245 CNC LLC

v.

CARLOS ALBERTO ET. AL

Before: WALSH, TRAWICK, and SANTOVENIA, JJ.

SANTOVENIA, J.

[*2] [*2] 245 C & C LLC, (“Appellant” or “Landlord”) filed an appeal alleging that final judgment was incorrectly entered in favor of Appellees, Carlos Alberto Alonso Cano (“Alonso”) and Fe Morejon Fernandez (collectively “Appellees” or “Tenants”) in this eviction case for termination of a month-to- month tenancy. While the Tenants’ annual written leases with the Landlord commenced in 2011, issues between the Tenants and the Landlord apparently arose in 2013. The tenancy changed to a month-to-month tenancy with a good conduct addendum in October, 2016. A notice of non-renewal was delivered to Tenants thereafter on September 26, 2017. On September 27, 2017, Tenants filed a fair housing complaint with the United States Department of Housing and Urban Development (“HUD”) and the Florida Commission on Human Relations (“FCHR”). At HUD’s request, the Landlord provided Tenants additional time to vacate the property so that HUD could investigate the complaint. The Landlord’s September 26, 2017 notice of nonrenewal was thus followed by an October 4, 2017 notice of nonrenewal requiring the Tenants to vacate the property by January 31, 2018. The eviction action commenced on February¹, 2018. Alonso filed a complaint on February 12, 2018 in the United States District Court for the Southern District of Florida alleging the Landlord’s violations of Alonso’s civil rights, the Americans with Disabilities Act and housing [*3] [*3] laws, as well as alleging discrimination and retaliation by the Landlord (the “Federal Case”).¹ Tenants raised three affirmative defenses in the eviction action:¹) retaliatory eviction pursuant to Section 83.64(1)(f), Fla. Stat. premised on Tenants’ filing of complaints under federal and state housing laws;²) violation of the Landlord’s obligation of good faith under Section 83.44, Fla. Stat. and 3) equitable relief from forfeiture. Alonso also filed a counterclaim against the Landlord alleging violation of Section 83.67, Fla. Stat. for termination of water services and breach of contract for the Landlord’s alleged violation of its obligation of good faith for failing to advise Alonso of water shutoffs and because wildlife damaged Alonso’s car. The Landlord replied to the affirmative defenses and filed HUD’s and the FCHR’s adverse agency determinations in the record in support of its position that the retaliatory eviction defense was legally insufficient. The trial judge who originally presided over the eviction action conducted a non-jury trial in November, 2018, but retired in December, 2018 before ruling or entering judgment. The successor judge provided the parties with the options of having a new trial or having the successor judge enter a ruling based on the trial transcripts, exhibits and memoranda of law. The parties stipulated to the latter [*4] [*4] option.² The successor judge entered final judgment in favor of Appellees on June 20, 2019 and this appeal followed. Standard of review Where a trial court's conclusions following a non-jury trial are based upon legal error, the standard of review is de novo. Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008). Generally, when a decision in a nonjury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence. Id. (citing In re Estate of Sterile, 902 So. 2d 915, 922 (Fla. 2d DCA 2005)). This is because “the trial judge is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’” In Re Estate of Sterile, 902 So. 2d at 922 (quoting Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976)). However, the successor judge here did not observe “the bearing, Bradford v. Found. & Marine Const. Co., 182 So. 2d 447, 449 (Fla. 2d DCA 1966); see also Smith v. Smith, 612 So. 2d 713, 714 (Fla. 2d DCA 1993) (reversing and remanding the case to the trial court because the parties had not stipulated to allow the successor judge to decide the case based on evidence in the original action). The Court in Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990), ruled that a successor judge could not weigh and compare testimony heard before the predecessor judge, unless the parties stipulate to a ruling on the basis of the record of the prior proceedings. “A successor judge who does not hear all the evidence may only enter a verdict or judgment on a retrial or if the parties so stipulate on the basis of the record of the prior proceedings.” Reaves v. Reaves, 546 So. 2d 744, 745 (Fla. 2d DCA 1989). In Fratello v. State, 950 So. 2d 440, 442 (Fla. 4th DCA 2007), the court ruled that “[o]rdinarily, a trial judge is not permitted to rule on a matter based on the credibility of witnesses which the judge has not heard, absent a stipulation of the parties.”

