EXCLUSIVE MOTORING WORLDWIDE, INC. v. SORAL INVESTMENTS, INC.

• Court: District Court of Appeal of Florida
• Decided: October 6, 2022
• Docket: 21-1833
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 6, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1833 Lower Tribunal No. 21-14269 ________________

Exclusive Motoring Worldwide, Inc., et al., Appellants,

vs.

Soral Investments, Inc., Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Varca Law, PLLC, and Christopher A. Varca (Deerfield Beach), for appellants.

Patterson & Sweeny, PL, and John H. Patterson, Jr., for appellee.

Before LOGUE, LINDSEY, and MILLER, JJ.

PER CURIAM. This appeal arises from a commercial eviction and damages action

filed by Soral Investments, Inc. (“Landlord”) against Exclusive Motoring

Worldwide, Inc. and Rolando Ramirez (collectively, “Tenant”). Following

service of the complaint, both parties sought a determination of the rent due

to be deposited into the court registry pursuant to section 83.232, Florida

Statutes. The central dispute concerned whether Tenant was required to

deposit rent that had allegedly been deferred by agreement of the parties for

the period of June 2020 through April 2021 due to the COVID-19 pandemic.

Following an evidentiary hearing, the trial court ordered Tenant to

deposit the deferred rent into the court registry and further ordered that the

rent already paid by Tenant into the court registry for the period of June 2021

through September 2021, totaling approximately $53,047.42, be disbursed

to the Landlord based on the Landlord’s hardship resulting from the loss of

the rental income. Tenant appealed.

Having carefully reviewed the record on appeal, we conclude that the

trial court did not abuse its discretion in requiring payment of the deferred

rent into the court registry. We do, however, agree with Tenant that the trial

court erred in ordering disbursement of the full rent amount paid into the court

registry for June-September 2021. Section 83.232(1) provides that the trial

court may disburse all or part of the funds held in the court registry “[i]f the

2 landlord is in actual danger of loss of the premises or other hardship resulting

from the loss of rental income from the premises[.]” Here, the only evidence

supporting a finding of hardship warranting disbursement of funds was the

Landlord’s testimony at the evidentiary hearing that it required $3,000 per

month in costs to cover taxes and insurance for the property, which was less

than the full rent amount the trial court ultimately ordered to be disbursed.

To its credit, the trial court apparently addressed this issue a few days

later when it granted in part Tenant’s Emergency Motion to Stay pending this

appeal, staying disbursement of the full rent amount paid into the court

registry and instead ordering disbursement of $3,000 per month for May

through September 2021 and $3,000 of every forthcoming monthly deposit.

Although this order was included by the Landlord in an appendix filed with

this Court, the order is not before us because it was entered after the order

on appeal and therefore cannot be a basis to avoid our review of the order

on appeal. See Heritage Prop. & Cas. Ins. Co. v. Williams, 338 So. 3d 1119,

1121–22 (Fla. 1st DCA 2022) (“[T]he insureds argue that this appeal is moot

because, after the appeal was taken of the non-final order, the trial court

amended the order of appraisal. That amended order is not before us, but

both parties have referenced it in their briefs. During an appeal of a non-final

order, a trial court may proceed with all matters, including trial or final hearing

3 except for entry of a final disposition, unless there has been a stay entered.

But a trial court lacks jurisdiction to clarify or modify a non-final order while

an appeal of that non-final order is pending. So, the trial court's amending

the appraisal order cannot be a basis to avoid our review of the original

appraisal order.” (internal citations omitted)).1 Accordingly, we reverse that

portion of the trial court’s order on appeal that ordered disbursement of the

full rent amount paid into the court registry. The disbursement is properly

limited to $3,000 per month.

Affirmed in part, reversed in part.

1 On appeal, moreover, the Landlord only argues for affirmance of the trial court’s disbursement of $3,000 per month, thus essentially conceding this issue.