Opinion
No. 2D06-3324.
Opinion filed February 7, 2007.
Appeal from nonfinal order of the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.
Thomas C. Little of Thomas C. Little, P.A., Clearwater, for Appellant.
Scott C. Ilgenfritz of Johnson, Pope, Bokor, Ruppel Burns, LLP, Tampa, for Appellees.
This is the third appeal in an ongoing dispute between West Seven Seas, Inc., the tenant occupying a commercial property, and Adelaide G. Few, as Personal Representative of the Estate of Beatrice D. Gonzalez, and A Few Tampa Properties, LLC, collectively referred to herein as the landlord. Seven Seas appeals an order that was entered pursuant to a settlement agreement between the parties. We reverse because the order exceeded the relief contemplated by the agreement.
We omit the extended history of this litigation. It suffices to say that in 2002, the parties reached an agreement to settle the matter, and thereafter the circuit court entered an order and an amended order setting forth the terms of the settlement agreement. The agreement permitted Seven Seas to continue occupying the premises under a lease renewal option through January 31, 2005, and to extend the lease for an additional five years if it concluded separate litigation with the City of Tampa. Absent a resolution in that case, Seven Seas was only permitted to occupy the premises through January 31, 2005.
The following two paragraphs of the settlement agreement are most pertinent to this appeal:
7. Count I of the amended counterclaim remains pending. [This was the eviction claim by Gonzalez.] If SEVEN SEAS defaults in the payment of monthly rent or attorney's fee amounts when due, fails to vacate the premises by February 1, 2005, or is otherwise in default, GONZALEZ shall be able to file an affidavit of noncompliance and obtain an ex parte final consent judgment. That final judgment would include eviction relief and a money judgment against SEVEN SEAS for any unpaid rent and any unpaid balance of the attorney's fees and costs.
8. In the event of default or the failure of SEVEN SEAS to timely vacate the premises, any judgment entered by the Court in compliance with the preceding paragraph shall be pursuant to the Settlement Agreement and shall be in the nature of a consent judgment. SEVEN SEAS hereby waives any appeal and any appellate rights with respect to such a judgment.
As the January 31, 2005, deadline approached, Seven Seas mailed a final payment due under the settlement agreement plus an amount for February rent, purportedly pursuant to the five-year lease extension provided for in the settlement agreement. The landlord rejected the notion that there was a lease extension, given that Seven Seas had not concluded its litigation with the City of Tampa.
Seven Seas then filed two suits against the landlord. In mid-February, the landlord wrote to Seven Seas, offering to negotiate a month-to-month or short-term lease. In the absence of such a lease, the landlord declared Seven Seas to be a holdover tenant and demanded double the monthly rent plus applicable sales tax. See § 83.06, Fla. Stat. (2004) (entitling landlord to double monthly rent when tenant refuses to give up possession at lease's end). Based on an appraisal and the purported lease extension, Seven Seas offered to pay an amount less than double rent. By court order, Seven Seas was required to pay the double rent amount into the court registry.
The two pending suits by Seven Seas were consolidated with the underlying suit in this case, and the landlord filed a motion for entry of a consent judgment pursuant to paragraph 7 of the settlement agreement, quoted above. After a show cause hearing, the court entered judgment in the landlord's favor. The court ruled that the landlord was entitled to eviction relief because the condition precedent to Seven Seas' lease extension had not occurred. The court further ruled that Seven Seas' recent claims were without foundation or were legally barred. The landlord was awarded possession of the property, and the court reserved jurisdiction to determine, among other things, the amount due to the landlord for Seven Seas' occupation of the premises after January 31, 2005. On appeal, this court affirmed the consent judgment and its ruling that Seven Seas was a holdover tenant. W. Seven Seas, Inc. v. A Few Tampa Props., LLC, No. 2D05-5458 (Fla. 2d DCA Oct. 27, 2006) (table decision).
