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Dezer Intracoastal Mall, LLC v. Seahorse Grill, LLC

Florida Court of Appeals, Third District

July 3, 2019

Dezer Intracoastal Mall, LLC, Appellant,
v.
Seahorse Grill, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No.16-5479 Jorge E. Cueto, Judge.

          Rosenthal Law Group, and Alex P. Rosenthal and Amanda Jassem Jones (Weston), for appellant.

          Phillips, Cantor & Shalek, P.A., and Gary S. Phillips and Jeffrey B. Shalek (Hollywood), for appellee.

          Before EMAS, C.J., and LOGUE and HENDON, JJ.

          HENDON, J.

         Dezer 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 affirm.

         The 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.[1] 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 Section 1.1:
(k) "Operating Expenses" -Landlord's estimate of Tenant's 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 Rent.
Section 2.3 OPERATING EXPENSES. Tenant shall pay to Landlord, as Additional Rent, Tenant's 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 Tenant's 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 Tenant's 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 Tenant's Proportionate Share of the Operating Expenses based on Landlord's estimates (which estimates may be adjusted by Landlord at any time upon written notice to Tenant). . . . After the end of each calendar year (or other accounting period used by Landlord), Landlord shall furnish to Tenant a reconciliation statement setting forth in reasonable detail the actual Operating Expenses for the immediately preceding year, Tenant's Proportionate Share for such year, payments made by Tenant for such year and Landlord's new estimate of Tenant's Proportionate Share of the statement, then Tenant shall pay the difference to Landlord within thirty (30) days thereafter. If the statement indicates an overpayment by Tenant, then Tenant shall be entitled to a credit against installments next becoming due hereunder. If Tenant fails to receive the statement with the new estimate, Tenant shall continue to pay Tenant's proportionate Share of Operating Expenses based on the prior estimate and upon receipt of the new estimate shall immediately pay the difference. . . .
Section 11.28 RIDER. If any provision contained in a Rider to this Lease is inconsistent with any other provision herein, the provision contained in the Rider shall control unless otherwise provided in the Rider.

         Paragraph 8 of the rider to the lease addresses increases in the operating expenses chargeable to the ...


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