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.
final until disposition of timely filed motion for rehearing.
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 O'Hara
McCoy & Ford, P.A., Fort Lauderdale, for
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
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.
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]
. . . .
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.
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
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.
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.
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. ...