JOHN MERCEDE, APPELLANT,
v.
THE MERCEDE PARK ITALIAN RESTAURANT, INC., D/B/A VENEZIA RESTAURANT, APPELLEE
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A landlord sued to recover cost-of-living rent increases owed by a restaurant tenant under their lease agreement. The trial court found the landlord waived his right to the increases by failing to provide timely notice, but the appellate court reversed, holding that the tenant failed to prove the affirmative defenses of waiver and estoppel and that mere delay in demanding payment was insufficient to support such defenses.
The court held that the tenant failed to prove its affirmative defenses of waiver and estoppel, as it presented no evidence in support of these defenses. Mere delay in making demand for increased rent is insufficient to support either waiver or estoppel, and the landlord is entitled to the rental increases provided in the lease based on the Consumer Price Index.
[1] A landlord is entitled to a cost of living rent increase as provided in a lease, even if there was a delay in notifying the tenant of the increase.
[2] Mere delay in demanding increased rent is insufficient to support an affirmative defense of waiver or estoppel.
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Join FLexlaw to unlock all legal intelligence“the burden of proving the affirmative defense of estoppel and waiver was upon the appellee”
Establishes that the tenant had the burden of proof on its affirmative defenses
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Join FLexlaw to unlock all legal intelligenceMercede and Venezia Restaurant executed a lease dated January 1, 1975, providing for annual cost-of-living adjustments based on the Consumer Price Ind…
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DOWNEY, Judge.
Appellant, John Mercede, sued appellee, Venezia Restaurant, to recover a cost of living rent adjustment pursuant to a lease. From an adverse final judgment for appel-lee this appeal was perfected.
The lease between the appellant landlord and the appellee tenant, dated January 1, 1975, provided for a basic annual rent payable monthly. In addition, the lease provided that an annual cost of living increase should be added to the monthly rent after the first year of the lease.1 On October 5, 1977, the appellant sent appellee a notice of the cost of living increase. The appellee began paying the cost of living increase with the November 1977 rent payment, but refused to pay any increase for any period before November 1977. Again on August 4, 1978, appellant notified appellee it owed additional rent based upon the increase in the Consumer Price Index and demanded the arrearages. Appellee paid the new increase but again refused to make any back payments.
Appellant sued to recover the allegedly past due increase based upon the Consumer Price Index. Appellee denied the debt and affirmatively pleaded, among other defenses, waiver and estoppel. At trial before the court the parties stipulated to the admission of the lease and several letters between the parties and between counsel. The only testimonial evidence came from an accountant for appellant. ' It appears conceded in the record that the lease provided for a rental increase based upon the Consumer Price Index and that appellees had not made any payments per the Index for the period prior to November 1977. Appellee adduced no evidence in support of the affirmative defenses of waiver and estoppel. However, the trial court found “the plaintiff in this matter waives his right to any cost of living rent increase prior to his notices requesting same. Plaintiff failed to timely notice defendant of these increases.”
The burden of proving the 1ffirmative defense of estoppel and waiver was upon the appellee (State v. Hadden, 370 So. 2d 849 (Fla. 3rd DCA 1979); Coastal Bay Golf Club, Inc. v. Holbein, 231 So. 2d 854 (Fla. 2d DCA 1970); however appellee adduced no evidence at all to support those affirmative defenses. The evidence that was adduced by appellant reflected some delay in making demand upon appellee for increased rent, but mere delay is insufficient to support a defense of either waiver or estoppel.
Thus, it appears to us that appellant was entitled under the lease to an increase in rent after the first year based upon the Consumer Price Index. Appellee having failed to prove its affirmative defenses, judgment should be entered for appellant for the amount of said increases.
Accordingly, the judgment appealed from is reversed and this cause is remanded for further proceedings to determine the amount of rental increases due appellant based upon the increase in the Consumer Price Index as provided in the lease between the parties.
REVERSED AND REMANDED, with directions.
BERANEK and HERSEY, JJ., concur. . “Any lease executed beyond a 1 year period shall be increased by any increase in the cost of living index as published by the Bureau of Labor Statistics for every 1 year period after the expiration of the 1st 1 year period of this lease. The index to be utilized shall be the Consumers Price Index (all items) and the annual average applicable for the year shall be as specified therein. Said increases shall be added to the monthly rent.”
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O'Brien v. O'Brien, 424 So. 2d 970 (Fla. 3d DCA 1983)…roving the intentional relinquishment of a known right. See Opler v. Wynne, 402 So. 2d 1309 (Fla. 3d DCA 1981), review denied, 412 So. 2d 472 (Fla.1982). Mere delay is insufficient to support waiver. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997 (Fla. 4th DCA 1981). Our review of the record reveals that during the three and one-half-year period between the wife’s receipt of the notice that dissolution proceedings had been instituted and the filing of the petition for child support she lived…
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Goodwin v. BLU Murray Ins. Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006)…t make out a clear case. Fireman’s Fund Ins. Co. v. Vogel, 195 So. 2d 20, 24 (Fla. 2d DCA 1967). The burden of proving the affirmative defense of estoppel and waiver rests upon the party invoking it. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997, 998 (Fla. 4th DCA 1981). Summary judgment is particularly unsuitable where the facts and circumstances indicate a possibility of waiver. Scheibe v. Bank of America, N.A., 822 So. 2d 575, 575-76 (Fla. 5th DCA 2002). Mere delay is insufficient to sup…
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Broudy v. Broudy, 423 So. 2d 504 (Fla. 3d DCA 1982)…ich there can be no [*507] waiver. See Opler v. Wynne, 402 So. 2d 1309 (Fla. 3d DCA 1981), pet for review denied, 412 So. 2d 472 (Fla.1982). Mere delay is insufficient to support a defense of waiver, Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997 (Fla. 4th DCA 1981), and the evidence adduced showed nothing more than mere delay. Consequently, the trial court erred in denying the cost-of-living increases to the wife. Since we have already determined that alimony was terminable on the date the…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coastal BAY Golf Club, Inc. v. Holbein, 231 So. 2d 854 (Fla. 3d DCA 1970)
- Chevel v. Brandt, 370 So. 2d 849 (Fla. 3d DCA 1979)