Reversal of Dismissal

In a recent entreatment the dismissal of an activeness by a landlord against a tenant for failure to pay rent was reversed when the appellate court determined that the trial court had allowed the dismissal of landlord's complaint for failure of condition precedent although that affirmative defense had never been raised in tenant'south answer and affirmative defenses.   The courtroom referenced Florida Rule of Civil Procedure 1.120(c) in issuing its opinion stating, "[t]he defence of nonperformance of a condition precedent must be pled specifically and with particularity or information technology is deemed waived."  The dismissal was overturned and the instance remanded to the trail court for proceedings consequent with the order of the appellate court.  Encounter opinion beneath.

5230 HOLLYWOOD 77, LLC, Appellant, v. NICOLE GONZALEZ, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE13-020668 (AP). L.T. Case No. COSO13-006077. May xviii, 2015. Appeal from the County Court for the Seventeenth Judicial Excursion, Broward County, Terri-Ann Miller, Judge. Counsel: Richard F. Hussey, Richard F. Hussey, P.A., Fort Lauderdale, for Appellant. Patrice Paldino, Legal Assist Service of Broward County, Inc., Plantation, for Appellee.

OPINION

(PER CURIAM.) 5230 Hollywood 77, LLC ("Landlord") appeals an guild on Nicole Gonzalez's ("Tenant") motion to dismiss. The gild dismissed the Landlord's complaint without prejudice and without get out to amend. For the reasons explained beneath, this Court concludes that the county court erred and reverses the order on Tenant's motion to dismiss.

Groundwork

The underlying affair arose out of a written apartment lease understanding (the "lease") between Landlord and Tenant. Tenant allegedly failed to pay rent every bit required by the charter. As a result, Landlord served a statutory iii-24-hour interval notice for payment of rent or possession of the property.

Upon Tenant's failure to pay rent or vacate the holding, Landlord sued Tenant in county court. Landlord filed a 1-count complaint seeking possession of the property and an award of costs. Tenant filed a responsive pleading, entitled answer/motion to dismiss and affirmative defenses and movement to release court registry funds to defendant. i In the responsive pleading, Tenant denied the allegations in the complaint and listed the post-obit as grounds for her motility to dismiss also as affirmative defenses: (1) breach of statutory duty, (2) defective notice: includes amounts other than hire and (three) defective detect: demands an indefinite sum.

When arbitration resulted in a total impasse, the county court noticed a final hearing. Subsequently the hearing, the county court entered an lodge on accused's movement to dismiss, which granted the motion to dismiss based on a ground that Tenant raised ore tenus at the final hearing. The order on defendant'south motion to dismiss states as follows:

  1. Paragraph 4.one of the charter required the landlord to provide a vii-solar day notice when alleging nonpayment of rent. The landlord only issued a 3-twenty-four hours discover therefore the find was defective.
  1. The Accused's Motion is granted. The case is dismissed without prejudice, but without exit to amend.

Landlord appealed. The standard of review applicable to an guild on a motion to dismiss is de novo. Meet Port Marina Condo. Ass'n, Inc. v. Roof Services, Inc., 119 So. 3d 1288, 1290 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1876a]. The standard of review for an club denying leave to amend a complaint is abuse of discretion. See Id. at 1291.

Assay

"Compliance with the . . . find requirement is only a status precedent to an eviction action" and a Landlord's failure to satisfy this status precedent does not create a jurisdictional defect. Bell v. Kornblatt, 705 So. 2d 113, 114 (Fla. quaternary DCA 1998) [23 Fla. 50. Weekly D264a]. Here, the charter required that Landlord provide a seven-twenty-four hours notice when alleging nonpayment of rent. Under Bell, the provision of the seven-day notice is a condition precedent to bringing an eviction action, and Landlord'south failure to do so did not create a jurisdictional defect. See Id.

The defense force of nonperformance of a condition precedent must be pled specifically and with particularity or it is deemed waived. See Fla. R. Civ. P. one.120(c) (2013) 2 ; Davie Westview Developers, Inc. 5. Bob-Lin, Inc., 533 And then. second 879, 880 (Fla. fourth DCA 1988); Hodusa Corp. v. Abray Constr. Co., 546 So. 2nd 1099, 1101 (Fla. fifth DCA 1989); Paulk five. Peyton, 648 So. 2d 772, 773 (Fla. 1st DCA 1994). Here, in the complaint, Landlord made a general allegation that all conditions precedent had occurred, been performed or been excused. As such, nether Florida Rule of Civil Procedure ane.120(c), Tenant was required to plead whatever nonperformance of a condition precedent specifically and with particularity. See Fla. P. Civ. P. 1.120(c) (2013). Notwithstanding, Tenant did not raise Landlord's failure to provide a seven-day notice in any part of her responsive pleading. Tenant waited until the concluding hearing to raise Landlord's nonperformance of this condition precedent for the first time via an ore tenus movement. Since the provision of the seven-day observe is a condition precedent to Landlord's eviction action, Tenant's failure to plead Landlord'southward failure to provide such discover specifically and with particularity constituted waiver of the condition precedent.

