NAPLES ESTATES LIMITED PARTNERSHIP v. PAMELA MUSTON

• Court: District Court of Appeal of Florida
• Decided: September 10, 2021
• Docket: 20-1352
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

NAPLES ESTATES LIMITED PARTNERSHIP,

Appellant,

v.

PAMELA MUSTON; WILLIAM BAILIE; and UNKNOWN/UNAUTHORIZED OCCUPANT(S),

Appellees.

No. 2D20-1352

September 10, 2021

Appeal from the Circuit Court for Collier County; Joseph G. Foster, Judge.

Jody B. Gabel and J. Allen Bobo of Lutz, Bobo & Telfair, P.A., Sarasota, for Appellant.

Donald E. Christopher of Baker Donelson Bearman Caldwell & Berkowitz, PC, Orlando, for Appellees Pamela Muston and William Bailie.

No appearance for remaining Appellees.

ATKINSON, Judge. Naples Estates Limited Partnership (Naples Estates) appeals

the amount of damages it was awarded in a second amended final

judgment of damages (the Judgment) entered in its favor against

Pamela Muston and William Bailie, mobile park home owners

(Home Owners), who elected to continue to pay the original amount

of rent notwithstanding an order entered in another case to which

they were not named parties. That order (the Rent Order) stated in

pertinent part:

1. During the pendency of this action, some homeowners of Naples Estates Mobile Home Park ("Participating Homeowners") represented by Naples Estates Homeowners Association, Inc. (the "Association") have contested the lot rental amount charged by Naples Estates Limited Partnership ("Owner") and have refused to pay a portion of each Participating Homeowner's monthly lot rental amount as defined in Section 723.003(2), Florida Statutes. The disputed rents are the difference between what a Participating Homeowner has paid monthly since May 1, 2007 and six hundred dollars ($600) per lot per month for standard lots and six hundred ten dollars ($610) per lot per month for premium lots (the "Disputed Funds"). . . .

3. Each Participating Homeowner shall pay their portion of the Disputed Funds into the Court Registry on or before 09 September 2013. Time is of the essence. A failure to timely deposit all Disputed Funds shall be deemed a default of this order.

4. Any Participating Homeowner in default of this order shall not be eligible for membership in any putative

2 class which may be approved in this action; shall be subject to eviction pursuant to the proceedings set forth in Section 723.061, Florida Statutes; and shall be deemed to have waived any defenses, other than payment, in any eviction action based upon such default as set forth in Section 723.062(2), Florida Statutes.

In compliance with paragraph 3 of the order, on September 9,

2013, the Home Owners made an initial payment into the registry of

$8,645.76—the difference between $600 per month and what they

had paid per month from May 1, 2007, to September 1, 2013.

However, they then continued to pay the amount that she

contended was due, as opposed to the $600 per month that Naples

Estates claimed they owed, which Naples Estates accepted until

October 1, 2015.

On October 28, 2015, Naples Estates sued the Home Owners

for eviction and damages (eviction action). Prior to instituting the

suit, Naples Estates mailed the Home Owners a letter pursuant to

section 723.061(1)(a), Florida Statutes (2015), demanding that they

remit $4,569.73 for the difference between what they paid during

the preceding twenty-four months and the $600 per month that

Naples Estates stated they owed.

3 Pursuant to an order entered by the court in the eviction

action, the Home Owners deposited $11,169.73 into the court

registry, representing the total amount in Naples Estates' demand

letter plus monthly rent of $600 from the date of the filing of the

complaint through August 31, 2016. The court indicated that it

would reserve ruling on the issue of whether Naples Estates "waived

the right to collect rents for all months prior to filing the Complaint

in which Defendants tendered a rental payment to Plaintiff that

Plaintiff accepted without objection or exception." The court further

indicated that it would return a portion of the funds deposited into

the registry if the court determined at trial that waiver occurred or

"that a different amount of monthly rent, less than the $600.00

demanded by the Plaintiff was reasonable." Thereafter, the Home

Owners continued to pay $600 each month into the court registry.

After a trial, the court awarded Naples Estates $30,600, for

the rent for the period from October 2015 through December 2019.

It directed the Clerk to disburse the balance of the funds in the

court registry to the Home Owners.

