DANIELLE JAPPA v. MASTER LESSEE MEZZO, LLC D/ B/ A MEZZO OF TAMPA PALMS APARTMENTS

• Court: District Court of Appeal of Florida
• Decided: September 2, 2022
• Docket: 21-2488
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DANIELLE JAPPA,

Appellant,

v.

MASTER LESSEE MEZZO, LLC d/b/a MEZZO OF TAMPA PALMS APARTMENTS,

Appellee.

No. 2D21-2488

September 2, 2022

Appeal from the County Court for Hillsborough County; Miriam Valkenberg, Judge.

Danielle Jappa, pro se.

No appearance for Appellee.

MORRIS, Chief Judge.

Danielle Jappa appeals a default final judgment entered in

favor of Master Lessee Mezzo, LLC d/b/a Mezzo of Tampa Palms

Apartments (Mezzo) in Mezzo's eviction action. Jappa raises several arguments on appeal, but we find merit in only one. Jappa was

entitled to a hearing pursuant to section 83.60(2), Florida Statutes

(2020), and the trial court's failure to conduct such hearing

requires us to reverse.

At the time the eviction action was filed, Jappa was on a

month-to-month tenancy. Jappa was provided with a nonrenewal

of lease notice at the end of March 2021, which required her to

vacate the apartment by the end of April 2021. When Jappa failed

to do so, she became a holdover tenant, entitling Mezzo to seek to

recover possession of the apartment as well as double the amount

of monthly rent while Jappa refused to vacate it. See §§ 83.58, .59.

However, when a landlord seeks to enforce its statutory rights,

certain due process requirements must be met. Specifically, section

83.60(2) provides that where a tenant raises any defense besides

payment, including but not limited to the defense of a defective

notice, the tenant must pay into the registry of the court the

accrued rent as alleged in the complaint and the rent that

continues to accrue during the pendency of the proceedings.1 The

1There is no dispute that Jappa did, in fact, raise other defenses besides payment. 2 clerk of the court must notify the tenant of the requirement in the

summons. Id.

Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.

Id. (emphasis added).

Here, the complaint was filed May 6, 2021, and the summons

was e-filed the same day. The clerk of the court's certificate of

mailing indicates that the summons was issued on May 7, 2021,

but it was not mailed until May 10, 2021. The summons itself

informs the tenant about the option to either pay the back and

accruing rent or to file the motion to determine the amount to be

paid within five working days "after the date these papers were

given to you or to a person who lives with you or were posted at

your home." The return of service of the summons indicates that

3 Jappa was personally served on May 11, 2021.2 Jappa filed her

motion to determine the amount to be paid on May 17, 2021, which

was exactly five working days after she was served with the

summons. Notably, there is no certificate of service attached to the

complaint in our record which could have served to establish that

Jappa was served electronically with the complaint prior to May 11,

2021. And Mezzo has failed to appear in this appeal.

Consequently, because the record before this court indicates

that Jappa filed her motion to determine the amount to be paid and

request for hearing within five working days after she was served

with the complaint, the trial court erred by entering a default final

judgment without holding a hearing to resolve the disputed issues.

See Axen v. Poah Cutler Manor, LLC, 323 So. 3d 800, 801 (Fla. 3d

DCA 2021) (holding that where trial court failed to dispose of

pending motion to determine rent, which had been timely filed

pursuant to section 83.60(2), final judgment for eviction was

erroneously entered); see also Prince v. MCR Apts. 1, LLC, 326 So.

2In Jappa's answer/motion to determine the amount to be paid/request for hearing, she asserted that she was served on May 11, 2021. 4 3d 228, 228 (Fla. 3d DCA 2021) (citing Axen and holding that

pending and unresolved motion to determine rent precluded entry

of default final judgment of removal). Although Jappa has already

been evicted and has moved, we conclude that this appeal is not

moot because the eviction can have collateral consequences for

Jappa when she seeks to obtain housing or credit. Thus the default

final judgment must be reversed.

Reversed and remanded.

ATKINSON and SMITH, JJ., Concur.

Opinion subject to revision prior to official publication.