[*5] [*5] demeanor and credibility of the witnesses,” but ruled based on a review of a cold transcript. The issue then becomes what deference, if any, this appellate court is required to give to the successor judge’s factual findings and credibility determinations. In Walton v. Estate of Walton, 601 So. 2d 1266, 1268 (Fla. 3d DCA 1992), the Third District Court of Appeal stated that: The rule has long been established that where a trial judge bases his final order on the transcribed testimony of witnesses, the appellate court is in the same position in examining the testimony as is the trial judge. Although the presumption of correctness remains, it is not as strong as when the trial judge, as a trier of fact, personally hears and sees the witnesses. This is one of the rare instances in which an appellate court is permitted to reexamine a factual determination made by a trial court…We, therefore, are in as good a position as was the probate judge to examine the transcript and determine the weight to be given the witness' testimony.

(citations omitted). The court in Sullivan v. Kanarek similarly ruled that the appellate court does not need to afford a successor judge the same deference it would afford the original presiding trial judge. 79 So. 3d 900, 904 (Fla. 2d DCA 2012). “Furthermore, the presumption of correctness of a court's ruling based upon a written record of pleadings, affidavits and depositions is not as strong as where the court heard the witnesses itself or ruled on conflicting evidence.” Savage-Hawk v. Premier Outdoor Products, Inc., 474 So. 2d 1242, 1244 (Fla. 2d DCA 1985). The presumption of correctness is not as strong when (1) the trial judge makes his or her determinations on the written record or (2) when the evidence is not conflicting. See W. Shore Rest. Corp. v. Turk, 101 So. 2d 123, 126 (Fla. 1958) [*6] [*6] (where a trial judge did not hear witnesses, the presumption of correctness due the judge’s ruling based on a written record “is slight for the reason that we have everything before us that he had before him and we have the same opportunity to weigh it as did the chancellor”). The Court in Julian v. Julian similarly stated that: It is plain from the record that the trial court has never seen or examined any of the parties to the suit, or the witnesses whose depositions were taken, but has based its decision as to the competency of the plaintiff solely upon typewritten evidence. In these circumstances, the trial court was in no better position to arrive at a correct conclusion as to the competency of the plaintiff and the credibility of the witnesses at the time the summary judgment was entered than is the appellate court on this appeal. Hence, the general rule to the effect that a judgment entered by a trial court on evidence will on appeal be presumed correct until the presumption has been clearly overcome by the appealing party does not obtain to the same degree as it would where the trial court had seen and heard the witnesses testify.

188 So. 2d 896, 898-99 (Fla. 2d DCA 1966) (quoting Harmon v. Harmon, 40 So. 2d 209 (Fla. 1949)); see also Dukes v. Dukes, 346 So. 2d 544, 545 (Fla. 1st DCA 1976). Moreover, when a trial judge makes credibility determinations pursuant to the written record, the appellate court is not required to accept the trial court's credibility determinations. See Redondo v. Jessup, 426 So. 2d 1146, 1147 (Fla. 3d DCA 1983) (“Whitley's testimony was also presented at the evidentiary hearing, but only by way of deposition. Since the trial court had no opportunity to observe Whitley's demeanor, we are not required, as appellee suggests, to accept the trial court's determination of Whitley's credibility”). This is because when a trial judge makes credibility determinations pursuant to written submissions, as opposed to live [*7] [*7] testimony, the appellate court “stand[s] on equal footing with the trial court as to the interpretation of the written submissions.” Highland Stucco & Lime Products, Inc. v. Onorato, 259 So. 3d 944, 947-48 (Fla. 3d DCA 2018). The Third District Court of Appeal articulated the rationale for this principle in Sanford v. State, 687 So. 2d 315 (Fla. 3d DCA 1997), stating: [W]e conclude that it is virtually impossible for any judge other than the actual trial judge to properly entertain a challenge to a jury verdict based upon the weight where as here, the credibility of the witnesses played such an important role. As Sanford points out, a careful consideration of the credibility of the witnesses cannot be adequately accomplished by a mere reading of the cold trial transcript. The State asserts, however, that a witness' credibility can be readily gleaned from the witness' consistent and/or inconsistent answers to propounded questions, stated bias or interests in the outcome of the case, etc. While these are certainly factors which the jurors are instructed to consider in determining a witness' credibility, see Florida Standard Jury Instructions in Criminal Cases 2.04 at 14– 15, we find that they are not all encompassing. The demeanor, physical appearance, gestures, voice intonations, etc. of the witness while testifying are also critical factors which bear on the credibility of the witness. And such factors clearly cannot not be captured or articulated on a trial transcript. Only the judge who actually presided over Sanford's trial and observed the witnesses will know what significance, if any, such factors played in the outcome of the trial.

