RUSSELL SIMPSON AS DIRECTOR OF THE DISSOLVED FLORIDA PROFIT CORPORATON AWA-USA, INC. v. 2699 INDUSTRIAL LLC
This text of RUSSELL SIMPSON AS DIRECTOR OF THE DISSOLVED FLORIDA PROFIT CORPORATON AWA-USA, INC. v. 2699 INDUSTRIAL LLC (RUSSELL SIMPSON AS DIRECTOR OF THE DISSOLVED FLORIDA PROFIT CORPORATON AWA-USA, INC. v. 2699 INDUSTRIAL 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.
Opinion
Third District Court of Appeal State of Florida
Opinion filed April 7, 2021. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0147 Lower Tribunal Nos. 19-4323 CC & 20-141 AP ________________
Russell Simpson as Director of the Dissolved Florida Profit Corporation AWA-USA, Inc., Appellant,
vs.
2699 Industrial LLC, Appellee.
An appeal from the County Court for Miami-Dade County, Milena Abreu, Judge.
Russell Simpson, in proper person.
No appearance for appellee.
Before FERNANDEZ, LOGUE, and MILLER, JJ.
MILLER, J. Appellant, Russell Simpson as Director of the Dissolved Florida Profit
Corporation AWA-USA, Inc., challenges a default final judgment of eviction
rendered in favor of his landlord, appellee, 2699 Industrial LLC, after he
failed to timely deposit rents in the court registry, as required by court order.
On appeal, Simpson contends courthouse closures precipitated by the
COVID-19 pandemic excused his performance. Discerning no error, we
affirm and write only to clarify the perimeters of pandemic-related restrictions
impacting court registry access.
BACKGROUND
In October 2019, 2699 Industrial filed a commercial eviction action
against Simpson for non-payment of rent. The lower tribunal issued an order
requiring Simpson to deposit all accrued and future rents that became due
and owing during the pendency of the action into the registry of the court.
Simpson deposited the accrued rents. However, the case languished, and
he did not tender the rents as they came due in April, May, and June of 2020.
On June 12, 2020, 2699 Industrial filed and served a motion for default
final judgment, citing the failure to deposit the required rents. Nine days
later, the trial court rendered a default final judgment of eviction authorizing
the immediate issuance of a writ of possession. The instant appeal ensued.
ANALYSIS
2 Section 83.232(1), Florida Statutes (2020), governing monetary default
in nonresidential tenancies, provides, in relevant part,
In an action by the landlord which includes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges is unpaid.
The statute further states, “[f]ailure of the tenant to pay the rent into the court
registry pursuant to court order shall be deemed an absolute waiver of the
tenant's defenses. In such case, the landlord is entitled to an immediate
default for possession without further notice or hearing thereon.” §
83.232(5), Fla. Stat.
Reciting the adage “the law is the law,” in Park Adult Residential
Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 & 812 n.1 (Fla. 3d DCA
2010), we recognized a lower tribunal has “no discretion in entering an
immediate default for possession under these circumstances. The trial court
may not consider the reasons why the deposit was not timely made.”
(Citation omitted)
This proposition, of course, yields to constitutional protections,
including due process and access to the courts. See United States v. Jin
Fuey Moy, 241 U.S. 394, 401, 36 S. Ct. 658, 659, 60 L. Ed. 1061 (1916) (“A
3 statute must be so construed, if fairly possible, as to avoid not only the
conclusion that it is unconstitutional, but also grave doubts upon that score.”)
(citation omitted); Brown v. Walker, 161 U.S. 591, 636, 16 S. Ct. 644, 655,
40 L. Ed. 819 (1896) (A “statute c[an]not abrogate or in any respect diminish
the protection[s] conferred by the constitution[].”). Consequently, it
presupposes the registry is both operational and accessible.
Here, Simpson contends restrictions on courthouse access in the wake
of the ongoing pandemic prevented him from depositing the rents. Because
the relevant administrative orders impacting court operations demonstrate
the registry was open for deposit in the weeks preceding the entry of
judgment, we are not so persuaded.
“When the threat to the United States from the novel 2019 coronavirus
disease (COVID-19) became apparent, political leaders and commentators
began calling for large governmental interventions to counter the disease’s
health and economic effects.” Thomas A. Firey, Government in a Pandemic,
Policy Analysis No. 902 (Cato Inst. 2020). Such interventions began in
Florida in early to mid-March 2020. At that time, the State Surgeon General
and Public Health Officer of Florida proclaimed a public health crisis and,
soon thereafter, the Governor declared a statewide emergency. See Scott
A. Rivkees, State Surgeon General, State of Florida Department of Health
4 Declaration of Public Health Emergency (Mar. 1, 2020) (on file with the
Florida Department of Health); § 381.00315, Fla. Stat. (The state surgeon
general, as “[t]he State Health Officer[,] is responsible for declaring public
health emergencies, issuing public health advisories, and ordering isolation
or quarantines.”); Fla. Exec. Order No. 20-52 (Mar. 9, 2020). The Florida
Supreme Court then instituted pandemic-related emergency measures and
the Eleventh Judicial Circuit issued a general administrative order halting all
but certain enumerated in-person operations. In re: COVID-19 Emergency
Measures in the Florida State Courts, Fla. Admin. Order No. AOSC20-17
(Mar. 24, 2020) (on file with Clerk, Fla. Sup. Ct.); In re: COVID-19 Emergency
Procedures Temporary Closure of Court Facilities to the Public in the
Eleventh Judicial Circuit of Florida, Fla. Admin. Order No. 20-02 (Mar. 16,
2020) (on file with Clerk, 11th Jud. Cir.).
Despite these early restrictions, on May 29, 2020, Chief Judge Bertila
Soto issued a superseding administrative order unqualifiedly restoring the
public’s “access to court facilities . . . for payment of registry deposits with
the clerk of court.” In re: COVID-19 Emergency Procedures and Continued
Closure of Courthouse Facilities to the Public in the Eleventh Judicial Circuit
of Florida, Fla. Admin. Order No. AO20-11 (May 29, 2020) (on file with Clerk,
11th Jud. Cir.).
5 In the instant case, 2699 Industrial served its motion for default
approximately two weeks after access to the court registry was reinstated.
Another nine days elapsed before the lower tribunal rendered the default
final judgment. Accordingly, Simpson had ample opportunity to deposit the
required funds.
Under these circumstances, and given that Simpson did not raise the
issue of registry access prior to the entry of default, we conclude the plain
language of section 83.232(5), Florida Statutes, compelled entry of the
default final judgment. See Cove & Deerfield Beach, LLC v. R Fast, Inc.,
310 So. 3d 413, 415 (Fla. 4th DCA 2020) (“When a tenant fails to tender
payment on or before the deadline, the court must issue a default for
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