Mesnikoff v. Fq Backyard Trading, LLC , 239 So. 3d 765 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed March 07, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2803
Lower Tribunal No. 16-438
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Norman Mesnikoff,
Petitioner,
vs.
FQ Backyard Trading, LLC,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Sarah Zabel, Valerie R. Manno Schurr, and Monica Gordo, Judges.
Arthur J. Morburger, for petitioner.
Chase Law, LLC, and Kenneth E. Chase (Washington, DC), for respondent.
Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
ROTHENBERG, C.J.
The petitioner, Norman Mesnikoff (“Mesnikoff”), seeks second-tier
certiorari review of the circuit court appellate division’s per curiam affirmance of a
final judgment of eviction entered in favor of the respondent, FQ Backyard
Trading, LLC (“Backyard Trading”). Because we conclude that the county court
lacked subject matter jurisdiction to enter the final judgment of eviction, we grant
the petition and quash the decision entered by the circuit court appellate division.
I. Factual and Procedural History
Mesnikoff and his girlfriend, Doris Dubler, began to live together in
December 1989, after Dubler purchased a condominium titled solely in her name.
On June 28, 2002, Dubler executed the Doris Dubler Revocable Trust (“revocable
trust”), which provides that if Dubler is survived by Mesnikoff, the trustee shall
pay off the existing mortgage on the condominium and permit Mesnikoff to reside
in the condominium for the rest of his life so long as he pays the real estate taxes
and maintenance.
On February 24, 2010, without Mesnikoff’s knowledge, Dubler executed the
First Amendment to the Doris Dubler Revocable Trust (“amended revocable
trust”), which eliminated the above referenced provision, but added several
provisions affecting Mesnikoff. First, the amended revocable trust provides that if
Dubler is survived by Mesnikoff, the trustee shall pay Mesnikoff $25,000 from a
specific brokerage account. Second, if the trust estate contains the condominium at
the time of Dubler’s death, the trustee shall sell the condominium as soon as
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practicable, and the proceeds from the sale shall be distributed to Dubler’s then-
living children in equal shares, per stirpes. Lastly, if Mesnikoff still resides in the
condominium at the time of Dubler’s death, Mesnikoff may occupy the
condominium until the condominium is sold, provided that he pays the real estate
taxes and the maintenance costs of the condominium.
Following Dubler’s death in March 2016, Mesnikoff was notified that the
successor co-trustees of the revocable trust, Steven Kugler and Shelley Shader
(Dubler’s children), were selling the condominium and that Mesnikoff would have
to vacate the condominium upon its sale. On July 18, 2016, Kugler and Shader,
individually and as co-trustees of the revocable trust, sold the condominium to
Backyard Trading for $245,000.
After the condominium was sold to Backyard Trading, Mesnikoff refused to
vacate the condominium, and Backyard Trading initiated the underlying action in
county court against Mesnikoff. Backyard Trading filed a “Complaint for
Possession of Real Property and Ejectment from Real Estate,” which provided, in
part, as follows: “NOW COMES Plaintiff [Backyard Trading] and hereby files
this complaint for possession of real property and to eject the wrongful possessor
of real property, Defendant Norman Mesnikoff . . . under Florida Statute
66.021.”1 (emphasis added). Backyard Trading requested that the county court
1 Chapter 66 of the Florida Statutes pertains solely to actions for ejectment.
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enter a judgment “ejecting [Mesnikoff] from the [condominium] and restoring
possession” of the condominium to Backyard Trading. Importantly, the complaint
made absolutely no reference to a tenancy; a rental agreement; or Chapter 83, Part
II, Florida Statutes (2016), which is known as the Florida Residential Landlord and
Tenant Act (“the Act”).
In response, Mesnikoff filed an answer and asserted several affirmative
defenses. Mesnikoff explained that he initially did not know that the condominium
was titled solely in Dubler’s name, and from the date the condominium was
purchased, he and Dubler opened a joint bank account to pay for all expenses
associated with the condominium, including the mortgage, real estate taxes,
insurance, maintenance, assessments, and improvements. Mesnikoff’s federal
pension and social security payments and Dubler’s social security payment were
deposited into the joint bank account. Mesnikoff also explained that after he
learned that his name did not appear on the deed, Dubler promised him that he
could live in the condominium for the rest of his life pursuant to the terms of the
revocable trust. Mesnikoff became aware of the amended revocable trust
following Dubler’s death, and he asserted that Dubler’s children fraudulently
induced Dubler into changing the terms of the revocable trust. Based on these
assertions, Mesnikoff claimed, in part, that Backyard Trading has unclean hands
because its attorney had advance knowledge that Mesnikoff had been living in the
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condominium for twenty-seven years and was claiming that he had an equitable
lien and ownership interest in the condominium, and that Mesnikoff had requested
that the sale not take place or, in the alternative, that the sale proceeds be held in
escrow until Mesnikoff’s equitable lien rights had been resolved.
