Opinion
Nos. 98-2201, 99-164.
Opinion filed September 29, 1999. Rehearing Denied November 3, 1999.
Appeals from the Circuit Court for Dade County, Bernard Shapiro, Judge, L.T. No. 97-16666.
Rasco, Reininger Perez and Steven R. Reininger and Howard R. Behar for Ready State Bank.
Kwitney, Kroop Scheinberg and Richard Kroop; Langbein Langbein and Evan J. Langbein, for Barry D. Meiselman.
Before SCHWARTZ, C.J., and COPE and LEVY, JJ.
Ready State Bank held a mortgage on a long-term leasehold granted to the Appels, the tenants, by the fee-owner landlord, Meiselman. Because of numerous defaults, the lease was canceled below in a ruling about which the bank does not complain. It does contend, however, in case number 98-2201, that the trial court erred in failing to grant its application to succeed to the contractual rights of the tenants under a so called "pickup" lease, see 1 Milton R. Friedman, Friedman on Leases § 7.801, at 451 (4th ed. 1997), as provided by the parties' mutual agreement. We disagree and affirm simply because there is ample evidence to support the conclusion that the "Lender," Ready, did not, as required, "[diligently pursue] . . . the cure of any default under the Lease that [it was] reasonably capable of curing." In this state of the record we cannot, of course, interfere with the decision below. Westerman v. Shell's City Inc., 265 So.2d 43 (Fla. 1972); Home Ins. Co. v. Mendelson, 367 So.2d 1071 (Fla. 3d DCA 1979).
The provision in question stated:
Lender (or it its designee, as the case may be), shall cure any default in the payment of any rentals, amounts or fees owing under the Lease within the cure period hereinabove prescribed and shall continue to pay such rentals, amounts or fees as and when the same become due and payable, and Lender diligently proceeds to cure any default that Lender is reasonably capable of curing. If, notwithstanding Lender's payment of all rents due and the Lender's diligent pursuit of the cure of any default under the Lease that Lender is reasonably capable of curing, the Lease is terminated for any reason whatsoever, then, in such event, at the option of Lender, Lessor will enter into a new lease with Lender or Lender's designee upon terms and conditions identical to those in the Lease for the full remaining term of the Lease and any extensions thereof. [e.s.]
Meiselman separately argues in case number 99-164 that the expenses of the receivership imposed on the leasehold should have been taxed as costs against the bank. We find no error in this ruling. D.S. Ware Co. v. Green, 696 So.2d 959 (Fla. 1st DCA 1997); Barredo v. Skyfreight, Inc., 430 So.2d 513 (Fla. 3d DCA 1983).
Affirmed.