Florida Rule of Ceremonious Procedure 1.140(h)(2) does not employ. 3 For the defense of failure to state a cause of activity to apply, Landlord would have had to totally fail to allege that conditions precedents were met. See Se. Land Developers, Inc. 5. All Fla. Site & Utilities, Inc., 28 Then. 3d 166, 168 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D379c] ("Failure to allege that conditions precedent are met renders a complaint fatally defective in that it fails to state a cause of action."); Motor five. Citrus Cnty. School Bd., 856 So. 2d 1054, 1055 (Fla. 5th DCA 2003) [28 Fla. 50. Weekly D2292a] (citing Menendez five. North. Broward Hosp. Dist., 537 And so. 2d 89 (Fla. 1988) (explaining that when notice is an essential element of the cause of action, a complaint that does not allege detect fails to state a cause of action and the right to raise such defense is controlled by Florida Rule of Civil Procedure one.140(h)(2))). Here, however, Landlord did mostly aver that all atmospheric condition precedent had been performed. In addition, the record does not show that Tenant raised an ore tenus motion for judgment on the pleadings or that the canton courtroom engaged in a trial on the merits. iv Thus, the exceptions to the waiver of affirmative defenses non declared in the responsive pleading are not applicative hither. See Mangum v. Susser, 764 So. 2d 653 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1216a] (finding that appellant correctly argued that, bailiwick to certain exceptions that were not applicable to the case, affirmative defenses not alleged in the answer are accounted waived).

Therefore, the trial court erred in inbound the order dismissing the complaint. Encounter, due east.g., Rivera v. Hammer Caput Constr. & Dev. Corp., 14 So. 3d 1190, 1191 (Fla. 5th DCA 2009) [34 Fla. 50. Weekly D1254a] (affirming trial court'south deprival of a motion for involuntary dismissal later on finding that a party who waited until trial to present the defense of nonperformance of condition precedent waived such defense force); Mangum, 764 Then. 2d at 653 (reversing summary final judgment later agreeing with appellant-landlord, who argued that nonperformance of a condition precedent (i.e., proper observe to vacate) must be pled specifically and with particularity or it will be deemed waived). Since the provision of the seven-day notice is a condition precedent, Tenant's failure to plead Landlord's failure to provide the seven-day discover specifically and with particularity constituted a waiver. Because Landlord'southward failure did non create a jurisdictional defect, Landlord's omission did not mandate dismissal of its action. Dismissal of the Landlord's complaint was not harmless error. R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 473, 478 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D80c] (evaluating harmless fault by determining whether a different effect may take been reached.) Given the findings discussed to a higher place, this Court need not accomplish Landlord'due south arguments related to subpoena of the complaint. Accordingly, it is

ORDERED AND ADJUDGED that the order on accused'southward motion to dismiss is hereby REVERSED, and this cause is REMANDED for proceedings consistent with this Stance. Landlord's Motion for Appellant Attorney's Fees is hereby GRANTED and REMANDED to the county courtroom for a determination every bit to the amount to be awarded. Tenant'south Motility for Appellate Attorney's Fees is hereby DENIED. (GARCIA-Wood, RODRIGUEZ and PERLMAN, JJ. concur.)

__________________

i Tenant deposited the disputed rent every bit well every bit all rent accrued during the pendency of the county courtroom proceedings into the courtroom registry.

2 Florida Dominion of Ceremonious Procedure 1.120(c), which requires parties to plead the failure to satisfy a condition precedent specifically and with particularity, provides every bit follows:

In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A deprival of performance or occurrence shall be fabricated specifically and with particularity.

Fla. R. Civ. P. one.120(c) (2013).

iii Florida Rule of Civil Procedure i.140(h)(2) deals with exceptions to the waiver of affirmative defenses and provides every bit follows:

The defenses of failure to state a cause of activeness or a legal defense or to bring together an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the claim in addition to being raised either in a move under subdivision (b) or in the answer or reply.

Fla. R. Civ. P. 1.140(h)(ii) (2013).

iv Hearing transcripts of the underlying proceedings practice not exist. Even so, in lieu of a transcript of the final hearing, Landlord has supplemented the tape with a argument of proceedings that the county court has approved.