CopyPublished | Florida 5th District Court of Appeal
...5D2021-1378
LT Case No. 2017-CA-000689-15-G
KILBANE, J., concurring in result.
I concur with the majority’s affirmance of the direct appeal
and reversal of the cross appeal but write to address the landlord’s
choice of remedy pursuant to section 83.595, Florida Statutes
(2016). Because a reasonable jury could find the landlord chose to
“stand by and do nothing” after the tenants abandoned the
premises—consistent with section 83.595(3)—the court’s order
setting aside the jury verdict and subsequent amended judgment
should be reversed.
Facts
Christopher Holmquist leased his residential property (the
“Premises”) to William and Aimee Hefley for a five-year term from
April 1, 2012, to April 1, 2017....
...including the cost of repairs as well as unpaid rent and fees that
had accrued from their last payment until February 2017, when
the Premises was ultimately sold. In his pleadings, Holmquist
sought damages including unpaid rent and late fees, but did not
indicate his chosen remedy under section 83.595, Florida Statutes.
In response to the Hefleys’ interrogatories, Holmquist answered
that he retook possession of the Premises for the account of the
tenant while attempting to relet it consistent with section
83.595(2)....
...At trial, however, he asserted this answer was a
mistake because he always intended to sell the Premises—not
relet it—and his efforts were to mitigate the damage and return it
to a habitable state. He asserted his chosen remedy was to leave
the Premises vacant while trying to sell it, which he asserted fell
under section 83.595(3).
At trial, the Hefleys moved for directed verdict at the close of
Holmquist’s case asserting they had no liability for the accrued
rent because there was no evidence that Holmquist stood by and
did nothing consistent with section 83.595(3)....
...sent for
Holmquist to inspect the Premises and abandoned the Premises
after July 31, 2016, while Holmquist did all or substantially all the
things required of him under the Lease. The jury awarded
Holmquist damages including accrued rent pursuant to section
83.595(3)....
...being awarded
the accrued rent. Specifically, the court found:
[T]here was no evidence or reasonable inference
which supported the jury’s verdict that
[Holmquist] chose the third breach of contract
remedy under section 83.595, Florida Statutes,
and stood by and did nothing following [the
Hefleys’] material breach of the lease
agreement....
...trial court therefore determines that no reasonable jury could
render a verdict for that party.” Lemon v. People’s Tr. Ins. Co.,
344
So. 3d 56, 59 (Fla. 5th DCA 2022) (quoting Universal Prop. & Cas.
Ins. Co. v. Motie,
335 So. 3d 205, 206 (Fla. 5th DCA 2022)).
A. Section
83.595, Florida Statutes
Section
83.595 provides a landlord with the choice of
enumerated remedies after a tenant breaches the rental
agreement or attempts to terminate the agreement early.
§
83.595, Fla....
...;
(3) Stand by and do nothing, holding the lessee
liable for the rent as it comes due; or
6
(4) Charge liquidated damages . . . or an early
termination fee to the tenant . . . .
§ 83.595, Fla. Stat.
Under the first remedy, a landlord may decide it no longer
desires to enforce the lease, choose to “[t]reat the rental agreement
as terminated,” and resume exclusive possession of the premises
for its own purposes. Id. § 83.595(1)....
...Similarly, in accordance with the terms of the
rental agreement, the landlord could terminate the tenancy and
resume exclusive possession early under the fourth remedy. 1 In
that case, however, the tenant would be liable for specified
damages. Id. § 83.595(4)(a) (“In addition to liquidated damages or
an early termination fee, the landlord is entitled to the rent and
other charges accrued through the end of the month in which the
landlord retakes possession of the dwelling unit and charges f...
...not
treat the rental agreement as terminated but instead choose to
hold the tenant liable for a lesser amount: the difference between
the rent due under the original lease agreement and the amount
recovered by reletting the premises to another. Id. § 83.595(2); see
also Hudson Pest Control, Inc....
...tenant liable for the full amount of the rent due under the lease.”).