Naples Estates argues on appeal that the trial court erred by

failing to award it $4,569.73 (the full $600 per month that the

4 Home Owners failed to pay during the twenty-four months before it

filed suit). Although not explicitly articulated in the sparsely

worded Judgment, it is apparent from the record, including the

amount awarded and the Home Owners' written closing, that the

trial court credited the Home Owners' defense of waiver and

estoppel. The Home Owners argued below, and now argue on

appeal, that Naples Estates waived the right to collect the entire

$600 per month from them during the twenty-four months prior to

the eviction action because it accepted their payments of lesser

sums during that time.

Naples Estates asserts that the Home Owners waived their

right to assert defenses other than payment, such as waiver and

estoppel, because they failed to deposit the disputed rent from

October 2013 through October 2015. Section 723.063, Florida

Statutes (2015) governs a mobile home owner's defenses to an

action for rent or possession and states, in pertinent part, "In any

action based upon nonpayment of rent or seeking to recover unpaid

rent, or a portion thereof, the mobile home owner may defend upon

the ground of a material noncompliance with any portion of this

chapter or may raise any other defense, whether legal or equitable,

5 which he or she may have." See § 723.063(1). To raise these

defenses, the mobile home owner must pay the disputed rent into

the court registry.

(2) In any action by the park owner or a mobile home owner brought under subsection (1), the mobile home owner shall pay into the registry of the court that portion of the accrued rent, if any, relating to the claim of material noncompliance as alleged in the complaint, or as determined by the court. The court shall notify the mobile home owner of such requirement. The failure of the mobile home owner to pay the rent, or portion thereof, into the registry of the court as required herein constitutes an absolute waiver of the mobile home owner's defenses other than payment, and the park owner is entitled to an immediate default.

§ 723.063(2). It is apparent from the introductory clause, "In any

action by the park owner . . . brought under subsection (1)," that

the rent deposit requirement did not begin until the eviction action

against the Home Owners had commenced, after which point the

Home Owners did deposit the requisite amount.

However, although not waived by a failure to comply with

section 723.063(2), the Home Owners' waiver and estoppel defense

is unavailing. In order for a waiver to occur there must be: (1) a

right, privilege, or benefit that existed at the time of the waiver and

which may be waived; (2) the actual or constructive knowledge of

6 that right, privilege, or benefit; and (3) an intention to relinquish

that right, privilege, or benefit. See Arbogast v. Bryan, 393 So. 2d

606, 608 (Fla. 4th DCA 1981). A waiver may be "implied from

conduct, the acts, conduct, or circumstances," but it "does not arise

from forbearance for a reasonable time." Fireman's Fund Ins. Co. v.

Vogel, 195 So. 2d 20, 24 (Fla. 2d DCA 1967).

Naples Estates accepted direct payments from the Home

Owners for less than the full $600 rent for twenty-four months

preceding the eviction action. The Home Owners were fully aware

during this time that Naples Estates was contending that the proper

amount of rent was $600. Naples Estates had served the Home

Owners with a copy of the Rent Order—which required payment of

the disputed portion of the rent into the court registry. And the

Home Owners complied with its directive by making a payment of

$8,645.76 into the court registry.

The Home Owners argue that the Rent Order only directed a

single payment of the disputed rents from May 2007 through

September 2013. They contend that it did not create a continuing

obligation to deposit the $600 per month. But that interpretive

dispute about the Rent Order's language is no more important than

7 the now irrelevant question of whether it should have been binding

on the Home Owners even though they were purported strangers to

the litigation in which it was entered. What is relevant is that they

were made aware that Naples Estates was charging them $600 per

month, a rate that the trial court ultimately approved in the case

brought against them individually.

Muston admitted at trial that she knowingly paid less than the

amount required under the Rent Order prior to the pendency of the

eviction action. And although it received less than the amount it

contended that it was owed during the twenty-four months, Naples

Estates was operating under the reasonable presumption that the

balance was being paid into the registry. Under these

circumstances, by accepting less than the full amount, Naples

Estates did not knowingly relinquish its right to the full amount—

the difference between the two being the subject of the ongoing

litigation of which both parties were very much aware. See

Arbogast, 393 So. 2d at 607 ("Waiver is the intentional

relinquishment of a known right, or the voluntary relinquishment of

8 a known right, or conduct which warrants an inference of the

relinquishment of a known right.").1

The record justifies no conclusion other than that the trial

court denied Naples Estates the difference in rent during the

twenty-four-month period based on an erroneous finding of waiver

and estoppel. In their written closing, the Home Owners concede

that they "owe[d] [Naples Estates] rent at the rate of $600 per

month for all months since filing of the eviction lawsuit." And the

trial court ultimately approved of the $600 rate. In other words,

but for the waiver and estoppel defense, the Home Owners owed the

entire $600 following the issuance of the Rent Order.

