DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
34TH STREET, LLC,
Appellant,
v.
PRO-KARTING EXPERIENCE, INC.,
Appellee.
No. 2D22-3139
March 22, 2024
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Pinellas County; Thomas M. Ramsberger, Judge.
Walter Sowa, III, of The Law Office of Walter Sowa, III, P.L., Bradenton,
for Appellant.
Jason S. Lambert and Tyler C. Troyer of Hill, Ward & Henderson, P.A.,
Tampa (withdrew after briefing); Jay L. Farrow of Farrow Law, P.A., Coral
Gables (substituted as counsel of record), for Appellee.
KHOUZAM, Judge.
In this ongoing landlord/tenant dispute, Landlord 34th Street, LLC,
timely appeals an order invalidating a writ of possession that had been
entered in its favor against Tenant Pro-Karting Experience, Inc. On
appeal, Landlord frames one narrow issue:
[A] trial court has a ministerial duty to issue an immediate
default against a tenant pursuant to Florida Statue [sic]
83.232 when a tenant has failed to deposit rents in the Court
Registry after being ordered to, and a failure by the tenant to
deposit rents not only acts as a waiver of the tenant's
defenses, but affords the landlord the absolute right to an
immediate default and writ of possession, ex parte, with no
valid exceptions, equitable or statutory available to the
tenant.
(Emphasis added.) However, because Tenant was not previously ordered
to deposit monies into the court registry, no such duty arose here under
the plain language of section 83.232(5), Florida Statutes (2022). Thus,
we affirm.
Background
The parties originally entered into a commercial lease agreement in
2015. Since 2019, they have been litigating various issues in several
different lawsuits in both the trial and appellate courts.
We need not recount much of the contentious litigation between
these parties. Relevant here, Tenant answered Landlord's complaint for
eviction and damages, disputing the amount claimed by Landlord and
asserting several affirmative defenses including payment and acceptance
of rent. After a hearing for which no transcript has been provided, the
trial court granted partial summary judgment for Landlord. The
summary judgment order expressly commands: "The Defendant Tenant
shall pay the Plaintiff Landlord $104,409.75, plus monthly interest of
$1,149.60 on or before June 10, 2022." (Emphasis added.) The order
does not mention any court registry, much less direct any payment into
one. Tenant moved for rehearing of the ruling.
While Tenant's rehearing motion was pending, Landlord filed a
motion for contempt, eviction, and entry of judgment for failure to pay
pursuant to the summary judgment order. Landlord's motion expressly
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sought "an immediate writ of eviction" pursuant to section 83.232.
Tenant responded opposing the motion and, later, filed an emergency
motion to stay issuance of any writ of possession.
Shortly thereafter, the trial court entered a writ of possession in
favor of Landlord. The following day, Tenant filed a petition for writ of
certiorari to this court and deposited monies into the court registry. This
court issued an order granting a provisional stay of the writ of possession
until the trial court formally ruled on Tenant's motion to stay.
Ultimately, the trial court granted Tenant's motion. The order
acknowledges that, whereas Tenant had not paid the ordered amount to
Landlord or to the court registry by the time the writ of possession had
issued, Tenant had now deposited an appropriate amount into the court
registry. The court accordingly invalidated the writ of possession on the
basis that Tenant's payment of the disputed monies into the court
registry "effectively complies with Florida Statute 83.232 and saves the
day." Landlord timely appealed this nonfinal order.
Analysis
Landlord's appellate argument is extremely narrow. Specifically,
Landlord asserts (1) that the trial court ordered Tenant in the summary
judgment order to pay monies into the court registry and (2) that
Tenant's failure to timely comply waived all of Tenant's defenses under
section 83.232(5), thereby entitling Landlord to an immediate writ of
possession.
The subsection Landlord relies upon provides in full:
(5) 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.
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(Emphasis added.) Thus, the statute's plain language specifies that the
tenant's failure "to pay the rent into the court registry pursuant to court
order" is what triggers the "absolute waiver of the tenant's defenses,"
entitling the landlord to "immediate default for possession." Id.
The problem for Landlord is that, contrary to the only argument it
has raised in this appeal, the summary judgment order simply does not
direct Tenant to pay any monies into the court registry. Rather, it
expressly orders Tenant to pay the disputed monies directly to Landlord.
And the parties have not identified any other order directing payment
into the court registry. Thus, under the plain language of section
83.232(5), the absolute waiver of defenses was never triggered,
precluding Landlord's resulting entitlement to immediate possession.
To dispense here with this express legislative precondition would
effectively render the statutory language "into the court registry" a
nullity. This court must instead endeavor to give meaning and effect to
all of the words in the statute. See, e.g., Larimore v. State, 2 So. 3d 101,
106 (Fla. 2008) (acknowledging "the 'elementary principle of statutory
construction that . . . words in a statute should not be construed as
mere surplusage' " (quoting Gulfstream Park Racing Ass'n v. Tampa Bay
Downs, Inc., 948 So. 2d 599, 606 (Fla. 2006))).
Below, Landlord acknowledged that the summary judgment order
does not, in fact, direct payment into the court registry, contending that
the absence of such a directive is irrelevant. On appeal, however,
Landlord has declined to raise this argument. Instead, contrary to its
concession below, Landlord simply maintains in this court that the
summary judgment order does order payment into the court registry,
citing authorities addressing the failure to do so under such an order.
Thus, having advanced only this meritless contention, Landlord has
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abandoned any argument that the absence of an order directing the
monies paid into the court registry is irrelevant.1 See, e.g., Bath Club
Ent., LLC v. Residences at Bath Club Maint. Ass'n, 355 So. 3d 999, 1001
n.3 (Fla. 3d DCA 2023) ("[I]t is well settled that if an appellant fails to
raise an argument in its initial brief, that argument is deemed
abandoned." (citing Gen. Mortg. Assocs. v. Campolo Realty & Mortg. Corp.,
678 So. 2d 431, 431 (Fla. 3d DCA 1996))). As Landlord has failed to
demonstrate reversible error below, we affirm.
Affirmed.
SLEET, C.J, and SMITH, J., Concur.
__________________________
Opinion subject to revision prior to official publication.
1Although we do not reach this issue, we note that, even if it were
properly before us, it would not necessarily dictate a different result.
Below, Landlord relied upon two authorities in this regard: Blandin v.
Bay Porte Condominium Ass'n, 988 So. 2d 666 (Fla. 4th DCA 2008), and
Chartier v. Sherman, 672 So. 2d 604 (Fla. 3d DCA 1996). In both cases,
the parties stipulated to payment directly to the landlords rather than
into the court registry as otherwise contemplated by the statute. See
Blandin, 988 So. 2d at 667 ("The trial court also ordered, pursuant to the
parties' stipulation, that the unit owners would pay the rent directly to
Blandin or Blandin's counsel rather than into the court registry.");
Chartier, 672 So. 2d at 604 ("However, pursuant to a stipulation between
the attorneys, the parties agreed that payments would be paid directly to
the landlord. The tenant, Chartier, failed to abide by the terms of the
stipulated agreement and, after notice, the trial court entered a default
as permitted by §83.232(5)."). Here, however, the parties have not
suggested that there exists any kind of stipulation to that effect. Nor
have they submitted a transcript of the summary judgment hearing that
might illuminate such an assertion.
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