Id. at 317. Here, the successor judge, albeit based on a stipulation of the parties, reviewed a cold transcript and was in no better position than this appellate court to make credibility determinations based on the record. As such, this court is not bound by the successor judge’s credibility determinations. Redondo, supra., 426 So. 2d at 1147. [*8] [*8] The Eviction Claim Section 83.64(1)(f), Fla. Stat., the statute pursuant to which Appellees asserted their retaliation defense, provides, in relevant part, that: (1) It is unlawful for a Landlord to discriminatorily increase a tenant’s rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the Landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the Landlord may not retaliate include, but are not limited to, situations where: (f) The tenant has exercised his or her rights under local, state, or federal fair housing laws. (2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.

(emphasis added). Notably, Section 83.64(3), Fla. Stat. provides that “[i]n any event, this section does not apply if the Landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.” See Salmonte v. Eilertson, 526 So. 2d 179 (Fla. 1st DCA 1988) (interpreting Section 83.64(3); retaliatory eviction defense does not apply when landlord proves eviction is for good cause and further defines good cause to include violation of the rental agreement). The history between the parties provides context for the non-renewal of the written lease and the reasons for the requirement of the good conduct addendum. In October, 2016, Landlord advised Tenants that it would only allow Tenants to remain [*9] [*9] at the property on a month-to-month basis contingent on their execution of a good conduct addendum. A Month to Month Tenancy and Good Conduct Addendum was executed by Tenants on October 28, 2016 (“Good Conduct Addendum”). Pursuant to paragraph 13 of the Good Conduct Addendum, Tenants agreed that any violation of the month-to-month lease may result in immediate termination of the lease. Specifically, Tenants agreed in paragraph 10 of the Good Conduct Addendum that they would not harass their neighbors. The month-tomonth lease required Tenants to comply with the terms of the lease agreement. Tenants also admit in their Answer Brief that “the lease agreement does state that tenants must abide by all federal, state, municipal and local laws and ordinances”. At trial, the Landlord introduced evidence of Appellees’ “violation of the rental agreement or of reasonable rules” within the meaning of Section 83.64(3), Fla. Stat. Specifically, the Landlord introduced evidence that the Landlord had good cause to evict the Tenant. For example, Maria Hernandez, the tenant in apartment 1401 (the “Upstairs Tenant”), whose apartment is located directly above the Tenants’ apartment, testified that Alonso screamed at her the very first day she moved into the apartment because the balcony door made noise when opened (November 16, 2018 Trial Transcript at p. 117, lines 14-23) and that his treatment of her did not improve over the course of her tenancy of four years and ten months (November 16, 2018 Trial Transcript at p.119, lines 3-5). Alonso would bang on the ceiling of his [*10] [*10] apartment (her floor) on a regular basis whenever she opened the sliding glass door to her balcony or any time he heard anything or footsteps (November 16, 2018 Trial Transcript at p. 119, lines 16-22–p.121, line 3). Tenants’ actions led her to not wear heels within her apartment and to not invite any guests to the apartment (November 16, 2018 Trial Transcript at p. 119, line 16p.120, line 3). Also, the Upstairs Tenants were required to evacuate their apartment because there was no power and they could not open their balcony door due to the noise, fumes and concerns of carbon monoxide emanating from Tenants’ unauthorized use of a generator following Hurricane Irma (November 16, 2018 Trial Transcript at p. 134, lines 6-13). In addition, Tenants had made noise complaints to the security guard about the Upstairs Tenants that were not true (November 16, 2018 Trial Transcript at p. 122, line 5-p.124, line 5; p. 131, lines 813). This testimony, standing alone, was sufficient to support a finding that the Landlord pursued the eviction for good cause, rendering the retaliation defense inapplicable pursuant to Section 83.64(3), Fla. Stat. Further, the terms in paragraph 10 of the Good Conduct Addendum, to which Tenants agreed, corroborate the testimony of the Upstairs Tenant and appear to be specifically tailored to address the ongoing issues with Tenants to which the Upstairs Tenant testified. The property manager, Vilma Hernandez (“Property Manager”) testified that [*11] [*11] Tenants were sent notice of termination of the month-to-month tenancy because they were not following the terms of the Good Conduct Addendum (November 16, 2018 Trial Transcript at p. 90, lines 21-24). Following the issues with the air conditioning and the generator, there was testimony from the Upstairs Tenant that Tenants continued to disturb her through September, 2017 (November 16, 2018 Trial Transcript at p. 121, lines 16-21). Accordingly, Tenants were notified of the nonrenewal of the month-to-month lease effective October 31, 2017. The successor judge determined that the Property Manager was not trustworthy² and rejected not only her testimony, but all the other evidence submitted on behalf of the Landlord. It was error to do so. There was no finding that the Landlord’s other witnesses were not credible. Notably, the opinion does not even mention the testimony of the Upstairs Tenant. Among other findings, the successor judge found that the Tenants had not agreed to the Good Conduct Addendum but that “defendants [Tenants] had no choice but to sign the addendum because they could not secure alternative housing and risk [*12] [*12] any changes to their son’s daily living habits as their son suffers from cerebral palsy...” First, this was not an issue for trial as no affirmative defense of undue influence was raised in the Tenants’ answer or amended answer in the eviction action. As such, any such defense was waived for Tenants’ failure to raise it in a responsive pleading. See Heartwood², LLC v. Dori, 208 So. 3d 817, 821 (Fla. 3d DCA 2017) (“It is well-settled law in Florida that affirmative defenses not raised are waived”); S. Mgmt. & Dev., L.P. v. Gardner, 992 So. 2d 919, 920 (Fla. 4th DCA 2008) (holding that affirmative defenses are waived if not pled); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (reversing the trial court's involuntary dismissal that was based on an unpled affirmative defense); Sonnenblick-Goldman of Miami Corp. v. Feldman, 266 So. 2d 48, 50 (Fla. 3d DCA 1972) (“When an affirmative defense ... is not raised by answer, it is waived.”); Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199, 1202 (Fla. 4th DCA 2015) (standing is an affirmative defense and failure to raise it in a responsive pleading generally results in a waiver); Rule 1.140(b), Fla. R. Civ. P. (“The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived.”).

