DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FUNDERDOME, LLC, GARY PALMER, and OLEKSANDRA PALMER,

Appellants,

v.

WOOLBRIGHT DEVELOPMENT, INC. and SOUTHPORT RETAIL, LLC,

Appellees.

No. 4D21-3088

[May 3, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Carol-Lisa Phillips and Sandra Perlman, Judges; L.T. 

Case No. CACE14-21386.

Evelina Libhen of Evelina Libhen, P.A., Miami, Paul A. McKenna of Paul 

A. McKenna & Associates, P.A., Miami, and Charles M. Auslander of 

Crabtree & Auslander, Key Biscayne, for appellants.

Ricardo A. Reyes, Adrian J. Alvarez and Sacha A. Boegem of Tobin, 

Reyes, Alvarez & De Biase, PLLC, Boca Raton, for appellees.

ON MOTIONS FOR REHEARING, 

REHEARING EN BANC, CLARIFICATION, AND

CERTIFICATION TO THE SUPREME COURT OF FLORIDA

KUNTZ, J.

The parties filed multiple motions and responses directed to our 

February 15, 2023 opinion. Funderdome, LLC, Gary Palmer and 

Oleksandra Palmer move for rehearing, rehearing en banc, and 

certification to the Supreme Court of Florida. Southport Retail, LLC moves 

for rehearing and/or clarification of the opinion. We deny the motions filed 

by Funderdome, LLC, Gary Palmer and Oleksandra Palmer. We grant 

Southport Retail, LLC’s motion for clarification in part, withdraw our prior 

opinion, and substitute this opinion in its place. 

A tenant, Funderdome, LLC, appeals the circuit court’s summary 

judgment order entered in favor of the leasing agent, Woolbright 

Development, Inc. The tenant also appeals the circuit court’s summary 
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judgment for damages on the landlord, Southport Retail’s counterclaim. 

We affirm the summary judgment on the tenant’s complaint, reverse the 

summary judgment on the landlord’s counterclaim, and remand for 

further proceedings.

The tenant and landlord entered into a commercial lease agreement for 

more than 8,000 square feet of rental space in the landlord’s shopping 

center located in Fort Lauderdale. Before executing the lease, the tenant 

had several discussions with the leasing agent. It is the lease and the lease 

negotiations that are at issue in this appeal.

A. The Court Correctly Entered Judgment Against Funderdome on 

the Claims in Its Complaint – But for the Wrong Reasons

The tenant filed a complaint alleging that the leasing agent made 

fraudulent or negligent representations about the adequacy of on-site 

parking, and that those representations induced the tenant to enter the 

lease.

The leasing agent moved for summary judgment, and the circuit judge 

took the motion under advisement. Later, the leasing agent sent an 

unsolicited proposed order granting the summary judgment motion to the 

judge. The following morning, the judge signed the proposed order 

granting the leasing agent’s summary judgment motion without allowing 

the tenant a chance to respond. Based on the judge’s entry of the 

unsolicited order, the tenant successfully moved to disqualify the judge, 

and a successor judge was assigned to the case. The tenant sought 

reconsideration before the successor judge based on the prior judge’s entry 

of the unsolicited order.

We agree with the tenant that the successor judge should have granted 

reconsideration of the prior judge’s entry of the unsolicited order. The 

leasing agent’s counsel violated the requirements for submitting a 

proposed order outlined in Perlow v. Berg-Perlow, 875 So. 2d 383, 384 (Fla. 

2004), as well as the prior judge’s posted rules. The successor judge 

should have granted reconsideration and independently reviewed the 

issues presented. See Chivari v. Ferrell, 909 So. 2d 546, 547 (Fla. 4th DCA 

2005) (quoting Perlow, 875 So. 2d at 384); Empire World Towers, LLC v. 

CDR Créances, S.A.S., 89 So. 3d 1034, 1045 (Fla. 3d DCA 2012) (quoting 

Perlow, 875 So. 2d at 388–91).

