final until disposition of timely filed motion for rehearing.
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.
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"
-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
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.
8 of the rider to the lease addresses increases in the
operating expenses chargeable to the ...