1 The fourth remedy “is available only if the tenant and the
landlord, at the time the rental agreement was made, indicated
acceptance of liquidated damages or an early termination fee.” Id.
§ 83.595(4).
7
The third remedy provides that a landlord may choose to
“stand by and do nothing,” holding the tenant liable for rent
accruing under the lease agreement. § 83.595(3), Fla....
...Perhaps this remedy
has been passed over because such little guidance has been
provided as to how to prove a negative: that one did “nothing.”
Consequently, this Court is tasked with addressing the availability
of the third remedy and interpreting the meaning of the phrase
“stand by and do nothing” in section 83.595(3).
B....
...129, 132
(1993))), nor should it be read hyperliterally, see Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal Texts 355
(2012) (“Literalness may strangle meaning.” (citing Utah Junk Co.
v. Porter,
328 U.S. 39, 44 (1946))). Moreover, because section
83.595 is the codification of common law, 2 it must be interpreted
in accordance with the common law except where there is a clear
intention to deviate....
...2021) (“A basic rule of textual
interpretation is that ‘statutes will not be interpreted as changing
the common law unless they effect the change with clarity.’”
(quoting Scalia & Garner, supra, at 318)).
Under the common law and its codification in section 83.595,
the landlord’s relationship to—and corresponding use of—the
premises must be congruent with its chosen remedy....
...2d at 550 (“[T]he nature of the landlord’s use
of the premises after a defaulting tenant abandons them, governs
the availability of the landlord’s remedy.” (citing Colonial
2 In 1944, the Florida Supreme Court set forth the first three
remedies now found in section
83.595, which were available to a
landlord “upon the breach, abandonment or renunciation of a lease
by the lessee before the expiration of the term.” Williams,
20 So.
2d at 347–48....
...2d 719, 720 (Fla. 1st DCA 1965); Wagner v. Rice,
97
So. 2d 267, 270 (Fla. 1957); Hyman v. Cohen,
73 So. 2d 393, 396
(Fla. 1954). In 1987, these remedies were codified in Chapter 83,
Part II (“The Florida Residential Landlord and Tenant Act”). See
§
83.595(1)–(3), Fla. Stat. (1987). The fourth remedy—also
adopted from the common law—was added in 2008. See §
83.595(4), Fla. Stat. (2008); see also Olen Props. Corp. v. Moss,
984
So. 2d 558, 560–61 (Fla. 4th DCA 2008) (rejecting argument for
common law liquidated damage remedy where it had not yet been
adopted in section
83.595).
9
Promenade v....
...under the first remedy); Geiger Mut. Agency, Inc. v. Wright,
233
So. 2d 444, 447 (Fla. 4th DCA 1970) (holding landlord who
resumed possession by ejectment was limited to the first remedy).
When a tenant has abandoned the dwelling, a landlord may
choose any available remedy. §
83.595, Fla....
...Abandonment
is established where the landlord has actual knowledge of the
tenant’s abandonment or where it is presumed because the tenant
has been absent for half the time for periodic rental payments
under the agreement, rent is overdue, and the tenant did not
provide written notice of an intended absence. Id. § 83.59(3)(c).
Despite abandoning the premises, the tenant continues to possess
the leasehold estate in the absence of further action by the
landlord....
...1953) (distinguishing between surrender of
leasehold premises and surrender of leasehold estate).
10
A landlord can resume possession of the premises by either
accepting tenant’s surrender 3 or by obtaining a writ of possession.4
See § 83.595, Fla....
...5
3 When landlord accepts surrender of the physical premises,
the lease agreement is not automatically terminated. See In re
PAVCO Enters., Inc.,
172 B.R. 114, 117 (Bankr. M.D. Fla. 1994)
(“[I]t is clear that regaining the premises is not tantamount to
termination of the lease.”). Compare §
83.595, Fla....
...the dwelling unit” to landlord) with Kanter,
68 So. 2d at 556
(distinguishing between surrender of leasehold premises and
surrender of leasehold estate).
4 A writ of possession is issued after the right to possession
has been adjudicated. See §§
83.59,
83.62(1), Fla. Stat.; Fla. R. Civ.
