FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D22-1147
LT Case No. 2021-CA-000669
_____________________________
T.G. UNITED, INC., AND MENTAL
TOUGHNESS TRAINING CENTER,
LLC,
Appellants,
v.
AADD PROPERTIES, LLC,
Appellee.
_____________________________
On appeal from the Circuit Court for Hernando County.
Pamela Stinnette Vergara, Judge.
Mahra Sarofsky, of Ward Damon, PL, West Palm Beach, for
Appellant.
George L. Sigalos and Damon E. Gasser, of Simon & Sigalos, LLP
Boca Raton, for Appellee.
September 22, 2023
PRATT, J.
Section 83.232(5), Florida Statutes (2022), provides that
during the pendency of a nonresidential eviction action, “[f]ailure
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,” and “the landlord is entitled to an immediate default for
possession without further notice or hearing thereon.” This appeal
presents the question whether breach of an order requiring
payment of rent through a lawyer’s trust account or directly to the
landlord—rather than into the court registry—can form the basis
for this statutory default-for-possession procedure. Under the
statute’s plain language, it cannot. Therefore, we reverse the trial
court’s entry of default and final judgment of eviction, and we
remand this case for further proceedings.
I.
In February 2021, T.G. United, Inc. (“Tenant”) and AADD
Properties, LLC (“Landlord”) entered into a commercial lease
agreement for two properties. Mental Toughness Training Center,
LLC (“Guarantor”) signed the lease agreement as guarantor.
Under the agreement, rent was due “no later than the first day of
each calendar month.”
In July 2021, Landlord notified Tenant that it was in arrears
for $28,647.25 in unpaid rent and sales tax. Landlord gave notice
that it was terminating the lease, and it instructed Tenant to
surrender the leased premises. Landlord then filed suit against
Tenant and Guarantor, asserting the following claims: unlawful
entry and unlawful detainer against Tenant (Count I);
nonresidential eviction against Tenant (Count II); holdover rent
damages against Tenant and Guarantor (Count III); and damages
against Guarantor (Count IV).
Tenant and Guarantor answered the complaint and asserted
several affirmative defenses. They then filed a motion to determine
rent, in which they asserted that they had been paying rent to
Landlord’s lenders as had “become the customary course of dealing
for the parties,” and they were “prepared to pay into the court
registry the amount of rent as determined by the Court.”
After a hearing on the motion, the court entered an order
determining rent. The Court noted that Tenant and Guarantor had
paid rent for September and October 2021 to their counsel’s trust
account. It ordered them to “continue paying rent in the monthly
amount of $15,000 (plus tax) through [that] trust account.” Three
2
days later, Landlord moved to release the September and October
2021 rent payments and to require that future rent payments be
disbursed to Landlord.
On December 3, 2021, over Tenant’s and Guarantor’s
opposition and after a hearing, the court granted Landlord’s
motion for disbursement. The court found that “it would be a
hardship for [Landlord] not to receive the rental payments which
were previously being paid directly to the mortgage company.” The
court ordered that “Defendant (and or defense counsel) shall
ensure that the previously ordered rental payments . . . are timely
received by [Landlord]. This may be accomplished through the
trust account of counsel for the Defendants or via direct payments
to [Landlord].”
On April 6, 2022, Landlord moved for immediate default for
possession under section 83.232(5), noting that the April 2022 rent
payment did not arrive by April 1 and therefore was not timely
received under the court’s December 3, 2021 order. Tenant and
Guarantor opposed the motion. On the law, they argued that the
immediate default procedure of section 83.232(5) applies only
when a court order directs a tenant to pay rent into “the court
registry,” and here, the court had instead ordered Tenant to make
payments either to its lawyer’s trust account or to Landlord
directly. On the facts, they argued that the April 2022 rent
payment was timely under the “mailbox rule” because it was
mailed on March 30, 2022. Landlord conceded that the payment
arrived on April 7, 2022, but Landlord promptly rejected and
returned it as untimely.
On May 3, 2022, the trial court entered a default and final
judgment of eviction after default, disposing of Count II of the
complaint. The court found that because Landlord did not receive
the April 2022 rent payment by April 1, Tenant had failed to
comply with its December 3, 2021 order disbursing rent. The court
then concluded that this noncompliance triggered the statutory
immediate default procedure, and Landlord was thus entitled to
an immediate default for possession without further notice or
hearing. On May 4, the court issued writs of possession for the
leased properties, and the following day, Tenant entered
bankruptcy proceedings.