Notwithstanding this error, we are compelled to affirm the summary 

judgment order on the tenant’s claims based on the “tipsy coachman 

doctrine.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 
3

644–45 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the 

wrong reasons, it will be upheld if there is any basis which would support 

the judgment in the record.”).

The lease bars the tenant’s claim that the leasing agent misrepresented 

the adequacy of parking in pre-lease discussions. The lease was subject 

to a Use Approval Contingency that required the City of Fort Lauderdale’s 

approval. The tenant’s managing member testified that parking was 

essential to the Use Approval Contingency:

Q. Okay. Going back to the Use Approval Contingency, 

Section 7 of the lease rider, how did you know that the 

approval would include parking? Was that something that 

was told?

A. Come on, you know this. You know that the use approval 

is a parking -- in the parking calculations are a 

fundamental component of use approval. Why are you 

asking me this question? I don’t understand what -- either 

I don’t understand the question or I don’t get it.

Q. It was an obvious fact to you that the use approval would 

include confirming that the parking was sufficient under 

Fort Lauderdale code?

A. I wouldn’t say sufficient under Fort Lauderdale code, but 

met whatever zoning requirement existed for the use of the 

premises.

The lease also stated that it was the entire agreement between the 

parties and that the tenant warranted it had not relied on any 

representations other than those in the lease.

A party cannot recover for alleged oral misrepresentations that are 

adequately covered or expressly contradicted in a later written contract. 

See Hillcrest P. Corp. v. Yamamura, 727 So. 2d 1053, 1056 (Fla. 4th DCA 

1999). In this case, the tenant’s fraud claims are specifically negated 

under the lease. So we must affirm the court’s summary judgment on the 

tenant’s fraud and misrepresentation claims.
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B. The Court Erred When It Entered Summary Judgment on

The Landlord’s Counterclaim

The landlord counterclaimed against the tenant for breach of the lease. 

The landlord moved for summary judgment and argued the tenant

underpaid its rent obligations, including Common Area Maintenance 

(CAM) Reconciliations, from November 2013 through September 2017. 

The tenant responded that from the start of the lease, it was incorrectly 

billed for rent, including CAM charges, based on a non-anchor tenant rate. 

The circuit court entered summary judgment for the landlord.

On appeal, the tenant argues the circuit court misinterpreted the plain 

language of the lease and, as a result, miscalculated damages. We agree.

The landlord supported its summary judgment motion with an affidavit 

from the leasing agent’s property manager. According to the affidavit, the 

landlord followed the precise formula set forth in section 2.3 of the lease. 

But section 1.1(k) of the lease, titled “Operating Expenses,” stated that 

“[t]his is a fully net lease and Tenant shall pay its [p]roportionate [s]hare 

of [o]perating [e]xpenses as defined in and [in] accordance with Section 2.3 

of th[e] Lease.” And section 2.3 of the lease defined “proportionate share” 

as the fraction of the total number of rentable square feet of floor area of 

the Leased Premises, divided by the rentable square feet of the floor area 

of the Shopping Center as a whole, less the floor area of any premises 

leased to “anchor” tenants. Finally, the lease defined “anchor tenants” as 

all tenants occupying bays in the Shopping Center that were more than 

8,000 rentable square feet.

In summary, these three provisions required the tenant to pay a 

proportionate percentage of operating expenses, and the calculation of the 

proportionate percentage changed depending on whether the tenant 

occupied more than 8,000 rentable square feet. As applied here, the 

record evidence established the tenant occupied more than 8,000 rentable 

square feet and was an anchor tenant. On remand, the court must 

calculate the tenant’s proportionate share as an anchor tenant.

Therefore, on the landlord’s counterclaim, we reverse the summary 

judgment in the landlord’s favor and remand for further proceedings.
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C. Conclusion

We affirm the circuit court’s summary judgment on the tenant’s 

complaint, reverse the circuit court’s summary judgment on the landlord’s 

counterclaim, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

GROSS and DAMOORGIAN, JJ., concur.

* * *

FINAL UPON RELEASE; NO MOTION FOR REHEARING WILL BE 

ENTERTAINED; MANDATE ISSUED SIMULTANEOUSLY WITH OPINION.