THE COVE & DEERFIELD BEACH, LLC v. R. FAST, INC., HECTOR ALICIA, and ALL OTHERS IN POSSESSION

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE COVE & DEERFIELD BEACH, LLC,
Petitioner,
v.
R FAST, INC., HECTOR ALICIA, and
ALL OTHERS IN POSSESSION,
Respondents.
No. 4D20-1782
[November 25, 2020]
Petition for writ of mandamus to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. CACE20004831 (14).
Evan B. Berger of Becker & Poliakoff, P.A., Fort Lauderdale, for
petitioner.
Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale,
for respondents.
KUNTZ, J.
A landlord, The Cove & Deerfield Beach, LLC, petitions for the issuance
of a writ of mandamus to require the circuit court to enter a default and
writ of possession. We grant the petition.
The landlord filed a one-count eviction action in county court seeking
to evict its tenant from a commercial building in Deerfield Beach. The
county court issued a default but later vacated the default and transferred
the case to the circuit court.
After the case was transferred to the circuit court, the tenant moved to
determine rent. The court granted the motion and required the tenant to
pay the rent into the court registry on the first day of each month.
One month, the tenant failed to timely do so, instead mailing the
payment to the clerk of court two days before the due date. The clerk
deposited the payment into the court registry one day after the due date.
The landlord moved for a default based on the untimely payment. The
court rejected the landlord’s attempt to obtain the default ex parte and
later denied the motion after a hearing. The court found that: the tenant
timely mailed the rent payment; there was no proof that it was not timely
received by the clerk; a Florida Supreme Court administrative order
provides that an emergency health condition exists; and other circuit court
administrative orders provide that the court registry is not an “essential
and critical proceeding.”
This denial led the landlord to petition for mandamus, arguing “[t]here
are few things in the law as clear as the requirement to deposit rent into
the court registry on or before the deadline imposed by the court.” The
landlord argues that this Court has held that if the tenant fails to deposit
the rent into the registry by the deadline, the controlling statute, section
83.232(5), Florida Statutes (2020), provides no discretion to the circuit
court and requires the entry of a default.
In response, the tenant argues the landlord waived strict compliance
with the statute when it allowed the tenant more time to pay an earlier
monthly rent payment to the clerk. But the landlord did so because the
courthouse was closed due to COVID-19. And the courthouse was open
when the payment at issue was due. Further, the circuit court did not rely
on waiver. Instead, the issue is whether the mailing of the rent payment
to the clerk of court before the due date and the clerk’s deposit of the rent
payment one day after the due date is enough to comply with section
83.232(5).
We note two facts. First, as noted, the clerk of court was open on the
due date. So the pandemic-related administrative orders do not affect the
result in this case. Second, the tenant did not introduce evidence
suggesting the clerk timely received the funds in the mail but failed to
deposit the payment.
We agree with the landlord that the court had no discretion to deny the
motion for default. See Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp., 45
So. 3d 37, 39 (Fla. 4th DCA 2010) (“Where the tenant has not paid the rent
into the registry of the court in accordance with court order and the
statute, the landlord is entitled to a writ of possession without further
hearing.”).
We recognize the result is harsh. But the reason for failing to tender
payment on the first day of the month is not relevant. See id. (“Although
the result may seem harsh . . . , there is no equitable exception to the
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statute.” (citing Courthouse Tower, Ltd. v. Manzini & Assocs., 683 So. 2d
215 (Fla. 3d DCA 1996))). When a tenant fails to tender payment on or
before the deadline, the court must issue a default for possession. See,
e.g., Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d
811, 813 (Fla. 3d DCA 2010) (“[T]he tenant failed to deposit the rent into
the court registry on the date ordered. Regardless of the tenant’s reason
for failing to make the deposit, the trial court was statutorily required to
enter an immediate default and writ of possession.”).
Finally, we note that “the landlord is entitled to a default for possession
in accordance with section 83.232(5), not disbursement of the deposited
funds.” Palm Beach Marketplace, LLC v. Aleyda’s Mexican Restaurante,
Inc., 103 So. 3d 911, 912 (Fla. 4th DCA 2012) (citation omitted).
We grant the petition but withhold issuance of the writ, as we are
confident the circuit court will act in compliance with this opinion.
Petition granted.
WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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