Following Mesnikoff’s answer and affirmative defenses, Backyard Trading
moved for summary judgment. In its motion, despite the absence of any
allegations in its complaint concerning a residential tenancy, Backyard Trading
stated that Mesnikoff is a “tenant who refuses to vacate the premises.” (emphasis
added).
During the hearing, the county court correctly recognized its lack of
jurisdiction to adjudicate Backyard Trading’s action for ejectment filed under
section 66.021. See § 26.012(2)(f), Fla. Stat. (2016) (providing that circuit courts
have “exclusive original jurisdiction” in “actions for ejectment”). When
addressing the county court’s concern relating to subject matter jurisdiction,
Backyard Trading’s counsel announced that he was dismissing the ejectment
action and was proceeding solely on a claim for “possession,” arguing that the
instant case involves “a landlord-tenant issue.”2 The county court continued to
question whether it had subject matter jurisdiction, and it then reserved ruling and
2 The trial court entered a memo of disposition reflecting that Backyard Trading
dismissed its ejectment count and was going forward only as to its count for
“possession.”
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encouraged the parties to come to an agreement.
After the parties failed to enter into a settlement, the county court entered an
order granting Backyard Trading’s motion for summary judgment. Thereafter, the
county court entered a final judgment in favor of Backyard Trading on what the
county court called a “Complaint for Eviction,” which entitled Backyard Trading
to recover possession of the condominium from Mesnikoff.
Mesnikoff then appealed the judgment of eviction entered by the county
court to the circuit court appellate division, arguing that the county court lacked
subject matter jurisdiction. The circuit court, sitting in its appellate capacity,
entered a per curiam affirmance. Mesnikoff’s second-tier petition for certiorari
review followed.3
II. Analysis
“The standard governing the disposition of a petition for second-tier
certiorari in a district court is narrow: ‘[T]he district court must determine whether
3 Although the circuit court, sitting in its appellate capacity, issued a per curiam
affirmance in the present case, Mesnikoff was not precluded from seeking second-
tier certiorari review in this Court. See Auerbach v. City of Miami, 929 So. 2d
693, 694-95 (Fla. 3d DCA 2006) (exercising jurisdiction to review a circuit court
appellate division per curiam affirmance where “[f]ailing to do so . . . would . . .
[result in] an unjustified approval of the obvious failure of the circuit court to apply
the correct law and the resulting ‘miscarriage of justice’ which occurred below”)
(citations omitted and footnote omitted); Rich v. Fisher, 655 So. 2d 1149, 1150
(Fla. 4th DCA 1995) (noting that “[c]ounty court litigants . . . are not precluded
from seeking review in the district court of appeal when the circuit court affirms
without opinion”).
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the decision of the circuit court . . . is a departure from the essential requirements
of law resulting in a miscarriage of justice.’” State, Dep’t of Highway Safety &
Motor Vehicles v. Fernandez, 114 So. 3d 266, 269-70 (Fla. 3d DCA 2013)
(quoting Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712,
725 (Fla. 2012)). The circuit court’s decision departs from the essential
requirements of law where the circuit court fails to afford procedural due process
or fails to apply the correct law. Nader, 87 So. 3d at 722-23 (quoting Haines City
Cmty. Dev. v. Heggs, 658 So. 2d 523, 530-31 (Fla. 1995)). In the instant case,
Mesnikoff does not argue that the circuit court appellate division did not afford
him procedural due process. Therefore, the sole issue before this Court is whether
the circuit court failed to apply the correct law, resulting in a miscarriage of justice.
In his petition for second-tier certiorari review, Mesnikoff argues that the
county court lacked subject matter jurisdiction, and therefore, the circuit court
failed to apply the correct law when affirming the final judgment entered by the
county court. We agree, and therefore, we grant the petition and quash the circuit
court’s appellate decision.
