19 Fla. L. Weekly Supp. 392a
Online Reference: FLWSUPP 1905SRBULandlord-tenant — Eviction — Notice — Failure to issue three-day notice — Dismissal without leave to amend
SR BUSINESS CENTER CORP, Plaintiff, vs. BARBARA INGRAM, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2011-CC-018978-O, Division 72. January 20, 2012. Wilfredo Martinez, Judge. SR Business Center Corp, Orlando, pro se Plaintiff. Jaisen J. Stango, Orlando, for Defendant.
ORDER OF DISMISSAL WITHOUT LEAVE TO AMEND
THIS CAUSE came before the Court for hearing on January 20, 2012 upon Defendant’s Motion to Dismiss. Defendant appeared by counsel, Jaisen J. Stango, Esquire. After hearing argument from counsel, carefully reviewing the pleadings, motions, and exhibits attached thereto, and otherwise being fully advised in the premises, the Court does hereby
ORDER, ADJUDGE, and FIND as follows:
1. This is an action to evict a residential tenant for nonpayment of rent subject to the Florida Residential Landlord and Tenant Act.
2. This Court lacks jurisdiction, i.e., authority to exercise its eviction power, in the above-captioned civil action to award Plaintiff possession of the lease premises because Plaintiff failed to issue a three-day notice to Defendant, BARBARA INGRAM, an essential element to a cause of action for tenant removal. Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985) (ruling that a residential tenant eviction for non-payment of rent cannot be commenced until the landlord has complied with the notice requirements of § 83.56(3), Fla. Stat.).
CONDITION PRECEDENT TO A CAUSEOF ACTION FOR TENANT REMOVAL
3. The issuance of a proper three-day notice in substantial compliance with § 83.56(3), Fla. Stat., is a condition precedent to filing suit for possession of a dwelling unit. Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985); Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009).
4. The Fifth District Court of Appeal acknowledged a “statutory cause of action cannot be commenced until the claimant has complied with all the conditions precedent.” Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (citing Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983)).
5. The Fifth District Court of Appeal held it is proper to dismiss a residential tenant eviction action where the landlord failed to comply with the notice requirements of § 83.56(3), Fla. Stat. Id.
DISMISSAL WITHOUT LEAVE TO AMEND
6. When less than all of the requisite elements of a cause of action were in existence when the complaint was filed, the claims must be dismissed without leave to amend. Rolling Oaks Homeowner’s Ass’n, Inc. v. Dade County, 492 So.2d 686 (Fla. App. 3rd DCA 1986); Orlando Sports Stadium v. Sentinel Star Company, 316 So.2d 607 (Fla. 4th DCA 1975), (ruling a plaintiff may not be permitted to cure the defect of nonexistent cause of action when the suit began by amending pleadings); Hasam Realty Corporation v. Dade County, 178 So.2d 747 (Fla. 4th DCA 1965) (finding the Rules of Civil Procedure which provide for amended or supplemental pleadings can remedy the lack of an existent cause of action at the time the complaint was filed).
7. The landlord must file a new eviction based upon a new and valid three-day notice. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009).
8. Defendant’s Motion to Dismiss is hereby GRANTED. The above-captioned civil action is hereby DISMISSED without leave to amend.
PREVAILING PARTY & ENTITLEMENTTO ATTORNEY’S FEES
9. The Court retains jurisdiction to determine if Defendant is the prevailing party in this case and is entitled to recover costs, including reasonable attorney’s fees, from the Plaintiff pursuant to § 83.48, Fla. Stat., Fla. R. Civ. P. 1.420(d), and any other applicable law, rule, or statute.
10. The Court retains jurisdiction to award Defendant costs, including reasonable attorney’s fees, from Plaintiff if the Court deems it just and proper.
11. The Court retains jurisdiction to hear any other motions and grant any other relief in furtherance with this order and ruling in this case.
* * *
