DJD Inv. of Fla. v. W - ACQ. Vacation Rentals N. Am.

381 So.3d 684

DJD INVESTMENTS OF FLORIDA II, LLC, a Florida limited liability company, and Cottondale Investments of Florida II, LLC, a Florida limited liability company, Petitioners,

v.W - ACQ. VACATION RENTALS NORTH AMERICA, LLC, a Delaware limited liability company, Respondent.

No. 1D2022-1811

District Court of Appeal of Florida, First District.

March 13, 2024

Petition for Writ of Certiorari—Original Jurisdiction.

Lindsey Lawton of Lawton Law, PLLC, Tallahassee, for Petitioners.

Frances G. De La Guardia of Holland & Knight, LLP, Miami, and Joshua R. Levenson and Suzanne M. Aldahan of Holland & Knight, LLP, Fort Lauderdale, for Respondent.

Kelsey, J.

Petitioners seek our certiorari review of the trial court’s order dismissing their counterclaim in a commercial landlord-tenant dispute. Petitioners are the Landlords, while Respondent is the Tenant. Landlords assert that we have certiorari jurisdiction because the trial court’s ruling has the potential to deprive them of their preferred measure of damages. We dismiss the petition for lack of certiorari jurisdiction, and set forth the context in some detail because it informs the jurisdictional question.

Tenant vacated the leased premises with a few days remaining in the original twenty-year lease term and ten years remaining in an extended lease term that a predecessor-in-interest had exercised. Tenant claimed justification to revoke the lease extension and vacate the premises because the Landlords allegedly had improperly failed to complete a full roof-replacement after roof leaks were merely repaired for several years beginning in 2017. As Tenant was aware, Landlords had been trying to secure a roof-replacement contract for some time (during COVID). Landlords got the roof replacement contract about a month before the original lease term ended, and so advised Tenant. But Tenant vacated the premises anyway, considering the Landlords’ efforts "too little, too late."

Tenant filed a declaratory-judgment action two days before the end of the original lease term, seeking a ruling on whether it had the right to revoke the previously exercised ten-year lease extension. In the second count of the complaint, Tenant sued in the alternative for breach of contract damages including rent paid while the building was allegedly untenantable, costs of moving out, and attorneys’ fees and costs. The prayer for relief requested as an alternative that the court terminate the lease and award compensatory damages.

Landlords answered, denying that Tenant had any right to revoke the already-renewed ten-year lease extension. Landlords also counterclaimed for damages, including unpaid rent beginning in December of 2021 and continuing through the remaining ten-year-extended lease term.

Tenant moved to dismiss the counter-claim in its entirety, arguing in pertinent part that Landlords had failed to "resume possession and re-lease or rent" the building, which Tenant argued was required under the damages terms of the lease, which provide as follows:

18. If any rent required by this lease is not paid by the beginning of the following month, LESSOR has the option to:

(a) Terminate this lease, resume possession of the leased property for his own account, and recover immediately from LESSEE, the balance of the Lease amount due for the remainder of the term, of the Lease.

(b) Resume possession and re-lease or rent the property for the remainder of the term for the account of LESSEE, and recover from LESSEE, at the time each payment of rent comes due under this lease, the difference between the rent specified in the lease and the rent received on the re-leasing or renting. In either event LESSOR may also recover all expenses incurred by reason of the breach, including reasonable attorney’s fees, whether or not suit may be filed, and if so, at trial and upon appeal.

After a hearing, the trial court granted the motion to dismiss the Landlords’ counterclaim, specifying that the flaw lay solely in the claim for damages, thus:

5. Defendants have twenty (20) days from the date of this Order to file an Amended Counterclaim, if they so choose, for breach of the Lease based on the non-payment of rent. If Defendantsfile an Amended Counterclaim for breach of the Lease based on the non-payment of rent, then Defendants’ Amended Counterclaim must explicitly assert what remedy, either Lease Section 18(a) or Lease Section 18(b), Defendants are attempting to state a claim for breach of the Lease based on the non-payment of rent. The Court is not deciding at this time whether Lease Section 18(a) or Lease Section 18(b) are enforceable provisions under Florida law.

Landlords did not attempt to amend their prayer for relief, but rather moved for reconsideration. They argued that, notwithstanding the damages clauses in the lease, they retained the common-law right to sue for nonpayment of rent each time it comes due, without retaking possession or terminating the tenancy. We have no transcript of the pertinent hearing, and the trial court denied reconsideration in an unelaborated order.

Because Landlords have not demonstrated that the harm alleged cannot be remedied on appeal, we lack certiorari jurisdiction and must dismiss. To be sure, we have constitutional authority to issue writs of certiorari. See Art. V, § 4(b)(3), Fla. Const. We also have certiorari jurisdiction over...