Charbonier Food Services, LLC v. 121 Alhambra Tower, LLC

Third District Court of Appeal
State of Florida
Opinion filed October 5, 2016.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-356 & 3D16-753
Lower Tribunal No. 15-25007
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Charbonier Food Services, LLC, etc.,
Appellant,
vs.
121 Alhambra Tower, LLC, etc.,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Eric William
Hendon, Judge.
Fowler Rodriguez, Michael A. Rosen and Santiago J. Padilla, for appellant.
Roth & Scholl and Jeffrey C. Roth, for appellee.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
EMAS, J.
In these consolidated appeals, appellant Charbonier Food Services, LLC
(“Charbonier”) appeals from an order requiring Charbonier to deposit rental
monies into the registry of the court, and a subsequent final judgment of eviction.
Charbonier appeals the first order on the basis that the court erred in interpreting
the rental clause in a ten-year commercial lease agreement between Charbonier
and appellee, 121 Alhambra Tower, LLC (“Alhambra”), and thus erroneously
ordered Charbonier to deposit additional rents into the court registry. This court
has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c)(ii).
For the reasons that follow, we reverse and remand for further proceedings.
Charbonier has owned and operated a restaurant in Alhambra’s Coral Gables
office building since August 2011, pursuant to a lease agreement. The provision of
the lease at issue, which establishes the rental rates, is found in paragraph fifty-one,
and provides:
51. BASE RENT:
Base Rent shall be the greater of A – Fixed Base Rent and B –
Percentage Rent below. Within 15 days following the end of the
month, TENANT shall submit the gross sales for the preceding month
to the LANDLORD. Within 5 days of LANDLORD’S receipt of the
gross sales, LANDLORD shall notify TENANT of the Base Rental
TENANT shall pay.
A. Fixed Base Rent Schedule:
Lease Year Base Rental Per Month
1 $4,000.00
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2 $6,000.00
3 $6,180.00
4 $6,365.40
5 $6,556.36
6 $6,753.05
7 $6,955.64
8 $7,164.31
9 $7,379.24
10 $7,600.62
B. Percentage Rate calculated as follows:
1. Six percent (6%) of gross sales under gross sale of Two
Hundred Seventy Five Thousand dollars ($275,000) and,
2. Eight percent (8%) of gross sales over gross sales of Two
Hundred Seventy Five Thousand dollars ($275,000)
If the Percentage Rent results in $10,000.00 of monthly rent over the
Fixed Base Rent beginning January 2015, then $10,000.00 shall be
added to the Fixed Base Rent, however, in no event shall the
minimum Base Rental beginning January 2015 exceed $18,500 per
month. Further, beginning January 1, 2015, the monthly Percentage
Rent due shall be reduced by the Additional Fixed Base Rent shown
below.
Current Additional New Fixed
Fixed Base Fixed Base Base Rent
Rent per Month Rent per Month
Dates
Oct -11 $4,000.00
Oct -12 $6,000.00
Oct -13 $6,180.00
Oct -14 $6,365.40
Oct -15 $6,556.36 $10,000.00 $16,556.36
Oct -16 $6,753.05 $10,300.00 $17,053.05
Oct -17 $6,955.64 $10,609.00 $16,564.64
Oct -18 $7,164.31 $10,927.27 $18,091.58
Oct -19 $7,379.24 $11,255.09 $18,500.00
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Oct -20 $7,600.62 $11,592.74 $18,500.00
It is undisputed that, during the first four years of the lease, Charbonier paid
all required rent and other charges. In October 2015, however, Alhambra began
charging Charbonier an additional $10,000 per month in rent, which Alhambra
asserted was provided for in paragraph fifty-one of the lease. Charbonier disputed
Alhambra’s interpretation of that paragraph, and it tendered a check to Alhambra
in the amount of $7,622.25 for payment of the September rent, representing the
base rental, sales tax upon the base rental, and the reimbursable utility charges.
