentiary hearing on Tenant’s
motion to determine rent, and thereafter entered an August 22, 2020 non-
final order concluding that, because Tenant was adversely affected by
COVID-19, Tenant was not required to comply with the rent-posting
requirements of section 83.60(2). At this hearing, the trial court also heard
Tenant’s motion to dismiss, and, in the same August 22, 2020 order,
dismissed Count I of Landlord’s complaint (seeking to evict Tenant for failure
to pay rent) finding that Landlord’s three-day notice was defective.
The Executive Order expired at 12:01 a.m., on October 1, 2020.
Subsequently, Landlord filed an October 22, 2020 motion (“October 22
motion”) seeking an order requiring Tenant to pay rent into the court registry
during the pendency of the proceedings as required by section 83.60(2). On
November 30, 2020, the trial court conducted a hearing on Landlord’s
October 22 motion. At that hearing, the trial court also heard several motions
6
previously filed by Tenant, including another motion by Tenant to dismiss
Landlord’s complaint, 6 and Tenant’s October 5, 2020 motion to invoke a
Centers for Disease Control (“CDC”) moratorium. 7 At the hearing, the trial
court determined that the CDC moratorium was inapplicable in this case, but
the trial court did not adjudicate either Tenant’s motion to dismiss or
Landlord’s October 22 motion.
With its October 22 motion still pending, Landlord filed its December
16, 2020 Motion for Default Judgment of Possession (“December 16
motion”) asserting that, because Tenant had not posted any rents into the
registry of the court as required by section 83.60(2), Landlord was entitled to
an immediate default judgment for removal and a writ of possession. On
January 8, 2021, the trial court conducted a hearing on Landlord’s December
16 motion, and issued the challenged January 13, 2021 order. In this order,
6
Tenant’s October 20, 2020 motion to dismiss asserts that Landlord’s
complaint should be dismissed as a sanction for other conduct undertaken
by Landlord. We express no opinion on any of the grounds asserted by
Tenant for dismissal of Landlord’s complaint.
7
On September 4, 2020, the CDC issued an order imposing a nationwide
temporary federal moratorium on residential evictions for nonpayment of
rent. See Temporary Halt in Residential Evictions to Prevent the Further
Spread of COVID-19, 85 FR 55292-01, 2020 WL 5253768 (Sept. 4, 2020).
The moratorium neither relieves tenants of the obligation to pay rent, nor
prevents eviction of tenants for reasons other than for nonpayment of rent.
Id.
7
the trial court denied landlord’s December 16 motion “without prejudice,”
concluding that, because Tenant’s motion to dismiss Landlord’s eviction
complaint is still pending, it would constitute a deprivation of due process for
the trial court to enter a default judgment for removal against Tenant,
notwithstanding the mandates of section 83.60(2). The trial court’s January
13, 2021 order does not mention, much less adjudicate, Landlord’s October
22 motion.
Landlord then filed in this Court an emergency mandamus petition
seeking a writ compelling the trial court to enter an immediate default
judgment for removal of Tenant. We treat Landlord’s petition as an appeal of
a non-final order determining entitlement to immediate possession of
property, over which we have appellate jurisdiction. See footnote 1, supra.
For the following reasons, we reverse the trial court’s January 13, 2021 order
and remand for the trial court to conduct an emergency hearing on, and to
adjudicate, Landlord’s October 22 motion.
II. Analysis
At the outset, we note that the trial court faced a difficult task in this
case considering the complement of evolving state and federally imposed
moratoria on evictions occasioned by the COVID-19 pandemic. We
8
conclude, though, that once the Executive Order expired, 8 and after the trial
court determined that the CDC moratorium was inapplicable, in order to
avoid absolute waiver of his defenses and an entry of an immediate default
judgment for removal, Tenant was required to pay rent as required by section
83.60(2). Section 83.60(2) is not discretionary; it compels a tenant defending
against an eviction to pay into the court registry either (i) the amount of rent
alleged to be due, or (ii) the amount of rent determined by the court, plus all
rent that accrues during the case’s pendency. See Stanley v. Quest Int’l Inv.,
Inc., 50 So 3d 672, 673 (Fla. 4th DCA 2010); First Hanover v. Vazquez, 848
So. 2d 1188, 1190 (Fla. 3d DCA 2003). The only exception to this express
statutory requirement is if the tenant interposes a defense of payment –
which Tenant did not do in this case.
