DUNCAN DUFF, APPELLANT,
v.
GERALD MARTY, APPELLEE
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A tenant appealed a judgment for breach of a commercial lease agreement for a motel, challenging the trial court's finding of breach, the damages calculation, and an award of attorney's fees. The appellate court affirmed, finding sufficient evidence of nonpayment of rent and adequate support for the damages calculation based on the lease terms.
The court affirmed, holding that there was substantial competent evidence of breach based on the tenant's failure to pay rent in full, that the damages calculation was supported by evidence of reasonable rental rates in the lease agreement, and that the attorney's fees award was proper.
[1] A lease agreement may be breached by a tenant's failure to pay rent, even without formal written notice of the breach, if the landlord refuses a partial payment and the p…
[2] Evidence of a landlord's refusal of a partial rental payment and subsequent discussions about the inadequacy of the payment is sufficient to support a finding of breach o…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the lease agreement does not provide that a written notice of a breach must be served on the tenant, and, accordingly, the proof of such written notice was not, as urged, required to establish a breach of the lease agreement”
Establishes that written notice of breach is not a prerequisite to proving breach of this lease agreement.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuncan Duff (defendant/tenant) leased motel units under an agreement with Gerald Marty (plaintiff/lessor). The tenant tendered a rental payment for Ju…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by the defendant/tenant Duncan Duff from (1) an adverse final judgment entered after a non-jury trial in an action for breach of a lease agreement involving certain motel units, and (2) an award of attorney’s fees to the plaintiffilessor as the prevailing party in this action.
We affirm. First, the defendant contends that there is a total absence of substantial competent evidence of a breach of the subject lease.
We disagree. Contrary to the defendant’s argument, the lease agreement does not provide that a written notice of a breach must be served on the tenant, and, accordingly, the proof of such written notice was not, as urged, required to establish a breach of the lease agreement — a point which was never raised below by the defendant. There is evidence in this record that the plaintiffdes-sor refused a tender of rental payment by the defendant/tenant for June 1991 because it was not in the amount required by the lease agreement, and that the parties discussed this inadequacy of rental payment at length; no further tender of rental payments was ever made in the case. This was, accordingly, more than sufficient evidence upon which the trial court could find, as it did, that the defendant breached the lease agreement by failing to pay rent.
Moreover, there is evidence in this record that there was never any novation of the subject lease agreement. Given this prima facie showing of a breach of the lease agreement for nonpayment of rent, the fact that there is contrary evidence indicating a novation, and thus no breach of the subject lease agreement, cannot change this result. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976).
Second, the defendant contends that there is a complete absence of competent substantial evidence to support the damages awarded in this case. We cannot agree. The lease agreement provided that if, as was shown in this ease, the occupancy rate of the leased motel units was less than 50%, the rental payment due was one-half of the gross rental receipts which would have been generated by an occupancy rate of fifty (50%) percent at commercially reasonable rates. Contrary to the defendant’s argument, there was sufficient evidence adduced below that the reasonable rental rate on the subject five motel units was $39.00 a day — which amounts to a loss of rentals for the balance of the lease equal to the damages awarded by the court. ' Shaw.
Finally, there is no merit to the defendant’s attack on the attorney’s fee award. The final judgment and attorney’s fee order under review are, accordingly, in all respects,
Affirmed.
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Cited By
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Am. Linens, Inc. v. Venmall Int'l Grp., 645 So. 2d 1059 (Fla. 3d DCA 1994)…failure to pay for the July 1992 rent; other evidence adduced at trial also supports the defendant/tenant’s obligation to pay $325 in taxes for July 1992, which payment was also not made. Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. .1976); Duff v. Marty, 632 So. 2d 240, 241 (Fla. 3d DCA 1994); Rosa Bros. Inc. v. Schlossman, 373 So. 2d 403, 404 (Fla. 3d DCA 1979). Second, we reject the defendant/tenant’s argument that the trial court erred in refusing to award damages and attorney’s fees under its civil theft cla…
Authorities Cited
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)