Moreover, even assuming arguendo that such a defense had not been [*13] [*13] waived, undue influence “must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and willpower.” Jordan v. Noll, 423 So. 2d 368, 370 (Fla. 1st DCA 1982). “[M]ere weakness of mind, unaccompanied by any other inequitable incident, if the person has sufficient intelligence to understand the nature of the transaction and is left to act upon his own free will, is not a sufficient ground to set aside an agreement.” Donnelly v. Mann, 68 So. 2d 584, 586 (Fla. 1953) (citations omitted). “To constitute ‘undue influence’ the mind ... must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but ... subject to the will or purposes of another.” Peacock v. Du Bois, 105 So. 321, 322 (Fla. 1925) (citation omitted). The record below is devoid of any evidence that the Tenants had no choice but to sign the Good Conduct Addendum because they could not secure alternative housing. To the contrary, the record supports that Tenants received the notice of non-renewal on August 3, 2016. The Landlord informed Tenants that the Landlord would be willing to allow them to stay if they signed the Good Conduct Addendum (R. 152). Upon receiving the Good Conduct Addendum, Tenants informed the Property Manager that they would review the addendum with an attorney (November 15, 2018 Trial Transcript at p.36, line 25-p. 37, line 3). After several weeks had transpired, the Landlord sent the Tenants a notice dated October 19, [*14] [*14] 2016, stating they must sign the addendum or face eviction (November 15, 2018 Trial Transcript at p.37, lines 10-17). There is no record detailing what efforts, if any, Tenants made to secure alternative housing between August 3, 2016 and October 19, 2016. The successor judge also found that “Dr. Fornos testified that the son had cerebral palsy and that a change in environment could cause him additional problems.” Dr. Fornos’s testimony at trial, which comprised all of two pages (November 16, 2018 Trial Transcript at p.114, line 7- p.116, line²), was as follows: “It’s impossible to know exactly what would happen” when asked what would happen if the son had environment changes, and “not necessarily” when asked if it is detrimental to have environment changes for someone with cerebral palsy. She also testified that her statement in an earlier letter that a change of environment could have a detrimental effect meant “could as in it may or may not happen.” Nor did she testify to any conclusion within a reasonable degree of medical certainty (November 16, 2018 Trial Transcript at p.114, line 23-p. 116, line²). Accordingly, there is no support in the record below from Dr. Fornos for the successor judge’s finding that a change in environment could cause Tenants’ son additional problems. The Retaliation Defense Section 83.64, Fla. Stat., provides, in relevant part, that:

(1) It is unlawful for a landlord to discriminatorily increase a tenant’s rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to [*15] [*15] raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where… (f) The tenant has exercised his or her rights under local, state, or federal fair housing laws.
(2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.
(3) In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter. (4) “Discrimination” under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

(emphasis added). Even though Tenants raised retaliation as an affirmative defense in their Amended Answer, it was premised on subsection (1)(f) of Section 83.64, which provides as a basis that “[t]he tenant has exercised his or her rights under local, state, or federal fair housing laws.” No other retaliation defense was asserted by Tenants in their pleadings. However, at the outset of the non-jury trial, Tenants’ counsel announced that: “We’re not gonna go forward on the water issues…The issue’s gonna be retaliation. The issue is not the discrimination. The issue is not going to be the Fair Housing case. It is not gonna be the ADA case. That case currently is being litigated in Federal Court. So whatever—whatever’s going with that case, I’m going to be objecting to any of that coming into this case because that is not the basis for my affirmative defense. My affirmative defense is based clearly on retaliation. I also have an A344 claim and I have an equity claim”.

(emphasis added) (Transcript of November 15, 2018 trial at p. 11, lines 3-22). Tenants’ counsel further stated that “when Mr. Alonso was asserting his rights to [*16] [*16] this property that they [the Landlord] have elected to respond through termination. They have done this since 2013. We’re here because he asserts his rights and they terminate.” Tenants’ counsel gave as examples of retaliation that when Tenants requested that their air conditioning be fixed in the summer or that they be allowed to use a generator following a hurricane, the Landlord responded with termination. (Transcript of November 15, 2018 trial at p. 11, line 23-p.12, line 25). Based on the foregoing statements, it is clear that at trial the Tenants withdrew or abandoned the retaliation defense raised in their pleadings, which argued retaliation premised solely on the Tenants’ filing of complaints under federal and state housing laws. Appellee Alonso also withdrew his counterclaim premised on the “water issues.” Notwithstanding, the arguments in Tenants’/Appellees’ answer brief contain multiple references to Tenants’ “reasonable accommodation” requests and Tenants’ son’s disabilities. It must be stressed that the case below was not an affirmative claim filed by Tenants alleging violation of the Fair Housing Act for Landlord’s failure to provide any “reasonable accommodation.” Nor was a claim for the Landlord’s alleged failure to provide any “reasonable accommodation” included in the Tenants’ counterclaim. Rather, those claims were included in the Tenants’ Federal Case and “reasonable accommodation” was only an issue in the eviction action to the extent that the Tenants’ filing of the Federal Case formed the basis of Tenants’ retaliation defense. Once Tenants withdrew at trial the retaliation defense asserted in their pleadings, the Tenants’ “reasonable accommodation” requests were not at [*17] [*17] issue in the eviction action. As such, it was error for the successor judge to base her ruling in the eviction case below on the Landlord’s alleged failure to provide “reasonable accommodations” to Tenants. Tenants attempted at trial, for the first time, to assert an alternative retaliation defense premised on their requests for their air conditioning to be repaired and for a generator following Hurricane Irma in 2017. Notwithstanding that the Landlord did not object to Appellees’ attempt to amend their retaliation defense at trial, Tenants, who carried the burden of proving their affirmative defenses, failed to show how the Landlord’s alleged failure to provide air conditioning or a generator amounts to retaliation as a matter of law. Significantly, Section 83.64(4), Fla. Stat. provides that: “Discrimination” under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the Landlord, which shall be a prerequisite to a finding of retaliatory conduct.