Thereafter, the landlord filed a motion and amended motion for a determination of rent, an award of money damages, and disbursement of the funds that Seven Seas had paid into the court registry. In the amended motion, the landlord reasserted its claim for double rent for the period beginning March 1, 2005. (Because the demand for double rent was not made until mid-February 2005, the landlord did not seek double rent for February.) In addition to double rent for 2005, the landlord asked for a slight increase in 2006 and for a three percent annual increase for each year thereafter that Seven Seas remained in possession. The landlord also asked that the court order Seven Seas to maintain a casualty insurance policy at the limits set forth in the expired lease and with the landlord named as loss payee, and to pay every year the proportional share of ad valorem taxes that Seven Seas had been obligated to pay under the lease agreement.
At the hearing and at a rehearing, the landlord sought either double rent or reasonable damages, which were based on testimony regarding the fair market rental value of the property plus insurance and an ad valorem tax contribution. See § 83.07 (allowing landlord to collect reasonable damages for the use and occupation of property when not held by agreement); see also Lincoln Oldsmobile, Inc. v. Branch, 574 So. 2d 1111, 1113 (Fla. 2d DCA 1990) (stating that a landlord's mutually exclusive remedies for a holdover tenant are double rent, a specific amount of continuing rent, or possession of the property plus damages).
In its amended order, the circuit court established a schedule of increasing rent payments, with credit for the disbursement of funds that had been paid into the court registry by Seven Seas or paid directly to the landlord. The court ordered that, if Seven Seas remains in possession after January 31, 2007, it must pay a three percent rent increase for the year beginning February 1, 2007, and three percent increases in each year thereafter. The court also ordered Seven Seas to pay an annual share of the ad valorem taxes, calculated under the original lease agreement, and to maintain a casualty insurance policy in accordance with the terms of the expired lease.
On appeal, Seven Seas argues that the landlord should collect only the double rent it demanded and to which it is entitled under the holdover statute. Seven Seas objects to the requirements that it maintain casualty insurance and pay ad valorem taxes and scheduled rent increases. The landlord responds that it had the right to elect its remedy and that the circuit court had discretion to make its award.
We conclude that the landlord elected its remedy in the settlement agreement and pursued that remedy in the motions leading to the order on appeal. See Perry v. Benson, 94 So. 2d 819, 821 (Fla. 1957) (explaining that when there are inconsistent remedies, "the pursuit of one with knowledge of the facts is in law a waiver of the right to pursue the other inconsistent remedy.") (citations omitted). In paragraph 7 of the settlement agreement, the parties agreed that if Seven Seas failed to timely vacate the premises, the landlord would be entitled to a final consent judgment that "would include eviction relief and a money judgment against SEVEN SEAS for any unpaid rent and any unpaid balance of the attorney's fees and costs." (Emphasis supplied.) The settlement agreement did not provide for the landlord's continued enforcement of lease terms regarding insurance and ad valorem taxes.
Moreover, in its motion and amended motion giving rise to the order on appeal, the landlord sought double rent for the holdover period, as allowed by statute. Other than objecting to being treated as a holdover tenant in lieu of the lease extension it sought, Seven Seas made no objection to this amount. The landlord having contracted for and thus elected the remedy of collecting unpaid rent, it is not entitled to additional relief.
Even so, the landlord argues that Seven Seas is not entitled to relief in this court because it waived its appellate rights in the settlement agreement. While paragraph 8 of the settlement agreement contained such a waiver, it was limited to any judgment entered "in compliance with" paragraph 7. As explained above, the court's order exceeded the relief the parties contracted for in paragraph 7. Therefore, Seven Seas is not barred under paragraph 8 from appealing an order that is not in compliance with paragraph 7. Accordingly, we reverse and remand for the court to determine Seven Seas' liability for unpaid rent as contemplated by the parties' settlement agreement.
Reversed and remanded.
KELLY and LaROSE, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED