ALINA NUNEZ, ET AL.,

v.

AVIV AIR CONDITIONING, INC., ETC., ET AL.,

Third District Court of Appeal State of Florida

Opinion filed April 28, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-44 Lower Tribunal Nos. 18-3091 SP, 19-170 AP ________________

Alina Nuñez, et al., Appellants,

vs.

Aviv Air Conditioning, Inc., et al., Appellees.

An Appeal from the County Court for Miami-Dade County, Luis Perez-Medina, Judge.

Eric J. Sanchez, P.A., and Eric J. Sanchez, for appellants.

Law Offices of Kawass, P.A., and Kristen A. Kawass, for appellees.

Before EMAS, C.J., and HENDON and MILLER, JJ.

HENDON, J.

The plaintiffs below, Roberto Nuñez, Gloria Nuñez, and Alina Nuñez

. . . .

(k) “Security Deposit”: . . . . The security deposit is to ensure Tenant’s compliance with all terms and conditions of this Lease and, in the event of default under this Lease by

. . . .

16.1 “Event of Default” Defined Any one or more of the following events shall constitute an “Event of Default”:

(a) The failure of Tenant to pay any rent . . . .

. . . . (c) The vacating or abandonment of the Premises by Tenant at any time during the Term of this Lease . . . .

. . . .

16.2 Remedies

Landlord’s sole remedy shall be to retain the option deposit subject to the terms and conditions of this Lease and the Contract for Sale and Purchase, if any. Landlord shall have all the remedies as provided in Florida Statute 83, including those with regard to Tenant’s property.

After the action was filed, the Defendants filed a Motion for Attorney’s Fees and Sanctions Pursuant to Section 57.105 (“Motion for Attorney’s Fees and Sanctions”), requesting that the trial court dismiss the action with prejudice and enter sanctions, including attorney’s fees and costs, against the Landlords. Although the trial court denied the Motion for Attorney’s Fees and Sanctions, the trial court stated that, because the leased premises had been rented to a new tenant by March 15, 2018, the Landlords lost the ability to recover from the Defendants the full amount of

5 Paragraph 16.2 provides: “Landlord’s sole remedy shall be to retain the option deposit subject to the terms and conditions of this Lease and the Contract for Sale and Purchase, if any. Landlord shall have all the remedies as provided in Florida Statute 83, including those with regard to Tenant’s property.” (emphasis added). The term “option deposit” appears only in paragraph 16.2 of the Lease. Paragraph 1.1(k) provides that “[t]he security deposit is to ensure Tenant’s compliance with all terms and conditions of this Lease and, in the event of default under this Lease by Tenant, may be applied towards compensation to Landlord for any damages suffered.” Thus, under paragraph 1.1(k), although the “security deposit” “may be applied towards compensation to Landlord for any damages suffered,” the security deposit is not the Landlords’ sole remedy. Further, paragraphs 1.1(k) and 16.2 do not reflect that the Landlords’ “sole remedy” in the event of a default under the Lease is to retain the security deposit. The Defendants suggests that the term “option deposit” as used in paragraph 16.2 includes the Tenant’s “security deposit.” This argument lacks merit as a “security deposit” and an “option deposit” are two different forms of deposits. An “option deposit” is a deposit given “in conjunction with a contract committing a seller to deliver title to all or a portion of a land

6 parcel or finished lots, on specified terms.”² In contrast, as set forth in paragraph 1.1(k), the “security deposit is to ensure Tenant’s compliance with all terms and conditions of this Lease . . . .” As the language in the Lease is clear and unambiguous, the trial court erred by failing to give effect to the contract as written. See Castro v. Mercantil Commercebank, N.A., 305 So. 3d 623, 626 (Fla. 3d DCA 2020). Accordingly, based on the above analysis, the trial court erred by granting the Defendants’ motion for summary judgment and dismissing with prejudice the Landlords’ breach of contract action. On remand, the trial court is instructed to enter a final judgment in favor of the Landlords, taking into consideration the trial court’s previous finding that the Landlords’ damages total $3,125 and that the Landlords have retained the Tenant’s $2,500 security deposit, which pursuant to paragraph 1.1(k) “may be applied towards compensation to Landlord for any damages suffered.” The Landlords argue that if a final judgment is entered in their favor, they are entitled to an award of attorney’s fees under the terms of the

2https://www.lawinsider.com/dictionary/optiondeposit#:~:text=Option%20Deposit%20means%20any%20payment,%EF% BC%8B%20New%20List

7 Lease. We disagree.³ In making this argument, the Defendants rely on paragraph 16.2 of the Lease, which provides, in part, as follows: “Landlord shall have all the remedies as provided in Florida Statute 83.” Part I of Chapter 83 of the Florida Statutes applies to “nonresidential tenancies,” and therefore, is applicable to the commercial Lease. Although Part II, which applies to residential tenancies, has a provision that allows the prevailing party to recover attorney’s fees from the nonprevailing party in any civil action to enforce the provisions of the rental agreement,⁴ no such provision exists in Part I of Chapter 83. Therefore, contrary to the Landlords’ assertion, on

8 remand, they are not entitled to an award of attorney’s fees. Reversed and remanded with instructions.