Wesner v. JMS Marinas, LLC
224 So. 3d 912
Fla. Dist. Ct. App.2017Background
- Tenant Daniel Wesner (doing business as Fish Tales) leased marina premises from Maximo Harborage under a commercial lease requiring base or percentage rent, whichever is greater. Dispute arose over unpaid percentage rents.
- Original plaintiff was Maximo Harborage; it was later replaced by JMS Marinas, LLC (JMS) after Maximo Harborage had registration deficiencies preventing it from suing in Florida.
- Wesner consistently challenged the identity of the proper landlord and whether JMS had standing to seek possession, asserting rent had been paid to Harborage Marina and then to Harborage Land (a 2009 grantee and record title holder).
- JMS relied on testimony from an owner (Johnson) that JMS was the “successor landlord.” Wesner submitted three affidavits (including one from counsel and a title-search affidavit by Awerbach) asserting Harborage Land was the record owner and acted as landlord.
- The trial court struck the Awerbach affidavit as hearsay for lack of certified exhibits, granted JMS partial summary judgment for possession, and found Johnson’s testimony established JMS’s entitlement to possession.
- On appeal, the Second District reviewed whether (1) the Awerbach affidavit was properly excluded and (2) a genuine issue of material fact existed about JMS’s standing to seek possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Awerbach affidavit (title-search) was admissible | Affidavit shows Harborage Land is record owner; raises factual dispute | Affidavit is hearsay because relied on public records not attached/certified | Court: affidavit properly struck for failure to attach certified copies under Fla. R. Civ. P. 1.510(e) and controlling authority |
| Whether JMS had standing as landlord to seek possession | JMS: Johnson’s testimony establishes JMS is successor landlord and entitled to possession | Wesner: record title and rent payments show Harborage Land is current landlord; JMS lacks ownership/agency evidence | Court: genuine issue of material fact exists as to JMS’s standing; partial summary judgment reversed and remanded |
| Whether prior rulings or testimony resolved standing | JMS: earlier testimony and rulings settled standing | Wesner: standing was not fully litigated; record contains contradictory evidence | Court: standing was not fully resolved previously; issue remained ripe when raised in response to possession motion |
| Whether evidence that JMS is not record owner is immaterial to possession | JMS: owner status unnecessary if successor or agent; Johnson’s statement sufficient | Wesner: lease defines landlord as current fee owner; record title and conduct (rent invoices/payments) are material | Court: facts about record ownership and agency are material; cannot disregard them on summary judgment |
Key Cases Cited
- Buck-Leiter Palm Ave. Dev., LLC v. City of Sarasota, 212 So. 3d 1078 (Fla. 2d DCA 2017) (standard of appellate review for summary judgment)
- Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (summary judgment standards; view evidence for nonmoving party)
- Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992) (requirement to attach certified copies to affidavits relying on public records)
- Coleman v. Grandma's Place, Inc., 63 So. 3d 929 (Fla. 4th DCA 2011) (same point about admissibility of affidavits citing public records)