(emphasis added). The statute makes clear that there can be no retaliation absent a finding of discrimination, or that Tenants were treated differently than other tenants. No such finding of discrimination was made by the successor judge prior to determining that there was a pattern of retaliation by the Landlord, nor is such a finding supported by the record. The concept of differential treatment for discrimination purposes implies a comparison of those who are similarly situated in all relevant respects. See Johnson v. Great Expressions Dental Center of Fla. P.A., 132 So. 3d 1174, 1176 (Fla. 3d [*18] [*18] DCA 2014) (“an adequate comparator must be “similarly situated ‘in all relevant respects.”) (citing Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17 (Fla. 3d DCA 2009). Tenants’ claims of disparate treatment were unsupported by any evidence. Here, while Alonso testified that he was provided a notice that the use of a generator on his balcony post-Hurricane Irma was a violation of the apartment complex rules, there was no testimony that other tenants who were using their generators were not provided with notices of violation by the Landlord or were allowed to continue using their generators. To the contrary, there was testimony by the Property Manager that prior to the arrival of Hurricane Irma in 2017, a notice was sent to all tenants advising them that pursuant to regulation N, nothing could be placed on apartment windows or doors and that the use of generators was not allowed during or after the storm (November 15, 2018 Trial Transcript at p. 41, 1320; November 16, 2018 Trial Transcript at p. 90, lines 11-12). Similarly, the Upstairs Tenant testified that an e-mail and letters were sent to everybody advising that it was prohibited to have or use a generator in the building (November 16, 2018 Trial Transcript at p. 134, lines 11-17). In addition, the Property Manager testified that while a handful of other tenants had generators on their balconies, they removed them when requested to do so (November 15, 2018 Trial Transcript at p. 40, lines 11-25) with the exception of two tenants, regarding whom she was required to send [*19] [*19] seven-day notices and call the police (November 15, 2018 Trial Transcript at p. 40, lines 16-20). The Property Manager also testified that all of the tenants were sleeping with their windows open following Hurricane Irma and that the carbon monoxide emitted by generators was a health concern (November 15, 2018 Trial Transcript at p. 40, lines 3-5). Further, the fire department said that this was not safe and that the generators had to be removed (November 15, 2018 Trial Transcript at p. 40, lines 21-p. 41, line¹). Also, this was a violation of the South Florida Fire Code (November 15, 2018 Trial Transcript at p. 41, lines 2-4). This trial testimony was unrebutted. The Landlord also introduced at trial a notice requiring tenants who had placed tape on their windows and doors to remove same or face a $150 fine. (R. 152). On September 18, 2017, Alonso sent a letter that he was not going to remove the tape and was going to leave the tape on until the hurricane season was over (November 19, 2018 Trial Transcript at p. 194, lines 12-15). A notice dated September 25, 2017 was submitted by the Property Manager to Alonso advising that he had seven days to remove the tape on his windows or face eviction (R. 153). Also, the Property Manager responded, when asked if she had targeted Tenants specifically for placing tape on their windows, “to all the tenants” (November 16, 2018 Trial Transcript at p. 91, lines 7-16). The Property Manager testified that although there were other residents that also placed tape on their windows [*20] [*20] (November 15, 2018 Trial Transcript at p.42, line 22-p.43, line 9), these individuals eventually removed the tape, but Alonso did not remove the tape from his windows until he received the seven-day notice (November 16, 2018 Trial Transcript at p. 91, lines 19-21). Similarly, as to any requests or complaints by Tenants regarding air conditioning post-Hurricane Irma, no finding of discrimination was made by the successor judge prior to determining that there was a pattern of retaliation by the Landlord against Tenants, nor is such a finding supported by the record. Tenants admit in their answer brief that “on Saturday, September 9, 2017, all the units in the complex lost power due to damage caused by Hurricane Irma.” The Property Manager testified at trial that when Tenants requested a generator, there was no power in the whole community (November 15, 2018 Trial Transcript at p. 43, lines 10-13). There is no evidence of record that other tenants who were without power and requested air conditioning were somehow treated differently than