ALMAR MOBILE HOME PARK
v.
DINNA, ET UX.
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A mobile home park owner sued to evict tenants who owned their mobile home but rented the lot. The court held that summary eviction procedures under Florida Statute §51.011 do not apply to mobile home park evictions under Part III of Chapter 83, and therefore the summons was defective for requiring only a 5-day response period.
Summary eviction procedures under §51.011 do not apply to Part III of Chapter 83 evictions because §83.759 merely states the procedures do not preclude summary eviction but does not affirmatively authorize them. The summons requiring a 5-day response is defective and insufficient as process because the substantive requirements of summary procedure are inapplicable.
[1] Summary procedure under Fla. …
[2] A statute stating that a procedure is not precluded does not constitute an affirmative authorization of that procedure.
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 court's interpretation of §51.011 is that it is applicable only when so specified (that is, authorized or invoked) by statute or rule.”
Establishes the central holding that summary procedures require explicit statutory authorization, not mere absence of prohibition
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Join FLexlaw to unlock all legal intelligenceAlmar Mobile Home Park brought an eviction action against defendants who owned a mobile home and rented the lot from the park. The plaintiff served de…
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Disregarding issues as to capacity, which have not been resolved, plaintiff brings an eviction action. Defendants own a mobile home and rent the lot on which the mobile home is situated. On these prima facie facts, this is an action governed by Part III of Chapter 83, Florida Statutes.
Plaintiff served defendants using a form of summons, commonly used in the seventeenth circuit, requiring response within 5 days. Defendants responded with an answer and affirmative defenses specifically reserving objections to summary procedure and raising insufficiency of process as an affirmative defense.
This cause came on for hearing on motion by defendants to dismiss on grounds set forth in the affirmative defenses. Only the ground relating to insufficiency of process is considered, as it is dispositive of this hearing.
Defendants’ objection was that the summary procedure authorized by Fla. Stat. §51.011 applies only to those actions specified by statute or rule. The only section in Part III, Chapter 83 which speaks of summary procedure is Fla. Stat. §83.759, which states “This section does not preclude summary eviction procedures . . .”
Plaintiff argues that this language implies that summary procedure is authorized, while defendants argue that authorization must be explicit.
The court’s interpretation of §51.011 is that it is applicable only when so specified (that is, authorized or invoked) by statute or rule. The word in §83.759 which is the operative word is “preclude.” Black’s Law Dictionary (4th ed. 1968) defines “preclude” as “estop.” Webster’s New Collegiate Dictionary (1976) defines “preclude” as “to make impossible by necessary consequence.” In no sense does “preclude” imply an affirmative authorization.
*187This is, perhaps, analogous to where a power is granted to the legislature to enact certain types of legislation. If the legislature fails to pass the laws, the constitutional grant does not do so by implication, unless it is a necessary consequence (as opposed to a conjectural or argumentative implication).
This construction is strengthened when one compares the corresponding provisions of Parts I and II of Chapter 83. Both specifically state the landlord “is entitled to the summary procedure provided in §51.011 . . .” Compare Fla. Stat. §83.21 with Fla. Stat. §83.59(2). If the legislature intended that summary procedure be available under Part III, it would have used the same language in Part III.
It is therefore held that the summary procedure provided in §51.011 is not available under Part III of Chapter 83, Florida Statutes.
Rule 1.900(b) allows modification of forms so long as substance is expressed. Since the time allowable for response is considered an integral part of due process, it is further held that the summons providing for a five day response and other peculiarities relating to summary procedure for possession are not substantively similar to Form 1.902 because (and only because) the provisions of §51.011 are not applicable to this action.
The summons is therefore defective, and defendants’ motion to dismiss for insufficiency of process is granted.
Since without process, this action is not properly before the court on other grounds for dismissal, there is no need for the court to rule on those other grounds.