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JPAY, Inc. v. 10800 Biscayne Holdings, LLC

Florida Court of Appeals, Third District

June 21, 2017

JPAY, Inc., Appellant,
v.
10800 Biscayne Holdings, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Lower Tribunal No. 14-32194

          Law Offices of Jonathan A. Heller, PA and Jonathan A. Heller; Jay M. Levy, P.A. and Jay M. Levy, for appellant.

          The Bernstein Law Firm and Michael I. Bernstein and Brian G. Winger, for appellee.

          Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.

          SUAREZ, C.J.

         JPAY, Inc. ["JPAY] seeks to reverse a final order granting Appellee's amended motion for summary judgment. We affirm.

         In August 2007, Appellee landlord 10800 Biscayne Holdings ["Biscayne"] leased commercial office space to Appellant JPAY. The lease term was set to expire on September 14, 2015. JPAY failed to pay its rent, and vacated the premises in February 2013 prior to lease expiration. Biscayne sued JPAY for breach of the lease and sought damages for a late fee due for the January 2013 overdue rent, for failing to pay the February 2013 rent, and for continuing damages incurred by JPAY's abandonment of the lease agreement. Biscayne moved for partial summary judgment for unpaid rent through January 2014. JPAY moved for cross summary judgment claiming that the lease agreement had been terminated with Biscayne's service of a 2013 three-day notice, and that Biscayne had retaken the leased premises thereby precluding any further recovery or acceleration of rent due under the remaining terms of the lease agreement.

         At the February 12, 2014 hearing, Biscayne stated that it was not seeking acceleration of the entire balance due under the lease, only what was due through "today." The trial court (Arzola, J.) acknowledged that the lease had not been terminated, Biscayne was not seeking the accelerated amount, granted Biscayne's motion for partial summary judgment as to liability for rent due from February 2013 through February, 12, 2014, and denied JPAY's cross-motion for summary judgment. In the trial court's February 18, 2014 Order memorializing that holding ["JPAY I"], the court did not state that the rent had been accelerated and entered judgment for rent due only through February 12, 2014, the date of the hearing. JPAY did not appeal from that order, and satisfied the judgment.

         In October 2014, Biscayne filed a renewed motion for partial summary judgment seeking the unpaid rent due for each monthly breach that occurred after February 18 Order, beginning on March 1, 2014 through August 31, 2014. JPAY moved to strike on grounds that the February 18, 2014 Order was "final" and thus the trial court had no jurisdiction to hear any claim for damages accruing after that date. The trial court granted JPAY's motion to strike for lack of jurisdiction, agreeing that the February 18, 2014 Order was a final order.

         Biscayne then filed a new complaint [JPAY II] seeking damages for breach of the lease for overdue payments starting March 1, 2014 up to and including date of filing JPAY II. JPAY moved to dismiss and for final judgment, arguing that JPAY I was res judicata. At the hearing on these motions, JPAY asserted that Biscayne had requested the judgment for accelerated rent in JPAY I, and was thus precluded from seeking additional rents in JPAY II. On December 8, 2015, the trial court denied JPAY's motions. JPAY then filed a petition for Writ of Prohibition in this Court seeking to reverse the December 8 Order, again arguing the trial court had no jurisdiction because Biscayne actually sought and got accelerated rent in JPAY.

         I. This Court denied the petition.

         Biscayne sought final summary judgment for the full amount due under the lease for each continuing monthly breach from filing of JPAY II through the lease expiration date of September 14, 2015. JPAY answered and also moved for summary judgment. At the April 1, 2016 hearing, the trial court entered final summary judgment in Biscayne's favor. JPAY appeals. ACCELERATION ISSUE:

         The record is clear that Biscayne did not seek acceleration under the lease in JPAY I. The Complaints in both JPAY I and II contain no language of acceleration, and instead set forth clear claim for ...


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