3
Tenant and Guarantor timely appealed the trial court’s order
of default and final judgment of eviction after default. 1 They also
unsuccessfully sought stays of the writs of possession. We have
jurisdiction. 2
II.
On appeal, Tenant raises arguments regarding the
interpretation of both section 83.232(5) and the trial court’s
December 3, 2021 order. Both of those interpretive issues present
questions of law, and we review de novo the trial court’s resolutions
of those legal questions. See State v. Ingram, 299 So. 3d 546, 547
(Fla. 5th DCA 2020) (“[S]tatutory interpretation is . . . subject to
de novo review.”); McCann v. Walker, 852 So. 2d 366, 367–68 (Fla.
5th DCA 2003) (per curiam) (applying de novo review to determine
the legal operation and effect of a court order).
III.
Tenant first argues that mailing the April 2022 rent payment
on March 30, 2022, sufficed to achieve compliance with the trial
court’s December 3, 2021 order. Tenant is incorrect. The order
directed it to “ensure that” the rental payments were “timely
received by” Landlord; in other words, to ensure that Landlord
“received” rental payments by the first of each month. This
language ties the timeliness of payment to Landlord’s receipt of the
payment, and it precludes the “mailbox” interpretation of the order
1 Landlord argues that Guarantor lacks standing to appeal the
final judgment of eviction. Landlord is correct. Because Guarantor
was not named as a defendant in Count II of the complaint, and
because the order on appeal granted relief only against Tenant,
Guarantor is not a proper party to this appeal. We thus dismiss
Guarantor as a party to this appeal. See Fla. Indus. Power Users
Grp. v. Graham, 126 So. 3d 1056 (Fla. 2013).
2 The parties inform us that the U.S. Bankruptcy Court for the
Middle District of Florida entered an order granting limited relief
from the automatic bankruptcy stay for Tenant to prosecute this
appeal and seek relief from the trial court’s writs of possession.
4
that Tenant urges us to adopt. We thus discern no error in the trial
court’s conclusion that Tenant breached its order.
IV.
Because Tenant breached the trial court’s December 3, 2021
order, we must decide whether that breach triggered section
83.232(5)’s immediate default for possession. The plain language
of the statute compels us to conclude that it did not.
A.
Section 83.232 establishes a procedure for payment of rent
during the pendency of a commercial landlord’s claim for
possession. In subsection (1), the statute provides:
In an action by the landlord which
includes a claim for possession of real
property, the tenant shall pay into the
court registry . . . such amount as is
determined by the court, and any rent
accruing during the pendency of the
action, when due, unless the tenant has
interposed the defense of payment or
satisfaction of the rent in the amount the
complaint alleges as unpaid. . . . Even
though the defense of payment or
satisfaction has been asserted, the court,
in its discretion, may order the tenant to
pay into the court registry the rent that
accrues during the pendency of the action,
the time of accrual being as set forth in the
lease. If the landlord is in actual danger of
loss of the premises or other hardship
resulting from the loss of rental income
from the premises, the landlord may apply
to the court for disbursement of all or part
of the funds so held in the court registry.
§ 83.232(1). In subsections (3) and (4), the statute further provides
that “[t]he court, on its own motion, shall notify the tenant of the
requirement that rent be paid into the court registry by order,
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which shall be issued immediately upon filing of the tenant’s initial
pleading, motion, or other paper,” and “[t]he filing of a
counterclaim for money damages does not relieve the tenant from
depositing rent due into the registry of the court.” § 83.232(3)–(4).
Finally, in subsection (5), the statute specifies a remedy for
the tenant’s noncompliance: immediate default for possession.
Under that subsection, “[f]ailure 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,” and “the landlord is
entitled to an immediate default for possession without further
notice or hearing thereon.” § 83.232(5).
B.
“[T]he text and structure of the relevant statute[ ]—and no
other considerations—control our resolution of this appeal.”
Burton v. Oates, 362 So. 3d 311, 320 (Fla. 5th DCA 2023) (Pratt,
J., concurring in part and concurring in result); accord Taylor v.
Nicholson–Williams, Inc., Nos. 5D22-1410, 5D22-1557, 48 Fla. L.
Weekly D1434 (Fla. 5th DCA July 21, 2023) (“To referee this
debate, we focus our attention on the statutory text and
structure.”). This “supremacy-of-the-text principle,” which we are
bound to apply, Ham v. Portfolio Recovery Associates, LLC, 308 So.