As such, we need not address the Home Owners' contention

that the Rent Order did not bind them because it was entered in a

case to which they were not parties. We need not reach the

questions of whether the Home Owners were part of the class or

1 Equally unavailing for these reasons is the Home Owners' argument that the parties' course of dealings established that the rent during the twenty-four-month period was what Naples Estates accepted from the Home Owners, not the $600. The suggestion that an oral lease was created by Naples Estates' acceptance of a lesser amount with the understanding that the difference between that and the demanded amount would be deposited in the registry during an ongoing dispute about the proper amount defies logic.

9 whether they were statutorily bound by the association as their

representative. See §§ 723.075(1) ("Upon incorporation and service

of the notice described in s. 723.076, the association shall become

the representative of all the mobile home owners in all matters

relating to this chapter, regardless of whether the homeowner is a

member of the association."), .037(1) ("The homeowners' association

shall have no standing to challenge the increase in lot rental

amount, reduction in services or utilities, or change of rules and

regulations unless a majority of the affected homeowners agree, in

writing, to such representation.").

By the time Naples Estates filed suit against the Home

Owners, they had already been on notice that the landlord was

charging them more rent than they thought they owed and had

been demanding it for at least the twenty-four months in question

before the time of filing suit. At that point, the parties were in a

run-of-the-mill rent dispute, and Naples Estates' actions for breach

of lease and damages for unpaid rent were not necessarily reliant

on the validity of the Rent Order itself.2 The landlord made it clear

2Naples Estates also argued that the per curiam affirmance of the Rent Order, Naples Estates Homeowners Ass'n, Inc. v. Naples

10 it expected rent at a specified rate; the tenants disagreed that was

what they owed. Ultimately the trial court concluded that the

amount of rent due to Naples Estates was the $600 per month that

Naples Estates had charged but the Home Owners had not paid.

There is nothing in the record to indicate that the trial court

found the $600 rental rate unenforceable during the twenty-four-

month period. Indeed, the trial court lacked discretion to award a

lower amount of rent absent a finding that the rate was

unreasonable. Section 723.033(1) authorizes the trial court to

refuse to enforce the rent increase if it finds, as a matter of law, that

"a mobile home lot rental amount, rent increase, or change, or any

provision of the rental agreement, to be unreasonable." It also

Estates Limited Partnership, 137 So. 3d 385 (Fla. 2d DCA 2014), constitutes law of the case and confirms the validity and enforceability of the Rents Order for purposes of this appeal. We need not address Naples Estates' argument—based on Hollywood Mobile Estates Ltd. v. Hollywood Estates Independent Tenants Ass'n, 67 So. 3d 1194, 1196 (Fla. 4th DCA 2011)—that the home owners were real parties in interest in the case in which the Rents Order was entered. Even if they were, the appeal from that case could not constitute law of the case because it was from a separate lawsuit. Cf. TRW Auto. U.S. LLC v. Papandopoles, 949 So. 2d 297, 301 (Fla. 4th DCA 2007) ("This court's ruling in Nowell cannot be the law of the case in Papandopoles and Yampa because they are separate lawsuits involving different claims, raised by different plaintiffs, and arising out of different accidents.").

11 authorizes the court to provide "such other equitable relief as

deemed necessary." Id. However, the amount is only unreasonable

under 723.033(3) if it "is in excess of market rent." There was no

evidence presented at trial concerning whether the rent in the

twenty-four months before the eviction action was consistent with

the market rent. And the trial court's approval of prospective rent

at that rate dispels any ongoing debate as to its reasonableness.

Nor is there—or was there ever in Naples Estates' case against the

Home Owners—any debate about Naples Estates' compliance with

the other statutory requirements for raising rent. See generally §§

723.033, .037, and .038, Fla. Stat. (2007).

This is a rent dispute in which Naples Estates dispositively

established the amount of rent the Home Owners were required to

pay, and the defense of waiver and estoppel did not excuse their

obligation to do so. Because the Home Owners owed the full rent in

the twenty-four months preceding the eviction action, the trial court

erred in failing to award Naples Estates the additional $4,569.73

that the Home Owners paid into the court registry.

Reversed in part and remanded.

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.

12 Opinion subject to revision prior to official publication.