Hence, in order to give effect to the statute, when a tenant facing
eviction raises any defenses to an eviction (other than payment of rent), and
files a motion seeking a determination of rent due, the trial court is required
to make that rent determination as quickly as possible; any delay in making
8
While we need not reach the issue, we do note that, pursuant to the
express language of the Executive Order’s section 2(C), once the trial court
dismissed Count I of Landlord’s complaint, arguably the Executive Order
may not have applied to this case. After dismissal of Count I, the only
remaining eviction count, Count III, sought eviction based on Landlord’s
termination of the month-to-month tenancy, an eviction claim unrelated to
non-payment of rent.
9
that rent determination thwarts the statute’s purpose of requiring a tenant to
continue to pay rent while defending against an eviction action. Stanley, 50
So. 3d at 674 (noting that the Florida Legislature’s use of the terms “absolute
waiver” and “immediate judgment” demonstrated that the “Legislature was
comprehensive in its intentions as to the effect of the statute” (quoting Quest
Int’l Inv. v. Stanley, 16 Fla. L. Weekly Supp. 586b (Fla. Broward Cnty. Ct.
Apr. 14, 2009))); First Hanover, 848 So. 2d at 1190 (“Under this provision,
tenants in actions for possession for non-payment of rent are obligated to
pay rent as a condition to remaining in possession irrespective of their
defenses and counterclaims.”).
To ensure compliance with the statute, it was incumbent upon the trial
court to adjudicate Landlord’s October 22 motion as soon as practicable. The
trial court should have determined the amount of rent due, and, consistent
with section 83.60(2), entered an order forthwith, requiring Tenant to pay all
10
accrued past-due rent 9 as well as ongoing rent. 10 For these reasons, we
reverse the trial court’s January 13, 2021 order and remand for the trial court
to conduct, on an expedited basis, a hearing on Landlord’s October 22
motion and enter an order consistent with the instructions below.
III. CONCLUSION
Because Tenant did not interpose a defense of payment, once the
Executive Order expired, and there being no basis for applying the CDC
order, Tenant was obligated to deposit both accrued and accruing rent in the
court registry. We, therefore, reverse the trial court’s January 13, 2021 order
9
We note that, pursuant to its express language, the Executive Order merely
temporarily suspended “final action at the conclusion of an eviction
proceeding” – i.e., issuance of a writ of possession – and did not indefinitely
suspend rent obligations. Indeed, section 3 of the Executive Order reads, in
its entirety, as follows: “Nothing in this Order shall be construed as relieving
an individual from his or her obligation to make mortgage payments or rent
payments. All payments, including tolled payments, are due when an
individual is no longer adversely affected by the COVID-19 emergency.”
(Emphasis added).
10
It does not appear that Tenant disputes the rent amount alleged in
Landlord’s complaint. Nevertheless, because the statute contemplates that
the trial court – rather than this Court – make such determination, our remand
instructions require the trial court to make the determination in the first
instance. Importantly, though, the trial court’s inquiry in this regard is limited
to whether Landlord has accurately alleged the amount of rent, and does not
include whether, based on the merits of any defense or counterclaim to
Landlord’s eviction action, the statutory requirement can be delayed or
waived.
11
and remand for the trial court to, within five days of the date of this opinion,
adjudicate Landlord’s October 22 motion consistent with the dictates of this
opinion. 11 Tenant shall then have five days (excluding Saturdays, Sundays,
and legal holidays) to pay into the court registry all accrued past-due rent as
well as ongoing rent, failing which, as provided by section 83.60(2), Landlord
will be entitled to an immediate default judgment for removal of Tenant with
a writ of possession to issue without further notice or hearing.
This opinion shall take effect immediately, notwithstanding the filing or
disposition of any motion for rehearing.
Reversed, and remanded with instructions.
11
On May 13, 2021, Landlord filed in this Court another petition for writ of
mandamus – appellate case number 3D21-1115 – arguing that the trial court
should be compelled to enter an immediate default judgment for removal.
We consolidated that petition with this case for the purposes of traveling
together and being heard by the same panel. Given our ruling in this case
(3D21-190), we now dismiss that petition (3D21-1115) as moot.
12