DTRS INTERCONTINENTAL MIAMI, LLC, ETC., APPELLANT,
v.
A.K. GIFT SHOP, INC., ETC., APPELLEE
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DTRS Intercontinental Miami appealed the trial court's denial of immediate possession of leased commercial space after the tenant, A.K. Gift Shop, failed to timely deposit rent into the court registry as ordered. The appellate court reversed, holding that Florida Rule of Civil Procedure 1.080(h)(3) makes the transmission requirement directory, so the tenant's failure to receive the order does not excuse non-compliance, and under Florida Statutes § 83.232(5), the landlord is entitled to an immediate default for possession.
The trial court erred in denying immediate possession. Under Florida Rule of Civil Procedure 1.080(h)(3), the requirement to transmit orders is directory and a failure to comply does not affect the order's finality or effectiveness. The order was effective on April 5, 2011, regardless of when the tenant received it. Under Florida Statutes § 83.232(5), the tenant's failure to deposit rent as ordered constitutes an absolute waiver of defenses, and the landlord is entitled to an immediate default for possession without further notice or hearing.
[1] A trial court's failure to timely transmit an order to parties does not affect the order's validity or excuse a party's duty to comply with it, as Florida Rule of Civil P…
[2] A tenant's failure to pay rent into the court registry as ordered waives all defenses and entitles the landlord to an immediate default for possession without further not…
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Join FLexlaw to unlock all legal intelligence“Rule 1.080(h)(3), however, makes the dispute irrelevant, as the order was effective on April 5, 2011, and any alleged failure of the trial court to transmit the order did not excuse A.K. Gift Shop's duty to comply therewith.”
Establishes that the trial court's failure to properly transmit the order does not excuse the tenant's obligation to comply with it.
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Join FLexlaw to unlock all legal intelligenceDTRS Intercontinental owned a hotel with commercial space leased to A.K. Gift Shop. The trial court entered an agreed order on April 5, 2011 (filed Ap…
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This is an appeal by DTRS Intercontinental Miami, LLC, the owner of a hotel located in Miami, Florida, from an order denying it immediate possession of commercial space in the hotel leased to A.K. Gift Shop, Inc., entered upon the failure of A.K. Gift Shop to comply with an “Agreed Order Directing Tenant to Pay Rent Into Registry of Court Pursuant to § 83.232, Florida Statutes.” The order, signed by the trial court on April 5, 2011, and filed with the clerk on April 7, 2011, required A.K. Gift Shop to deposit specified rent into the court registry within five days of its entry, exclusive of weekends and holidays. Counsel for A.K. Gift Shop claimed he did not receive the order until April 13, 2011, one day after the deadline for compliance if calculating from the April 7 filing date of the order. The trial court reasoned that because DTRS Intercontinental provided envelopes for the court to send the agreed orders to counsel, it tacitly agreed the orders would not take effect until received by the parties. This was error.
Florida Rule of Civil Procedure 1.080(h)(1) provides, “A copy of all orders ... shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment.” However, subdivision (h)(3) of the rule states, “This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.” The dispute in this case revolves around whether the trial court timely transmitted the order to counsel. Rule 1.080(h)(3), however, makes the dispute irrelevant, as the order was effective on April 5, 2011, and any alleged failure of the trial court to transmit the order did not excuse A.K. Gift Shop’s duty to comply therewith. See Phoenix Holding, LLC v. Martinez, 27 So.3d 791, 792 (Fla. 3d DCA 2010) (declining to set aside judicial sale where mortgagors contended they were served at the wrong address with a copy of the final judgment on the basis that Rule 1.080(h)(3) is directory and the trial court’s failure to comply with Rule 1.080(h) does not affect the order or judgment or its finality).1 Moreover, the record reflects A.K. Gift Shop did not deposit the specified rent into the court registry until April 19, 2011, more than five days after the date by which even A.K. Gift Shop’s counsel contends he received the order.2
Section 83.232(5), Florida Statutes (2011), provides, “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” In Park Adult Residential Facility, Inc. v. *787 Dan Designs, Inc., 36 So.3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts “have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made.” We further stated, “[T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.” Id. at 812 n. 1.
Under the plain language of section 83.232(5), DTRS Intercontinental is entitled to an immediate writ of possession. See id.; see also Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp., 45 So.3d 37 (Fla. 4th DCA 2010); Stetson Mgmt. Co. v. Fiddler’s Elbow, Inc., 18 So.3d 717 (Fla. 2d DCA 2009); 214 Main St. Corp. v. Tanksley, 947 So.2d 490 (Fla. 2d DCA 2006).
Reversed and remanded for entry of an immediate writ of possession.
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Pineda v. Wells Fargo Bank, N.A., 143 So. 3d 1008 (Fla. 3d DCA 2014)…e law as the Legislature has so clearly announced it. We are not endowed with the privilege of doing otherwise regardless of the view which we might have as individuals.”) (citation omitted); DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785, 787 (Fla. 3d DCA 2011) (“The law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.”) (citation omitted). Neither the statutes nor the case law governing distribution of surplus foreclosure sale proce…
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Palm Beach Marketplace, LLC v. Aleyda's Mexican Restaurante, Inc., 103 So. 3d 911 (Fla. 4th DCA 2012)…edies set forth in the statute. See Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp., 45 So. 3d 37 (Fla. 4th DCA 2010). See also Famsun Invest, LLC v. Therault, 95 So. 3d 961 (Fla. 4th DCA 2012); DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785 (Fla. 3d DCA 2011). While we grant the mandamus petition, as in Poal, we withhold the issuance of the writ, as we are assured that the trial court will act in accordance with this opinion and issue the writ of possession to the landlord. Also as t…
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State v. Brena, 278 So. 3d 850 (Fla. 3d DCA 2019)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314 (Fla. 3d DCA 2000)
- 214 Main St. Corp. v. Tanksley, 947 So. 2d 490 (Fla. 2d DCA 2006)
- Park Adult Residential Facility, Inc. v. DAN Designs, Inc., 36 So. 3d 811 (Fla. 3d DCA 2010)
- Poal WK Taft, LLC v. Johnson Med. Ctr. Corp., 45 So. 3d 37 (Fla. 4th DCA 2010)
- Phoenix Holding, LLC v. Martinez, 27 So. 3d 791 (Fla. 3d DCA 2010)
- Reagan v. State, 667 So. 2d 378 (Fla. 1st DCA 1995)
- Virgel Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995)
- Stetson Mgmt. Co., Inc. v. Fiddler's Elbow, Inc., 18 So. 3d 717 (Fla. 2d DCA 2009)
- Bien-Aime v. MSRH Bd. Walk, LLC, 41 So. 3d 1117 (Fla. 4th DCA 2010)
- Boelter v. Evonne Rae Boelter, 39 So. 3d 1282 (Fla. 2d DCA 2010)