Sheradsky v. Basadre

452 So. 2d 599
CourtDistrict Court of Appeal of Florida
DecidedMay 22, 1984
Docket82-442, 83-701
StatusPublished
Cited by16 cases

This text of 452 So. 2d 599 (Sheradsky v. Basadre) 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
Sheradsky v. Basadre, 452 So. 2d 599 (Fla. Ct. App. 1984).

Opinion

452 So.2d 599 (1984)

Samuel SHERADSKY, Trustee, Appellant,
v.
Jesus BASADRE, Egbert E. Gorra, Georgina D. Gorra, His Wife, Egbert A. Gorra and Teresita Gorra, His Wife, Appellees.

Nos. 82-442, 83-701.

District Court of Appeal of Florida, Third District.

May 22, 1984.
Rehearing Denied July 16, 1984.

*600 Steven R. Berger, Samuel Sheradsky, Miami, for appellant.

Kenneth J. Duckworth, Miami, for appellees.

Before SCHWARTZ, C.J.,[*] and BASKIN and FERGUSON, JJ.

ON MOTION FOR REHEARING

FERGUSON, Judge.

In the action below, County-Wide Commercial Laundries, Inc. (original plaintiff) obtained a judgment for wrongful eviction against the purchasers of an apartment house, Basadre and the Gorras (defendants/third-party plaintiffs), who in turn obtained a third-party judgment against the seller of the property, Sheradsky (third-party defendant). The novel procedural question presented is whether the third-party defendant may obtain relief from the third-party judgment by successfully challenging the merits of the original plaintiff's case, even though defendants/third-party plaintiffs have not taken an appeal from the original judgment. The substantive question involved is whether a lease agreement which provides for automatic renewal at the end of the period, without more, contemplates a perpetual lease.

Appellant has persuaded us that reversal is required. Our holding on the first question is that, notwithstanding the failure of a defendant/third-party plaintiff to appeal, where there is error in the original judgment a third-party defendant may seek review of that judgment in an attempt to set aside the otherwise error-free third-party judgment. On the second question, we hold in accordance with settled authority that, in the absence of clear intent of the parties to create a lease in perpetuity, a covenant to renew is satisfied by one renewal.

*601 In 1971, appellant Sheradsky purchased the Colony House Apartments. Approximately two years earlier, the prior owners had entered into a purported business lease agreement whereby County-Wide Commercial Laundries, Inc. (now Commercial Laundries, Inc.) installed washing machines on the premises. This agreement, dated November 26, 1969, provided for an initial term of five years, and further provided that:

This lease shall automatically renew under the same terms and conditions as listed above, unless either party, by written notice within 60 days of expiration date, declines to renew said lease.

Sheradsky testified that he was unaware of, and had no record notice of, any specific business lease, and that he assumed there was only a month-to-month tenancy which was terminable at will.

In 1980, Sheradsky agreed to sell the property in question to appellees Basadre and the Gorras. Among the documents presented to the trial court regarding the sale was an affidavit executed by both parties stating that any contract regarding the income from washers and dryers "shall be terminated at the time of closing." Prior to closing, Sheradsky telephoned a County-Wide officer and told him that the machines had to be removed.

When the new purchasers took possession of the premises, they removed County-Wide's machines. County-Wide took the position that its five-year lease automatically renewed itself in 1974 and again in 1979, and brought suit against the purchasers Basadre and the Gorras for wrongful eviction under the agreement. The purchasers then sought recovery against Sheradsky under the terms of the aforementioned affidavit. Both Sheradsky (third-party defendant) and Basadre and the Gorras (defendants/third-party plaintiffs) defended against County-Wide's claim, contending (1) the lease was not notarized and was thus insufficient to bind them, and (2) assuming arguendo the validity of the lease, only one renewal was contemplated and there was no further automatic renewal in 1979. Also, as between Sheradsky and defendants/third-party plaintiffs, it was argued that the latter had the same knowledge and information regarding the existence of the lease as Sheradsky, and that any notice to Sheradsky was notice to them, precluding third-party liability.

The trial court found in favor of plaintiffs and awarded them $6,241.12 in damages for wrongful eviction, plus costs. The court also ruled, without further hearing, in favor of defendants/third-party plaintiffs on the third-party claim. This appeal is taken from the original judgment.

The same procedural question involving the right of a third-party defendant to appeal the merits of the original judgment was addressed by a federal court in the highly persuasive case of Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734 (5th Cir.1980). In Kicklighter, a buyer brought suit against the seller of fingernail restoration kits, seeking damages for injuries suffered from use of the product. The seller filed a third-party complaint against the manufacturer for indemnification. The trial court entered a judgment against the seller on the original complaint and a judgment against the manufacturer on the seller's suit for indemnification. The seller did not appeal. The manufacturer instead took an appeal, and sought to assert an error in the main case. It was held that a third-party defendant could obtain relief by challenging the merits of the main case. The court conceded that its opinion was without controlling authority but found that a number of federal and state cases supported its conclusion by analogy. Id. at 742 n. 8. Support was also found in Federal Rule of Civil Procedure 14, which gives a third-party defendant the authority to assert any defense which a defendant could have asserted. Id. at 738 n. 1.

The Kicklighter court also relied on sound policy reasons for its holding, including the deterrence of collusion between the plaintiff and defendant where liability will ultimately fall on a third party. The court further narrowed its holding so that a third-party defendant's successful appeal *602 operates also on behalf of defendant/third-party plaintiff only (1) where the judgment against the third-party defendant is based on liability which is derivative of defendant's liability, and (2) where the error successfully asserted by third-party defendant is an error in the main case, thus undermining the finding of defendant's liability. Id. at 744 n. 16.

F & D Property Co. v. Alkire, 385 F.2d 97 (10th Cir.1967) lends support for the proposition of law which Kicklighter extends. The litigation there involved delinquent rental payments under a lease. The lower court had granted summary judgment in favor of plaintiff against both the defendant and third-party defendant. The third-party defendant appealed the original judgment, claiming that he had not agreed to the complete stipulation of facts upon which summary judgment was granted. In holding that the third-party defendant should have responded to the motion for summary judgment and shown that there was a genuine issue for trial, the court cited Federal Rule of Civil Procedure 14, reasoning:

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Bluebook (online)
452 So. 2d 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheradsky-v-basadre-fladistctapp-1984.