final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge. Lower Tribunal No. 14-32194
Offices of Jonathan A. Heller, PA and Jonathan A. Heller; Jay
M. Levy, P.A. and Jay M. Levy, for appellant.
Bernstein Law Firm and Michael I. Bernstein and Brian G.
Winger, for appellee.
SUAREZ, C.J., and LAGOA and LOGUE, JJ.
Inc. ["JPAY] seeks to reverse a final order granting
Appellee's amended motion for summary judgment. We
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.
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.
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.
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
Court denied the petition.
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.
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 ...