During the summary judgment hearing, Backyard Trading realized that the
county court did not have subject matter jurisdiction to adjudicate its action for
ejectment. Backyard Trading then led the trial court astray by characterizing its
complaint as a two-count complaint—(1) ejectment under section 66.021, and (2)
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possession—and by announcing that it was voluntarily dismissing the ejectment
action and proceeding solely under its count for “possession.” In making this
argument, although Backyard Trading’s complaint does not indicate in any fashion
that Mesnikoff was a tenant under the Act, Backyard Trading informed the trial
court that the case involved a “landlord-tenant issue.” Thereafter, the trial court
entered a final judgment on what the county court called Backyard Trading’s
“Complaint for Eviction.”
Our review of the complaint clearly indicates that Backyard Trading pled
only one count—ejectment under section 66.021. Specifically, Backyard Trading
requested that the county court enter a judgment “ejecting [Mesnikoff] from the
[condominium] and restoring possession” of the condominium to Backyard
Trading. Therefore, once Backyard Trading voluntarily dismissed its sole count
for ejectment, the trial court lacked subject matter as there were no remaining
claims to adjudicate.4 As the county court lacked subject matter jurisdiction, the
decision of the circuit court, sitting in its appellate capacity, affirming the county
court’s judgment of eviction constitutes a departure from the essential
requirements of law resulting in a miscarriage of justice. See Stel-Den of Am.,
Inc. v. Roof Structures, Inc., 438 So. 2d 882, 884 (Fla. 4th DCA 1983) (holding
4 Even if Backyard Trading had not voluntarily dismissed its action for ejectment,
the trial court would have nonetheless lacked subject matter jurisdiction because,
as stated early, circuit courts have “exclusive original jurisdiction” in “actions for
ejectment.” § 26.012(2)(f).
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that a court’s “incorrect decision on subject matter jurisdiction . . . constitutes a
departure from the essential requirements of law, sufficient to justify invocation of
[second-tier] certiorari jurisdiction”). Accordingly, we grant Mesnikoff’s second-
tier certiorari petition and quash the per curiam affirmance issued by the circuit
court appellate division.
Even if Backyard Trading did attempt to include in its complaint a second
count for possession under section 83.59(1) of the Act, which it did not, we would
nonetheless conclude that the county court lacked subject matter jurisdiction to
enter a final judgment for eviction and possession because a landlord-tenant
relationship did not exist. And as previously stated, a court’s “incorrect decision
on subject matter jurisdiction . . . constitutes a departure from the essential
requirements of law, sufficient to justify invocation of [second-tier] certiorari
jurisdiction.” Stel-Den of Am., 438 So. 2d at 884.
The Act “applies to the rental of a dwelling unit.” § 83.41, Fla. Stat. (2016).
Although we agree that Backyard Trading is a “landlord” under the Act, §
83.43(3), Fla. Stat. (2016) (defining “landlord” as “the owner or lessor of a
dwelling unit”) (emphasis added), Mesnikoff is not a “tenant” under the Act
because there was no rental agreement. See § 83.43(4), Florida Statutes (2016)
(defining “tenant” as “any person entitled to occupy a dwelling unit under a rental
agreement”); see also Toledo v. Escamilla, 962 So. 2d 1028, 1030 (Fla. 3d DCA
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2007) (holding that, because the party occupying the dwelling unit “is not a
‘tenant’ as defined by the Act, the county court lacked subject matter
jurisdiction”). Thus, section 83.59(1) of the Act does not apply.
In addition, we note that, based on his answer and affirmative defenses,
which clearly indicated that Mesnikoff was not in possession of the condominium
as a “tenant” and was claiming an equitable lien and ownership interest in the
condominium, ejectment, not eviction, was the proper remedy. See Toledo, 962
So. 2d at 1030 (“We also find that when [the party in possession of the dwelling
unit] asserted in her answer that she was not a tenant and that she had an equitable
interest in the property, ejectment, not eviction, was the proper remedy, and the
matter should have been transferred to the circuit court [because] [t]he circuit court
has ‘exclusive original jurisdiction’ over ejectment actions”); see also Ward v.
Estate of Ward, 1 So. 3d 238, 239 (Fla. 1st DCA 2008) (concluding that “the
circuit court departed from the essential requirements of law in affirming the
county court’s exercise of jurisdiction” in a complaint for eviction where the
defendants in the eviction action “asserted a claim to an equitable interest in the
property they inhabited, which should have been resolved by the circuit court,”
noting that “circuit courts have exclusive original jurisdiction in ejectment
actions”). Accordingly, we would have also granted Mesnikoff’s second-tier
certiorari petition for these separate reasons.
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Petition granted; decision of circuit court appellate division quashed.
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