3d 942, 946 (Fla. 2020), leads us to conclude that breach of an order
requiring payment of rent through a lawyer’s trust account or
directly to the landlord does not trigger section 83.232(5)’s
immediate default for possession.
Section 83.232(5) unequivocally makes its immediate default
hinge on “[f]ailure of the tenant to pay the rent into the court
registry pursuant to court order.” (emphasis added). To state the
obvious, a private attorney’s trust account is not “the court
registry.” Neither is a landlord’s account. While the terms “court
registry” and “registry of the court” are not defined anywhere in
section 83.232, they carry a clear, ordinary meaning: the
depository held and controlled by the court and its staff. Indeed,
other statutes that speak of “the court registry” or “the registry of
the court” make plain that the terms describe the depository held
and controlled by the court. See, e.g., § 28.24(11), Fla. Stat. (2023)
(directing circuit court clerks to assess certain service charges
“[f]or receiving money into the registry of court”); § 73.111, Fla.
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Stat. (2023) (noting that when a post-judgment deposit is made
“into the registry of the court,” it will prompt “the clerk’s certificate
that the compensation has been paid into the court”); § 717.113,
Fla. Stat. (2023) (categorizing as “[p]roperty held by courts and
public agencies” the “money held in the court registry and for
which no court order has been issued to determine an owner”).
“[O]ur task is to interpret the law according to the ordinary
meaning it conveys to the public at the time” it was enacted.
Taylor, 2023 WL 4670253, at *7 n.3. It stretches all credulity to
assert that members of the public ever have understood the term
“court registry” to encompass attorneys’ and landlords’ own
accounts. This is especially evident when contrasting section
83.232 with other statutes in which the Legislature has chosen to
allow for rent or other monies to be paid outside the court registry.
For example, section 697.07(5), Florida Statutes (2023), governs
assignment of rents during the pendency of foreclosure actions.
The statute provides: “[I]n a foreclosure action, and
notwithstanding any asserted defenses or counterclaims . . . , a
court of competent jurisdiction, pending final adjudication of any
action, may require the mortgagor to deposit the collected rents
into the registry of the court, or in such other depository as the
court may designate.” Id. (emphasis added). As another example,
section 61.18, Florida Statutes (2023), directs that sureties on
defaulted alimony and child-support bonds “shall be ordered to pay
into the registry of court, or to any party the court may direct, the
sum necessary to cure the default.” (emphasis added). Section
83.232 contains no similar allowance for payments outside the
court registry, and we cannot add one by judicial gloss. See Burton,
362 So. 3d at 316 (declining to add language to a statute).
In sum, section 83.232(5)’s immediate default is triggered only
by a “[f]ailure of the tenant to pay the rent into the court registry
pursuant to court order,” and because a landlord’s or private
attorney’s account is not “the court registry,” Tenant’s breach of
the trial court’s December 3, 2021 order did not trigger section
83.232(5)’s immediate default for possession.
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C.
Landlord offers various reasons why we should depart from
the statute’s plain language. None of Landlord’s arguments is
persuasive.
First, Landlord argues that the trial court had authority to
modify the statutory procedure to direct payment to accounts other
than the court registry. The problem with this argument is that
each time the statute speaks of a tenant’s rent payments, it
provides that those payments “shall” or “must” be made “into the
court registry.” See § 83.232(1). This language is mandatory, not
permissive. Moreover, as we explain above, unlike several other
statutes, section 83.232 does not contain language authorizing the
court to direct payments outside the court registry. This omission
is particularly striking when we consider that the statute does
allow the court to modify the statutory procedure in certain other
ways—for example, by allowing the court to extend certain time
periods for making payments. See § 83.232(1). Had the Legislature
chosen to allow the court to similarly modify where the rent
payments are sent, held, and disbursed from, it would have
included language to that effect. Instead, the statute describes the
tenant’s obligation to make payments into the court registry as a
“requirement,” and it directs the court to “notify the tenant of the
requirement.” § 83.232(3).
Modifying the statutory procedure to provide for payments
through an attorney’s trust account or directly to the landlord may
or may not be sound policy. But amending the statute “is the
Legislature’s prerogative, not ours.” Burton, 362 So. 3d at 316. “[A]
court ‘may not rewrite the statute or ignore the words chosen by
the Legislature so as to expand its terms.’” Id. (quoting State v.
Gabriel, 314 So. 3d 1243, 1248 (Fla. 2021)).
