Double Park, LLC v. Kaine Parking 125, LLC

168 So. 3d 278, 2015 Fla. App. LEXIS 9537, 2015 WL 3875457
CourtDistrict Court of Appeal of Florida
DecidedJune 24, 2015
Docket3D14-3135
StatusPublished
Cited by1 cases

This text of 168 So. 3d 278 (Double Park, LLC v. Kaine Parking 125, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Double Park, LLC v. Kaine Parking 125, LLC, 168 So. 3d 278, 2015 Fla. App. LEXIS 9537, 2015 WL 3875457 (Fla. Ct. App. 2015).

Opinions

WELLS, Judge.

In this action arising out of a landlord-tenant dispute, Double Park, LLC, the plaintiff/counter-defendant below, appeals from a non-final order directing it to place disputed excess rent money in escrow pursuant to section 83.232 of the Florida Statutes (2014). Finding we have jurisdiction to review the matter, see Fla. Discount Props., Inc. v. Windermere Condo., Inc., 763 So.2d 1084, 1084 (Fla. 4th DCA 1999) (holding that an order directing rent money be paid into the registry of the court is appealable under Florida Appellate Rule 9.130(a)(3)(C)(ii) “because it determines the right to immediate possession of property, i.e., the rent payments”), we reverse the order under review because the trial court erred in determining without an evi-dentiary hearing the amount of excess rent that must be placed in escrow under this lease. See Cascella v. Canaveral Port Auth., 827 So.2d 308, 309 (Fla. 5th DCA 2002) (applying de novo review to non-final order determining rent obligation under parties’ lease for purposes of section 832.232 of the Florida Statutes “[bjecause the appeal involves issues of contract and statutory interpretation”).

1. The facts

In March 2008, Double Park entered into an agreement to lease a parking lot from Kaine Parking 125, LLC. The subject lease is titled and provides that it is a “TRIPLE NET LEASE AGREEMENT.” See Hochhauser v. Jacobson, 795 So.2d 232, 234 n. 1 (Fla. 4th DCA 2001) (explaining that “[ujnder a triple net lease, the tenant is obligated to pay all taxes, insurance and cost of maintenance on the leased premises”). To this end, the subject lease expressly provides that Double Park “at its expense and as additional rent” is to secure certain “all risk” property insurance and liability insurance policies, and that, as an “Increase in Rent,” Double Park is responsible for paying one half of the real estate taxes, up to $35,000 per year1, on the leased premises. The lease further provides that, as a triple net lease, [280]*280Double Park is responsible for the cost of all maintenance on the premises, utilities, and certain capital improvements.2

Paragraph 17(d) of the lease agreement further provides that if Double Park sublets the property and collects rental income greater than the payments it currently makes to Kaine Parking, then Double Park’s rent obligation under the lease increases to the amount being paid by its sublessee:

(d) Any monetary consideration obtained (net of selling costs and expenses) in connection with the transfer or assignment of this Lease or received by the sublessor in connection with a sublease of the premises shall belong to the Landlord. In the event of the subletting or assignment of this Lease, if Tenant derives funds or rental income greater than what it is paying to Landlord under this Lease, the Annual Rent provided for herein shall be increased to that amount received by Tenant from sublessee or assignee of this Lease.

(Emphasis added).

After Double Park sublet the property to 120 Ocean Drive, Kaine Parking complained that Double Park had not received permission to sublet any portion of the leased property. It also claimed that, pursuant to paragraph 17(d), Double Park’s annual rent under the lease had increased because Double Park allegedly was collecting more from its sublessee than Double Park was paying to Kaine Parking under the lease. Double Park then sued Kaine Parking for breach of contract with Kaine Parking countersuing to demand payment of the excess rental income that Double Park had not paid since the inception of the sublease.3

Kaine Parking thereafter moved to require Double Park to deposit unpaid excess rental income into the court registry claiming that the amount the sublessee was paying to Double Park each month ($26,000 or $31,000, depending on the date) was greater than the rent Double Park allegedly was paying to Kaine Parking each month ($22,000, $23,100, or $24,255 per month, depending on the date). Double Park balked, claiming that its rent obligation under the lease should not be increased because the amount it paid to Kaine Parking pursuant to its triple net lease each month, when considering insurance, maintenance, taxes, utilities and capital improvements, far exceeded the rent Double Park collected from the sublessee, and requested an evidentiary hearing to determine the proper amount of excess rent to be paid into the court registry. See § 83.232(2)(b), Fla. Stat. (2014) (providing that “[i]f the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning ... [w]hat properly constitutes rent under the provisions of the lease”); Muvico Entm’t, L.L.C. v. Pointe Orlando Dev. Co., 755 So.2d 194, 194 (Fla. 5th DCA 2000) (“[S]ubsection 83.232(2), Florida Statutes (1999), specifically provides that if the tenant contests the amount of money to be paid into the court registry, the court is limited to factual and legal issues concerning what constitutes rent under the lease agreement and whether the tenant is due any credits for rent that has been paid.”).

[281]*281At a non-evidentiary hearing which followed, the court below determined that Double Park was obligated to deposit an amount equal to the difference between the gross rent collected each month by Double Park from 120 Ocean Drive (either $31,000 or $26,000 per month, depending on the date) and the base or annual rent paid by Double Park to Kaine Parking each month (either $22,000, $23,100 or $24,255 per month, depending on the date).4 Double Park appeals claiming that this method for determining whether additional or excess rent was due was error. We agree.

As an initial point, we reject Kaine Parking’s argument that Double Park waived its right to appeal the trial court’s excess rent determination when it failed to take advantage of the trial court’s offer to consider the matter at a subsequent evi-dentiary hearing. We do so because that offer amounted to no offer at all, where the court had already issued its legal ruling, making it clear that it would consider only the base monthly rental fee Double Park was obligated to pay Kaine Parking when calculating the excess rental income under paragraph 17(d) and that nothing introduced at the evidentiary hearing was going to change the court’s mind as to this point. The court even went so far as to state that if Double Park elected to proceed with an evidentiary hearing it would impose sanctions against Double' Park if it did not secure a more favorable ruling. Such a Hobson’s choice amounted to no choice at all. Thus, no voluntary waiver that would preclude consideration by this court occurred. See Marcos v. Haecker, 915 So.2d 703, 705 n. 1 (Fla. 3d DCA 2005) (citing Anderson v. Highlands Beach Dev. Corp., 447 So.2d 1045, 1046 (Fla. 4th DCA 1984) (defining Hobson’s choice as “an apparent freedom of choice with no real alternative”)).

As to the merits, we agree that a triple net lease such as the instant lease between Kaine Parking and Double Park generally “assures that the landlord will actually receive the lease’s stated profits,” that is, an amount- — -here the base or annual rent — “net” of the cost of “taxes, operating expenses, and the like.” In re McSheridan, 184 B.R. 91, 94 n. 2 (9th Cir. BAP 1995), overruled on other grounds by In re El Toro Materials Co.,

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Bluebook (online)
168 So. 3d 278, 2015 Fla. App. LEXIS 9537, 2015 WL 3875457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/double-park-llc-v-kaine-parking-125-llc-fladistctapp-2015.