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Gulfstream Park Racing Association, Inc. v. MI-V1, Inc.

Florida Court of Appeals, Fourth District

December 18, 2019

GULFSTREAM PARK RACING ASSOCIATION, INC., Appellant/Cross-Appellee,
v.
MI-V1, INC., a Florida corporation, GERRY KELLY, an individual, and XTREME ELECTRONICS SYSTEMS, INC., a Florida corporation, Appellees/Cross-Appellant.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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.

          Alyssa M. Reiter and Jordan S. Cohen of Wicker Smith O'Hara McCoy & Ford, P.A., Fort Lauderdale, for appellant/cross-appellee.

          Kenneth 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 Corporation.

          May, J.

         The 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 lease's 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 further comment.

         The landlord and tenant entered a five-year lease, which provided the tenant would pay monthly rent in exchange for use of the landlord's 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] . . . .

         The 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 lease's 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.

         The tenant moved for partial summary judgment on liability against the landlord. The tenant alleged the landlord's actions violated section 83.05(2), Florida Statutes (2017) because it engaged in self-help to evict the tenant. The tenant relied on the landlord's then-president's 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 landlord's 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).

         The 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 tenant's 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.

         The 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 tenant's obligations. Because the tenant failed to meet its obligations, the guarantor was liable to the landlord. It further argued the guarantor waived all defenses.

         At the hearing on the motion, the guarantor argued that it could rely on the tenant's defenses, including the landlord's wrongful eviction, so the motion should be denied. The trial court responded:

As far as the first motion, the [landlord's] Motion for Summary Judgement against [guarantor] as to the liability issue, the lease appears to be pretty clear and unambiguous. Guarantees the debt, so I'm ruling therefore that motion is granted as to the liability. ...

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