Second, Landlord appeals to the evident purpose behind
section 83.232(5): “to remedy the problem of commercial tenants
remaining on the premises for the duration of litigation without
paying the landlord rent.” Premici v. United Growth Properties,
L.P., 648 So. 2d 1241, 1243 (Fla. 5th DCA 1995). But the
Legislature enacts bills, not generalized purposes, and a law is not
a spirit disembodied from its letter. Rather, a law consists only of
the text that underwent the constitutionally prescribed
8
bicameralism and presentment procedures. See Art. III, §§ 7–8,
Fla. Const. We have no authority to inject ourselves into that
legislative process by re-writing a statute based on our speculation
about its purpose. “[N]o legislation pursues its purposes at all
costs.” Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (per
curiam). “Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is the very
essence of legislative choice—and it frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be the law.”
Id.
Regardless, we do not think that honoring section 83.232(5)’s
plain meaning frustrates the purpose that we attributed to the
statute in Premici. Requiring compliance with the statutory
procedure does not turn a blind eye to tenants who remain in
possession during the litigation while withholding rent. It simply
requires that rent be paid in the manner—and any default be
entered under the circumstance—that the statute prescribes.
Third, Landlord argues that Tenant consented to the trial
court’s modification of the statutory procedure and thus waived its
right to object to the immediate default for possession. As an initial
matter, Tenant certainly did not invite the error. In its motion to
determine rent, Tenant represented that it was “prepared to pay
into the court registry the amount of rent as determined by the
Court,” thus asking the court to direct payments into the court
registry. Landlord nevertheless observes that before its tardy April
2022 rent payment, Tenant had paid rent into its counsel’s trust
account and later to Landlord directly, as the court had ordered it
to do, and it did so without challenging the trial court’s authority
to direct payments outside the court registry.
We are not convinced by this “in for a penny, in for a pound”
conception of waiver. “‘Waiver’ is the voluntary and intentional
relinquishment of a known right or conduct [that implies] the
relinquishment of a known right.” Kirschner v. Baldwin, 988 So.
2d 1138, 1142 (Fla. 5th DCA 2008). That Tenant complied with the
court’s uninvited directives to make payments outside the court
registry does not mean that it voluntarily and knowingly conceded
the court’s authority to enter an immediate default for possession.
9
And indeed, Tenant did not sit on its rights when it became clear
that it faced default. In opposing Landlord’s motion for default,
Tenant argued that section 83.232(5)’s automatic default for
possession is triggered only by a failure to pay court-ordered rent
into the court registry. Therefore, Tenant timely raised and
preserved the argument that it now presses on appeal.
Fourth, Landlord argues that K.D. Lewis Enterprises Corp. v.
Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984), forecloses Tenant’s
argument, but we think Landlord overreads our precedent. In
K.D., we analyzed the parallel statute for residential tenancies,
§ 83.60(2), Fla. Stat. (1981). The K.D. landlord had “moved to
require the tenants to deposit the rent into the registry of the
court,” and “[w]hen [the tenants] failed to do so, the court issued
writs of possession.” K.D., 445 So. 2d at 1033. On appeal, the K.D.
tenants argued that because they asserted counterclaims against
the landlord, the case was no longer an “action for possession”
under the statute, and they thus had no statutory obligation to
continue rent deposits and “were entitled to stay in their
apartments without paying rent and without depositing the rent
into the registry of the court.” Id. at 1035. We rejected that
argument and held that a tenant’s assertion of counterclaims
against the landlord does not make the case cease to be an action
for possession. See id.
K.D. did not hold—and could not hold—that breach of an order
directing payment directly to the landlord triggers an immediate
default for possession. That’s because the court order at issue in
K.D. had directed payment into the court registry. Nonetheless,
Landlord seizes on K.D.’s statement in passing that a tenant “loses
only his right to retain possession of the premises if he fails to pay
the rent to the landlord or into the registry of the court.” Id. Even
putting aside that it’s dicta, at most, this brief statement in K.D.
might imply only the more limited proposition “that payment of
rent to the landlord obviates the need to deposit funds into the
court registry.” Ross v. Metro. Dade Cnty., 142 B.R. 1013, 1017
(S.D. Fla. 1992), aff’d without opinion, 987 F.2d 774 (11th Cir.
1993). That a tenant’s payment of rent directly to the landlord
might obviate the need for him to make payments into the court
registry does not mean a court may order him to make such direct
10
payments and then enter an immediate default for possession
when he breaches that order.
Fifth, Landlord calls to our attention several decisions of our
sister courts. Upon close inspection, we do not believe that those
decisions conflict with our reading of section 83.232(5).