Tenants. Moreover, Tenants failed to show how a prior termination notice which was issued by the Landlord in 2013 amounts to retaliation where no eviction action was pursued at that time and Tenants ultimately remained at the property as tenants. The Violation of Obligation of Good Faith Defense Tenants raised as their second affirmative defense that a landlord has, pursuant to Section 83.44, Fla. Stat., an obligation of good faith in its performance of a rental agreement and that Landlord allegedly violated that obligation by¹) attempting to [*21] [*21] evict Tenants based on the facts and circumstances of this case, noting that Tenants’ son is physically disabled and²) by failing to comply with the requirements of state law “and/or even attempting to resolve the alleged problems with the Defendant prior to Plaintiff’s institution of this action.” Section 83.44, Fla. Stat. provides that “[e]very rental agreement or duty within this part imposes an obligation of good faith in its performance or enforcement.” The Landlord filed a reply to this “affirmative defense” alleging that it fails to state an affirmative defense. We agree. Tenants have failed to show how any purported violation of the Landlord’s duty of good faith would operate as a complete bar to the eviction once the Landlord has shown good cause for the eviction. The Equitable Forfeiture Defense The successor judge also found that “based upon the testimony and evidence of the Defendants’ son’s condition, it would be unconscionable to remove the Defendants based on the facts and circumstances of this case” and that “a court of equity may relieve a lessee against forfeiture when the effect of enforcing the default would be unconscionable, inequitable or unjust.” The successor judge’s ruling that Tenants prevail on their equitable forfeiture defense is based again on the Tenants’ son’s condition. As stated above, the conclusion for which Dr. Fornos’s testimony is cited in the final judgment is not supported in the record. Further, the cases cited in support of the trial court’s ruling are distinguishable as they involve long-term commercial leases or cases where the [*22] [*22] lessee had made improvements to the property. Contrast Rader v. Prather, 100 Fla. 591, 597 (1930) (lessee had constructed building on commercial property; court of equity found lessor had waived right to enforce forfeiture clause where agreement was sufficient to mislead the lessee, to his prejudice, into the honest belief that a waiver was intended or consented to by the lessor); Sharpe v. Sentry Drugs, Inc., 505 So. 2d 618 (Fla. 3d DCA 1987) (lessee’s act of subletting small portion of lease without lessor’s consent insufficient to forfeit entire lease for remainder of 30-year lease period); Smith v. Winn Dixie, Inc., 448 So. 2d 62 (Fla. 3d DCA 1984) (longstanding commercial lease where lessee Grand Union had paid taxes for years and repaired roof). Here, the eviction action was of a monthto-month residential tenancy following non-renewal of a yearly lease where there is no factual record that Tenants made any improvements to the property. For the foregoing reasons, the Final Judgment below is reversed and the cause is remanded with directions to enter judgment for Appellant. Appellant’s motion for appellate attorney’s fees and costs is granted, the amount to be fixed by the trial court on remand. Appellees’ motion for attorney’s fees and costs is denied. TRAWICK AND WALSH, JJ., concur. COPIES FURNISHED TO COUNSEL OF

RECORD AND TO ANY PARTY NOT

REPRESENTED BY COUNSEL

[*23] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

2 The Lease Renewal Addendum dated September 4, 2014 (R. 156) contains a handwritten notation under Special Provisions that “Resident will be able to break the lease at any time giving 30 days writing [sic] notice. Also can’t mistreat any Villas of Hialeah staff or throw water by balcony or hallway”. Tenants produced at trial a second copy of the Lease Renewal Addendum (R. 157) which does not contain the handwritten notation. However, it also is missing a second signature for “Authorized Agent for the Landlord” which is included on the first Lease Renewal Addendum (compare R. 156) and would appear to be an incomplete document. Notwithstanding, Tenants argued that the Property Manager had unilaterally added the handwritten terms after Tenants initialed the Lease Renewal Addendum dated September 4, 2014. This argument formed the basis for the successor judge’s determination that the Property Manager was not trustworthy, thus rejecting her entire trial testimony. Specifically, the successor judge found in the Final Judgment that “a comparison of both Addendums clearly demonstrates Ms. Hernandez’ pattern of retaliatory behavior against Defendants.”