Thereafter, on October 26, 2015, Alhambra sent a seven-day notice to Charbonier
to pay rent or deliver the possession of premises, claiming Charbonier was
indebted to Alhambra in the amount of $10,700.00
Charbonier filed an action in the court below for a declaratory judgment.
Alhambra subsequently counterclaimed, seeking eviction and damages for
Charbonier’s refusal to pay the additional rent as required under the lease.
Alhambra also filed a motion to require Charbonier to deposit all of the disputed
rent into the court registry pursuant to section 83.232, Florida Statutes (2015). On
February 8, 2016, the trial court held a hearing on the Motion and heard argument
from counsel. Following the hearing, the court agreed with Alhambra’s
interpretation of the rental fee provision and issued its order requiring Charbonier
to deposit into the court registry one-half of the disputed rent and sales tax accrued
since October, 2015 (ie. $10,700 x 5 = $53,500 x 1/2 = $26,750.00), plus an
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additional $5,350.00 monthly commencing March, 2016, said amount representing
one-half of the additional disputed rent plus sales tax. This appeal followed.1
At issue herein is whether the trial court interpreted paragraph fifty-one of
the lease according to its plain and ordinary terms. While both parties assert the
language of paragraph fifty-one is plain and unambiguous, their proposed
constructions of that language are diametrically opposed.
We review a trial court’s interpretation of a contract under a de novo
standard. Merlot Commc’ns, Inc. v. Shalev, 840 So. 2d 446 (Fla. 3d DCA 2003).
Where a contract is unambiguous, it shall be enforced according to its plain
language. Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015); Washington
Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013). In such a situation, the
trial court must confine itself to the four corners of the contract, because “the
language itself is the best evidence of the parties’ intent, and its plain meaning
controls.” Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011) (quoting Richter
v. Richter, 666 So. 2d 559, 561 (Fla. 4th DCA 1995)).
However, if a contract is ambiguous, the court must construe it pursuant to
the parties’ intent. Ruderman, 117 So. 3d at 954-55 (citing Se. Fire Ins. Co. v.
1 Charbonier did not deposit the additional rents into the court registry and, as a
result, the trial court entered a final judgment of eviction, from which Charbonier
filed its notice of appeal. We later consolidated the appeals, as both parties agreed
that this court’s decision regarding the propriety of the first order would be
determinative of the appeal from the final judgment of eviction.
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Lehrman, 443 So. 2d 408, 408–09 (Fla. 4th DCA 1984)). “A contract is ambiguous
when its language is reasonably susceptible to more than one interpretation, or is
subject to conflicting interests.” Real Estate Value Co., Inc. v. Carnival Corp., 92
So. 3d 255, 260 (Fla. 3d DCA 2012) (quoting Pan Am. W., Ltd. v. Cardinal
Commercial Dev., LLC, 50 So. 3d 68, 71 (Fla. 3d DCA 2010)).
Upon our de novo review of the lease agreement as a whole, and the
provisions of paragraph fifty-one in particular, we conclude that the language is
neither clear nor unambiguous. Rather, the language is ambiguous and susceptible
to more than one reasonable interpretation. We are unable to ascertain the intent of
the parties from the plain language of the agreement, and therefore cannot
determine the amount of rent Charbonier owed to Alhambra under the lease for the
relevant time period.
Given this ambiguity, we conclude the trial court must consider extrinsic
evidence, not to change or vary the terms of the agreement, but only to “explain,
clarify or elucidate” the ambiguity. Friedman v. Virginia Metal Prods. Corp., 56
So. 2d 515, 516 (Fla. 1952). Through the consideration of extrinsic evidence, the
trial court may ascertain the parties’ intent at the time of the formation of the
agreement, and thereby properly determine Charbonier’s rental obligation to
Alhambra.2
2In interpreting paragraph fifty-one, the trial court stated that it considered only the
express terms of the provision, and that it did not consider any extrinsic evidence
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We therefore reverse the order requiring Charbonier to deposit rental monies
into the registry of the court. We also reverse the subsequent final judgment of
eviction. We remand this cause to the trial court for further proceedings consistent
with this opinion.
in its determination.
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