P. 1.580. A landlord can only recover possession in certain
circumstances. §
83.59(3), Fla....
...erminated
consistent with the first remedy; mitigate the tenant’s accruing
liability under the lease by reletting the premises consistent with
the second remedy; or seek liquidated damages or an early
termination fee consistent with fourth remedy. § 83.595(1)–(2) &
(4), Fla....
...3d at 240 (emphasis added). This appears to be a
misstatement. Under the facts of Duffner, there was no
abandonment or surrender, see id. at 240–41, so procuring a writ
of possession was the only path that would have opened the door
to the enumerated remedies in section 83.595....
...A Reasonable View of the Evidence Supported the Jury’s
Findings
Below, the jury found the Hefleys abandoned the Premises.
As the parties did not agree to liquidated damages or an early
termination fee in accordance with section 83.595(4), the jury was
left to determine whether Holmquist chose to (1) treat the Lease
as terminated and resume exclusive possession of the Premises for
himself; (2) take possession of the Premises on behalf of the
Hefleys but failed to mak...
...they surrendered the premises on July 31, 2016, and Holmquist
resumed possession of the Premises for his own account 8 on August
7 Because Holmquist never attempted to relet the Premises,
he could only recover the accrued rent under the third remedy. See
§ 83.595(2), Fla....
...replacing the carpet, placing the home for sale, moving furniture
into the home, and spending two nights in the dwelling himself.
The trial court granted the Hefleys’ motion to set aside the verdict
only as to Holmquist’s choice of remedy under section 83.595 and
extinguished his ability to recover accrued rent as a portion of the
damages.
Under the scope of this review, this Court must reverse unless
there is no view of the evidence—considered in the light most
favorable to Holmquist—that could support the jury’s finding that
he chose to “stand by and do nothing” within the meaning of
section 83.595(3).
Here, the jury found the Hefleys abandoned the Premises, and
this finding has not been appealed....
...lease as valid unless he resumed exclusive possession of the
dwelling unit after abandonment. See Williams,
20 So. 2d at 348–
49; PAVCO Enters.,
172 B.R. at 117.
As Holmquist did not pursue a writ of possession, he could
only have resumed possession within the meaning of section
83.595 by treating the abandonment as a surrender of the dwelling
unit....
...d that he
never accepted the Hefleys’ termination of the lease and that his
actions were for the purpose of securing, repairing, and selling the
home. This testimony is not dispositive as to whether Holmquist
resumed possession for the purposes of section
83.595.
18
provide access for workers or contractors, or make necessary—
even if not agreed upon—“repairs, decorations, alterations, or
improvements” consistent with section
83.53(1)–(2)....
...effect.”); see also §
83.47(1)(a), Fla. Stat. This would include
cleaning, painting, affecting repairs, and replacing the carpet.
Thus, under these facts, these actions and uses would not be
incongruent with Holmquist’s choice to “stand by and do nothing”
consistent with section
83.595(3).
II....
...authorized duties of the landlord under the Lease or Florida law:
placing the home for sale, moving furniture into the Premises, and
spending two nights in the home. However, under the facts of this
case, these acts did not preclude Holmquist from asserting he
chose the remedy in section 83.595(3).
A landlord cannot resume possession of the leased property
and simultaneously seek accruing rent consistent with the third
remedy....
...2d at 345–46 (noting
landlord cannot accelerate full rent due under a lease while
19
demanding possession of the premises or reletting to a third party).
Thus, a reasonable jury could find placing the home for sale was
not inconsistent with Holmquist’s remedy under section 83.595(3).
Finally, while perhaps unusual actions for a landlord, it was
not impossible for a jury to determine that Holmquist’s remaining
actions—placing a bed and dresser in the home for the purpose of
staging it for sale and spen...
...4th DCA 1992))).
Conclusion
Because this issue was rightly considered a question of fact
delegated to the jury, and the evidence—viewed in a light most
favorable to Holmquist—could support the jury’s finding that his
chosen remedy was section 83.595(3), I concur in the majority’s
decision to reverse and reinstate the jury’s verdict.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
