84 Shopping Plaza Corporation v. Bru's Room Bird Road, LLC, Etc.

• Court: District Court of Appeal of Florida
• Decided: April 9, 2025
• Docket: 3D2023-1205
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 9, 2025. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1205 Lower Tribunal No. 14-25377 ________________

84 Shopping Plaza Corporation, et al., Appellants,

vs.

Bru's Room Bird Road, LLC, etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge.

Law Offices of Frederick Charles Sake, PA, and Frederick Charles Sake, for appellants.

Greenberg Traurig, P.A., and Michael N. Kreitzer, Jennifer L. Junger, Elliot H. Scherker, Brigid F. Cech Samole and Bethany J. M. Pandher, for appellee.

Before EMAS, SCALES and BOKOR, JJ.

PER CURIAM. In this commercial landlord/tenant dispute, 84 Shopping Plaza

Corporation (“Landlord”) and Landlord’s principal, Daniel Arias (“Arias”),

appeal a June 5, 2023 Amended Final Judgment (the “judgment”) awarding

Bru’s Room Bird Road, LLC (“Tenant”) compensatory damages, punitive

damages, and prejudgment interest against Landlord and Arias. The

judgment also relieves Tenant of its obligation to pay rent for the final thirty-

four months of the parties’ February 15, 2013 lease agreement (the “Lease”).

Without further discussion, we affirm that portion of the judgment

finding Landlord and Arias liable for compensatory and punitive damages,

but we reverse the portion of the judgment relieving Tenant of its Lease

obligations. We also remand for the trial court to recalculate prejudgment

interest on Tenant’s compensatory damages award.

A. Prejudgment Interest

The principal component of Tenant’s compensatory damages award

was for cumulative lost profits that Tenant sustained from the date it began

operations (September 1, 2015) through the month prior to Tenant voluntarily

ceasing operations as a result of COVID-19 (February 29, 2020). Yet, the

trial court awarded prejudgment interest on the totality of this lost profits

award calculated from February 15, 2013, the date the Lease was executed.

2 This was error because prejudgment interest is calculated from the

date the actual pecuniary loss is sustained. Argonaut Ins. Co. v. May

Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985) (“In short, when a verdict

liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses, plaintiff

is entitled, as a matter of law, to prejudgment interest at the statutory rate

from the date of that loss.”); Ariz. Chem. Co. v. Mohawk Indus., Inc., 197 So.

3d 99, 103 (Fla. 1st DCA 2016).

The trial court should have calculated prejudgment interest on Tenant’s

lost profits – awarded based on the testimony of Tenant’s forensic

accountant expert – monthly from September 1, 2015, the date Tenant

began operations under the Lease, through February 29, 2020, the last

month of full operations before Tenant voluntarily closed its restaurant due

to COVID-19. On remand, the trial court should evaluate evidence of lost

profits actually suffered by Tenant on a monthly basis (the fixed dates of loss)

and recalculate prejudgment interest accordingly. See, e.g., Halegua v.

Lerner, 393 So. 3d 827, 828 (Fla. 3d DCA 2024).

B. Relieving Tenant of Tenant’s Rent Obligations

Although Tenant voluntarily closed Bru’s Room in March 2020, it

appears from our record that Tenant never surrendered possession of the

premises, and that Tenant remained in possession through February 14,

3 2023, the end of the Lease term. Nonetheless, in the challenged judgment,

the trial court, without further explication and without any pleading by Tenant

requesting such relief, applied its “equitable powers” to relieve Tenant of its

post-March 2020 rent obligations.1

Because Tenant elected to pursue damages rather than rescission of

the Lease, Tenant is bound by applicable provisions of the Lease.2 We have

been cited no authority for the trial court’s exercise of inherent “equitable

powers” to forgive a party its rent obligations under the circumstances

presented in this case, and we do not discern any such authority.

1 In the challenged judgment the trial court states: “Because the Court has found that [Landlord and Arias] fraudulently induced [Tenant] to enter into the Lease, the Court has concluded that it would be inequitable for [Landlord] to enjoy any benefits naturally flowing from its fraudulent conduct. Thus, the Court finds that it is equitable to order that [Landlord] not be entitled to the payment of any Rent . . . from April 1, 2020, through the end of the lease term on February 14, 2023.” 2 “Florida law provides an election of remedies in fraudulent inducement cases: rescission, whereby the party repudiates the transaction, or damages, whereby the party ratifies the contract.” Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306, 313 (Fla. 2000). “A party’s election to sue for damages, even one procured by fraud, ratifies the contract[.]” Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors, LLC, 391 So. 3d 463, 468 (Fla. 4th DCA 2024). The party ratifying the contract accepts the burdens of the contract. Id.

4 Moreover, the judgment’s relieving Tenant of its Lease obligations is

troublesome because Tenant did not seek to rescind, reform or terminate the

Lease – nor did Tenant seek in its pleadings, or elsewhere, to be relieved of

its rent obligations under the Lease. We therefore conclude it was error for

the trial court, sua sponte, to excuse Tenant’s obligation to pay rent for the

final thirty-four months of the Lease term. See Musi v. Credo, LLC, 273 So.

3d 93, 96 (Fla. 3d DCA 2019) (“It is well established that a trial court cannot

award relief where it has not been pled.”).

On remand, after the trial court recalculates its prejudgment interest

award as ordered above, it shall reduce from Tenant’s total damages award

against Landlord a setoff in the amount of any rent erroneously excused in

the challenged judgment.

Affirmed in part; reversed and remanded in part, with instructions.