In Chartier v. Sherman, the Third District found no departure
from the essential requirements of the law where the parties had
stipulated that payments would be made directly to the landlord,
the tenant failed to abide by the terms of the stipulated agreement,
and the trial court entered a default for possession “after notice.”
672 So. 2d 604, 604 (Fla. 3d DCA 1996) (per curiam). We perceive
no direct conflict because Chartier rejected a certiorari petition
rather than an appeal, Chartier did not elaborate the basis on
which the tenant had sought certiorari relief, and Chartier
involved a stipulated order. By contrast, the trial court here
entered its order upon an opposed motion to disburse rent, and
Tenant thus has not invited—or otherwise waived its right to
challenge—the order’s noncompliance with the statute.
In Blandin v. Bay Porte Condominium Ass’n, Inc., the Fourth
District confronted “the question of whether section 83.232,
Florida Statutes, allows a trial court the discretion to excuse a
tenant’s failure to pay rent timely pursuant to court order.” 988 So.
2d 666, 667 (Fla. 4th DCA 2008). That question is wholly distinct
from the one that we address today. While it is true that the
Blandin trial court had “ordered, pursuant to the parties’
stipulation, that the [tenants] would pay the rent directly to [the
landlord or the landlord’s] counsel rather than into the court
registry,” id., and that a breach of this order formed the basis for
the default that the Fourth District affirmed, the Fourth District’s
opinion did not address any argument against the pay-the-
landlord-directly nature of the order. And in any event, unlike the
Blandin trial court, the trial court here did not provide for
payment directly to the landlord on a stipulation of the parties, but
rather upon an opposed motion for disbursement. That fact alone
would suffice to distinguish Blandin, even if Blandin had
confronted the question that Tenant raises here (which it did not).
In Stetson Management Co. v. Fiddler’s Elbow, Inc., the
Second District reversed a trial court’s order staying a final
11
judgment for possession in favor of a tenant who “did not timely
deposit its monthly rent payment as required by court order.” 18
So. 3d 717, 717 (Fla. 2d DCA 2009). The trial court had granted
the landlord a final judgment for possession, but it nonetheless
stayed the judgment, finding “[g]ood cause” to do so. Id. at 718. The
Second District held that there is no “good cause” exception to the
immediate nature of section 83.232(5)’s default for possession. See
id. (“Under the mandatory terms of section 83.232(5), the trial
court had no discretion to stay the final judgment of possession;
[the landlord] was entitled to immediate possession of the property
upon [the tenant’s] failure to timely deposit its rent payment.”).
That holding does not conflict with our holding here. Landlord
correctly notes that the Stetson trial court’s rent order “reflect[ed]
the parties’ stipulation that . . . all rents . . . shall be deposited into
an interest-bearing account.” Id. But we distinguish Stetson for the
same reasons we distinguish Blandin: Stetson addressed a
question wholly distinct from the one we address today, the Second
District’s Stetson opinion did not address any argument against
the pay-outside-the-court-registry nature of the trial court’s order,
and in any event, the Stetson trial court provided for payment
outside the court registry on the parties’ stipulation.
In the final analysis, we do not think that any of the cases that
Landlord cites decided the precise question that Tenant raises
here. At most, the cases show that some trial courts have a practice
of allowing parties to stipulate that tenants will pay rent to
accounts other than “the court registry” that section 83.232
describes. Unlike in those cases, the order under review did not
rest on a stipulation, and Tenant therefore has preserved its right
to challenge the order’s noncompliance with the statutory
requirements. And while we do not question the intentions behind
the court’s order, we cannot endorse it. The Legislature has
determined that during a nonresidential eviction action, a tenant’s
rent payments “shall” be made “into the court registry,” and only
a “[f]ailure of the tenant to pay the rent into the court registry
pursuant to court order” may trigger section 82.232’s immediate
12
default for possession. § 83.232(1), (5). We have no license to
disturb those legislative choices. 3
IV.
For the foregoing reasons, we REVERSE the trial court’s
order of default and final judgment of eviction after default, and
we REMAND this case for further proceedings consistent with our
opinion.
EISNAUGLE and HARRIS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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3 Because we resolve this appeal on Tenant’s statutory
argument, we need not and do not consider Tenant’s alternative
argument that the immediate default for possession and final
judgment violated its due-process rights. See In re Holder, 945 So.
2d 1130, 1133 (Fla. 2006) (“Of course, we have long subscribed to
a principle of judicial restraint by which we avoid considering a
constitutional question when the case can be decided on
nonconstitutional grounds.”).
13