GULFSTREAM PARK RACING ASSOCIATION, INC., Appellant/Cross-Appellee,
MI-V1, INC., a Florida Corporation, Gerry Kelly, an Individual, and Xtreme Electronics Systems, Inc., a Florida Corporation, Appellees/Cross-Appellant.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John B. Bowman, Judge; L.T.
Case No. CACE 10-030143.
M. Reiter and Jordan S. Cohen of Wicker Smith OHara McCoy &
Ford, P.A., Fort Lauderdale, for appellant/cross-appellee.
E. Keechl of Kenneth E. Keechl, P.A., Wilton Manors, for
appellee/cross-appellant MI-V1, Inc., a Florida corporation
and appellee, Xtreme Electronics Systems, Inc., a Florida
defendant in a landlord-tenant dispute appeals a final
judgment. The landlord argues the trial court erred in
instructing the jury on affirmative defenses for the leases
guarantor after granting its motion for partial summary
judgment against the guarantor. The tenant cross-appeals the
final judgment against it. We agree with the landlord on the
direct appeal and reverse for entry of a judgment against the
guarantor. We affirm all issues on the cross-appeal without
landlord and tenant entered a five-year lease, which provided
the tenant would pay monthly rent in exchange for use of the
landlords premises as a nightclub. The guarantor guaranteed
the lease, which provided that the guarantor:
absolutely and unconditionally guarantees to [landlord] ...
the due prompt and punctual performance of all obligations
of, and the prompt payment when due at all times hereafter of
any and all amounts owed by its subsidiary, [tenant], under
this Agreement (including any extensions ...) to [landlord]
dispute arose when the landlord advised the tenant to vacate
the premises. The tenant filed a complaint alleging the
landlord sent a letter indicating it would no longer have
access to the premises prior to the leases expiration and
changed the locks on the door. The landlord answered and
counterclaimed against the tenant for breach of contract for
failure to pay rent. It also impleaded the guarantor.
tenant moved for partial summary judgment on liability
against the landlord. The tenant alleged the landlords
actions violated section 83.05(2), Florida Statutes (2017)
because it engaged in self-help to evict the tenant. The
tenant relied on the landlords then-presidents testimony
that he changed the locks on the premises so that tenant
could not get in unless it paid rent. The tenant also relied
on the landlords response to a request for admissions in
which the landlord admitted that it never instituted judicial
action against tenant in accordance with section 83.05(2).
landlord responded the tenant had not sued the landlord for a
violation of chapter 83 and failed to allege a specific lease
provision it breached. The landlord also argued factual
issues concerning the tenants breach of the lease prior to
its eviction prevented a summary judgment and that the motion
was procedurally improper. The trial court denied the motion
leaving the issues for trial.
landlord moved for summary judgment on liability on its
third-party claim against the guarantor. It argued that the
guarantor "absolutely and unconditionally agreed to
guarantee" the lease and the tenants obligations.
Because the tenant failed to meet its obligations, the
guarantor was liable to the landlord. It further argued the
guarantor waived all defenses.
hearing on the motion, the guarantor argued that it could
rely on the tenants defenses, including the landlords
wrongful eviction, so the ...