Unlimited Check Cashing, Corp. v. Wri Jt Tamiami Trail, Lp , 222 So. 3d 637 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed June 28, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1928
Lower Tribunal No. 15-2268
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Luis Portal and Unlimited Check Cashing, Corp.,
Appellants,
vs.
WRI JT Tamiami Trail, LP,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Jesus O. Cervantes, for appellants.
GrayRobinson and Kristie Hatcher-Bolin (Lakeland); Shuham & Shuham
and Martin J. Shuham (Hollywood), for appellee.
Before SUAREZ, C.J., and SALTER and FERNANDEZ, JJ.
PER CURIAM.
Defendants, Luis Portal and Unlimited Check Cashing, Corp., appeal a final
judgment against them, jointly and severally, as guarantor and tenant under a
commercial real estate lease. Following a non-jury trial, the circuit court entered
findings in favor of the plaintiff/landlord, WRI JT Tamiami Trail, LP, for
$215,272.92. That total amount included both unpaid past rent and approximately
15 months in future rent anticipated to accrue between trial (June 26, 2016) and the
expiration date of the lease (September 30, 2017).
The appellants raise numerous claims of error, but only one topic—the
inclusion of future monthly rent accruals in the final judgment—warrants
discussion. The trial court’s findings of fact regarding: the tenant’s default in
payment of rent in September 2014 and thereafter; the tenant’s abandonment of the
property three months later; the landlord’s elections to re-take possession of the
leased premises for the account of the tenant and to accelerate future rental
payments;1 and the landlord’s reasonable efforts to mitigate damages in accordance
with the lease by attempting to re-let the property, are all clothed with the
presumption of correctness and will not be disturbed absent a showing of clear
error. Covelli Family, L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th DCA
2008); section 59.041, Florida Statutes (2016). No such showing has been made in
the present case.
1See Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc., 605 So. 2d 1317 (Fla. 4th
DCA 1992).
2
The issue requiring a very narrow reversal and remand involves the 15
months of future rent computed by the landlord and admitted into evidence as
plaintiff’s exhibit 6. The exhibit was a spreadsheet listing each month of default,
the rent and other sums due, and a cumulative total. It also listed the anticipated
post-trial accrual of those defaulted amounts, discounting them to “net present
value” in a separate column. That is the correct computation. Vibrant Video, Inc.
v. Dixie Pointe Assocs., 567 So. 2d 1003, 1004 (Fla. 3d DCA 1990). However, the
discounted total for those 15 months was not the figure added to the pre-trial
defaulted rent to produce the judgment amount; through some error, the
undiscounted value for unpaid rent for those 15 months was added. This
difference, approximately $4,000.00, must be subtracted from the judgment
amount carried from exhibit 6 into the final judgment.
Second, the reservation of jurisdiction in the final judgment should have
allowed the tenant and guarantor to provide mitigation evidence, as contemplated
by the lease, if there is a showing that the landlord has retaken possession, re-let
the premises, and received rent during those 15 post-trial months. Quintero-
Chadid Corp. v. Gersten, 582 So. 2d 685, 689 (Fla. 3d DCA 1991). No such
proffer has been made in the record before us, and we express no present opinion
regarding the merits of such a claim if one is subsequently asserted.
3
For these reasons, we affirm substantially all of the findings of fact in the
final judgment, but we reverse and remand for the limited purpose of allowing the
trial court to conform the final judgment to the discounted value of the post-trial
rent, per plaintiff’s exhibit six, rather than the undiscounted total actually included
in the final judgment. We also direct on remand that the trial court reserve
jurisdiction to hear and determine any claim by the appellants that the landlord has
failed to mitigate damages under the specific provisions of the subject lease
between the June 26, 2016, jury trial and September 30, 2017. Any such
reservation shall not preclude enforcement of the amended final judgment pending
the assertion and determination of such a claim by the guarantor or tenant.2
Affirmed in part, reversed in limited part, and remanded with instructions.
2 Such a reservation of jurisdiction is not an instruction or suggestion that
discovery should be re-opened to permit the judgment debtors to explore
mitigation, absent a preliminary determination that the landlord has re-taken
possession and re-let the premises before the expiration of the subject lease
(September 30, 2017).
4