209 So. 3d 622
Fla. Dist. Ct. App.2017Background
- Tenant (Genuinely Loving Childcare, LLC) leased commercial space for a child day care; two owners (Geggatt and Rocci) executed personal guarantees for a five‑year term.
- Lease limited use to an indoor child care center (up to 35 children) and required compliance with government codes and licensing; Tenant was to keep children inside common areas.
- Florida law required a license for centers >5 children and generally mandated 45 sq. ft. of outdoor play space per child unless the facility had an "urban" designation permitting indoor play space instead; a provisional license (six months, renewable once) was available when standards were unmet.
- Tenant alleges it obtained county "urban" documentation and consulted the Department before signing; Department issued only a provisional license and later denied a permanent license because it did not find the urban designation sufficient, preventing further renewal.
- Tenant opened the center under a provisional license, abandoned the premises after the provisional license expired (~1 year into a 5‑year lease); Landlord sought possession and damages for past and future rent via summary judgment.
- Trial court granted summary judgment awarding possession and rent; appellate court affirmed possession award but reversed and remanded as to rent liability because Landlord failed to conclusively refute several affirmative defenses raising foreseeability questions.
Issues
| Issue | Landlord's Argument | Tenant's Argument | Held |
|---|---|---|---|
| Right to possession after abandonment | Tenant abandoned, so Landlord entitled to possession | Tenant disputed minor timing but not material | Granted — possession awarded to Landlord |
| Liability for past/future rent under lease | Lease allocates/license risk to Tenant; summary judgment appropriate | Tenant raised impossibility/impracticability/frustration/commercial frustration based on licensing denial | Reversed as to rent — genuine issue of material fact on foreseeability; remanded |
| Whether lease allocated risk of license denial to Tenant | Lease terms place compliance/licensing burden on Tenant; risk assumed | Tenant says parties expected urban designation and Department assurances; lease does not explicitly allocate this specific risk | Material issue of intent/foreseeability precludes summary judgment for Landlord |
| Adequacy of Landlord's summary‑judgment proof to refute affirmative defenses | Landlord's affidavit and motion showed no defense merit | Tenant's affidavit (Rocci) raised facts about prelease assurances, urban designation, and Department interactions | Landlord failed to conclusively negate defenses — summary judgment improper on rent |
Key Cases Cited
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (de novo review of summary judgment)
- Holl v. Talcott, 191 So.2d 40 (Fla. 1966) (movant's burden to show absence of genuine issue)
- T‑Quip of Fla., Inc. v. Tietig, 207 So.3d 958 (Fla. 5th DCA 2016) (movant must refute affirmative defenses or show legal insufficiency)
- Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003) (affidavit that only supports complaint is insufficient to refute denied affirmative defenses)
- Walter T. Embry, Inc. v. LaSalle Nat'l Bank, 792 So.2d 567 (Fla. 4th DCA 2001) (foreseeability is generally a question of fact and can preclude summary judgment)
- 159 E. Inc. v. Margolis, 702 So.2d 286 (Fla. 4th DCA 1997) (abandonment supports landlord's possession right)