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Wesner v. JMS Marinas, LLC

Florida Court of Appeals, Second District

August 25, 2017

DANIEL WESNER, d/b/a FISH TALES, Appellant,
v.
JMS MARINAS, LLC, d/b/a MAXIMO HARBORAGE MARINA, a Delaware limited liability company, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Thomas H. Minkoff, Judge.

          Kathleen Sweeney Ford, of Ford & Ford, P.A., St. Petersburg, for Appellant.

          Samuel J. Heller, of Heller Goldberg, P.A., St. Petersburg, for Appellee.

          SILBERMAN, Judge.

         Daniel Wesner, d/b/a Fish Tales ("Wesner"), seeks review of the partial summary judgment awarding JMS Marinas, LLC, d/b/a Maximo Harborage Marina ("JMS"), possession of the leased premises that are the subject of this action for eviction and related damages. We conclude that the trial court erred in granting summary judgment because there is a genuine issue of material fact regarding JMS's standing to seek possession of the leased premises. We therefore reverse and remand for further proceedings.

         The underlying action arose from a dispute over the payment of percentage rents under a commercial lease agreement. The lease was executed by Wesner as tenant and Maximo Harborage Marina, LLC ("Maximo Harborage"), as landlord. The lease requires the tenant to pay the landlord a base rent or percentage of its gross annual revenues, whichever is greater. Wesner was current on the base rents, but Maximo Harborage asserted that since January 2008, Wesner failed to provide financial information necessary to calculate percentage rents.

         Maximo Harborage filed its complaint and a motion to determine rents in July 2014. At that time, however, Maximo Harborage was not entitled to "maintain any action, suit, or proceeding in any court" in Florida because it had not complied with Florida's registration requirements. See § 865.09(9)(a), Fla. Stat. (2014). Maximo Harborage eventually acknowledged this deficiency and was granted leave to file an amended complaint substituting JMS as the plaintiff.

         The lease defines the landlord as "the current owner or owners of the fee title to the Demised Premises or the leasehold estate under a ground lease of the Demised Premises at the time in question." It also provides that in the event the landlord transfers its title or interest in the property to a third party, the third party will be recognized as the landlord. Both the original and amended complaint contain allegations that the plaintiff is the landlord and owner of the real property that is the subject of the eviction action.

         Since the inception of the action, Wesner has been asserting that he is unsure of the identity of the proper plaintiff. In his answer to the amended complaint, Wesner denied the material allegations. Wesner also challenged JMS's claim that it was the owner of the demised premises and raised the issue of the identity of the landlord or its agent. Additionally, Wesner challenged JMS's assertions that it had entered into a lease with Wesner and was entitled to maintain any action against Wesner. Wesner tried to assert that JMS was not his landlord at a March 25, 2015, pretrial hearing, but the court refused to allow the argument because it was not properly noticed. And Wesner again questioned JMS's standing to sue in opposing JMS's motion for partial summary judgment of possession.

         Wesner also filed a supplemental response to JMS's motion to determine rents in which he asserted, among other things, that JMS was not the owner of the property in question. Wesner asserted that original landlord Maximo Harborage changed its name to Harborage Marina, LLC ("Harborage Marina"), and that Wesner paid rent to Harborage Marina from January 2008 to June 2009. In June 2009, Harborage Marina conveyed the real property including the demised premises to Harborage Land, LLC ("Harborage Land"). Since that time, Wesner has been paying rent to nonparty Harborage Land. Wesner also filed a certified copy of the warranty deed in the record.

         At the June 16, 2015, hearing on JMS's motion to determine rents, Wesner asserted, "I was hoping that the plaintiffs would clarify who exactly was suing." The court responded, "That sounds to me like you're leading up to ground[s] we've hashed over at previous hearings, [counsel]. I think it's pretty clear who's suing your client." The court prohibited Wesner from making any further standing arguments.

         In an apparent response to Wesner's assertions, JMS elicited testimony from John Stanford Johnson, one of its owners, that JMS is the "successor landlord to the entity that originally signed the lease." During cross-examination, Wesner inquired into the basis for this assertion. Defense counsel showed Johnson a copy of the June 2009 warranty deed in which Harborage Marina (f/k/a Maximo Harborage) conveyed the real property to Harborage Land. Johnson testified that the warranty deed was executed when "we split the marina from the wet portion to-and the dry portion into two portions that are in turn held by Harborage Marina, LLC. So you've got Harborage Land, LLC. It split that off into a separate LLC." Counsel asked Johnson whether the warranty deed conveyed all the land owned by Harborage Marina, but the court interrupted and told counsel to focus on the amount of rents due.[1]

         Wesner placed the standing issue squarely before the court by filing three affidavits challenging JMS's standing in response to the motion for partial summary judgment of possession. In the first affidavit, Wesner himself asserted that JMS is not and has never been his landlord. Wesner said that several years after he signed the lease, the marina managers told him that Maximo Harborage changed its name to Harborage Marina and directed him to pay the rent to Harborage Marina. Some years later, the managers told him that the property had been transferred to Harborage Land and directed him to pay the rent to Harborage Land. Wesner asserted that Harborage Land was his current landlord. Wesner also claimed that Harborage Land had ...


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