Appeal from the Circuit Court for Miami-Dade County, Jorge E.
Cueto, Judge. Lower Tribunal No.16-5479
Law Group, and Alex P. Rosenthal and Amanda Jassem Jones
(Weston), for appellant.
Cantor & Shalek, P.A., and Gary S. Phillips and Jeffrey B.
Shalek (Hollywood), for appellee.
EMAS, C.J., and LOGUE and HENDON, JJ.
Intracoastal Mall, LLC ("Landlord") appeals from a
final judgment in favor of Seahorse Grill, LLC
("Tenant"), finding that the Tenant was not in
breach of the commercial lease and has paid all amounts due
under the lease and the rider to the lease. Based on the
clear and unambiguous language of the lease and the rider, we
Landlord filed a breach of contract and eviction action
against the Tenant, alleging that under the terms of the
commercial lease, the Tenant has failed to pay rent and other
charges due under the lease. The lease provides that
the "rent" includes the "minimum rent" of
$19,481 per month (plus applicable sales and use taxes
thereon) and "additional rent." As utilized in the
lease, the term "additional rent" means any other
amounts due under the lease except for the "minimum
rent." In the instant case, the "additional
rent" in dispute are the "operating expenses."
The lease provides, in relevant part, as follows:
Section 1.1 REFERENCE PROVISIONS. Where used
in this Lease, the designated terms hereinafter set forth
shall have the meanings ascribed by the provisions of this
(k) "Operating Expenses"
-Landlords estimate of Tenants Proportionate Share of
Operating Expenses for the calendar year 2012 is $5,753.31
per month, which amount shall be due from Tenant on the first
(1st) day of each month along with the Minimum
Section 2.3 OPERATING EXPENSES. Tenant shall
pay to Landlord, as Additional Rent, Tenants Proportionate
Share of all costs and expenses of owning, operating,
servicing, managing, maintaining, repairing, replacing,
securing, insuring and improving the Shopping Center
("Operating Expenses"), less any contributions to
Operating Expenses received by Landlord from Anchor tenants
and/or from those outparcel tenants, if any, whose premises
are excluded from the calculation of Tenants Proportionate
Share in accordance with the next sentence....
Prior to the Rent Commencement Date and each calendar year
thereafter ..., Landlord shall furnish to Tenant a written
estimate of the Operating Expenses and Tenants Share thereof
for the ensuing calendar year or portion thereof. Tenant
shall pay to Landlord on the first day of each calendar month
during the Term, in advance, one-twelfth of Tenants
Proportionate Share of the Operating Expenses based on
Landlords estimates (which estimates may be adjusted ...