DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HALLANDALE PLAZA, LLC,

Appellant,

v.

NEW TROPICAL CAR WASH, LLC,

Appellee.

No. 4D21-1445

[March 9, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Tabitha Elise Blackmon, Judge; L.T. Case No. COSO-20-

8565.

Kevin H. Fabrikant and Corey J. Biazzo of Fabrikant & Associates, 

PLLC, Hollywood, for appellant.

Holiday Hunt Russell of Holiday Hunt Russell PLLC, Fort Lauderdale, 

for appellee.

CONNER, C.J.

Hallandale Plaza, LLC (“the Landlord”) appeals the order dismissing its

eviction action against New Tropical Car Wash LLC (“the Tenant”). The 

Landlord contends the trial court erred in: (1) denying due process by sua 

sponte dismissing the eviction action on the Tenant’s preliminary motion 

to determine rent; (2) finding the Tenant paid additional rent under duress; 

(3) failing to consider that the Tenant’s payment of additional rent for a 

period constituted a waiver of an alleged oral amendment to the written 

lease removing the obligation of additional rent; and (4) misinterpreting 

the written lease agreement. We reverse as to the first, second, and fourth

issues and remand for further proceedings, addressing the third issue to 

the extent it is relevant on remand.

Background

The Landlord acquired the rental property from a former owner, subject 

to an existing written commercial lease between the prior owner and the 

Tenant (“the Lease”). Subsequently, the Landlord filed a one-count 
2

complaint for eviction against the Tenant, alleging that the Tenant failed 

to pay the full amount of rent due under the Lease and the Landlord had 

been assigned the rights under the Lease as the landlord.

In its answer, the Tenant denied the allegation that it failed to pay rent 

and asserted that it was current with its rental obligations. On the same 

day the Tenant filed its answer, the Tenant also filed its motion to 

determine rent pursuant to chapter 83, Florida Statutes. The motion 

sought determination of the rent to be paid during the pendency of the 

eviction action. The motion further asserted that not only was there no 

rent due, but instead the Landlord owed the Tenant thousands of dollars 

in “improper forced payments” of real estate taxes and operating expenses.

The Lease was admitted into evidence at the hearing on the motion to 

determine rent. The Lease required the Tenant to pay “base rent” and 

“additional rent.” The base rent was a consistent monthly amount. The 

additional rent was a proportionate share of “annual operating expenses”

and “annual taxes” incurred by the Landlord for the property. The Lease 

provided that the Tenant’s proportionate share of additional rent would be 

estimated before each lease year began, divided into twelve payments, and 

payable monthly with the base rent. Each year, if the estimated amount 

of additional rent proved to be inaccurate, the additional rent would be 

adjusted accordingly.

The evidence reflected that the Tenant’s base rent was in the court 

registry and was current. However, the parties disagreed as to any 

additional rent due. The Tenant’s representative testified to an oral 

agreement with the original landlord, amending the Lease to remove the 

Tenant’s obligation of additional rent. Evidence was presented that: (1)

prior to purchasing the property from the original landlord, the Landlord 

expressed concern as to whether an amendment to the Lease terms had 

been made such that would prevent it from enforcing the terms of the 

Lease; (2) the Landlord was advised in writing that an oral agreement had 

been made between the Tenant and original landlord that the Tenant 

would not have to make those payments; and (3) because of the oral 

modification agreement, the Tenant never paid operating expenses or real 

estate taxes to the original landlord, and that for more than a year after 

the Landlord purchased the subject property, the Landlord had not 

charged him the additional rent.

The Tenant’s representative testified that subsequently, the Landlord’s 

director began harassing him to pay the real estate taxes and operating 

expenses, explaining that the Landlord sent him a notice stating it would 

take possession of the premises if the Tenant did not make the payments. 
3

The Tenant’s representative testified he did not have a choice, did not feel 

comfortable, and was under a lot of pressure when he ultimately paid that 

additional rent. Evidence was presented that the Tenant had a pending 

small claims action to recoup the payments made for real estate taxes and 

operating expenses due to the Landlord’s harassment.

The Landlord presented evidence that while the original landlord 

indicated it had orally agreed with the Tenant that the Tenant would not 

have to pay additional rent, the Landlord nevertheless proceeded on the 

Lease terms because the Lease clearly required a written addendum to 

document a modification of the Lease and there was no written addendum.

The Tenant argued to the trial court that the issue before it was the 

Tenant’s responsibility for payment of operating expenses and that the 

Lease was ambiguous. The Tenant maintained that while one portion of 

the Lease generally referred to operating expenses as additional rent, a 

specific definition of “operating expenses” in the Lease reflected that such 

did not include real estate taxes. The Tenant argued that this conflict 

made the Lease terms ambiguous and that the Lease should be construed 

against the Landlord. The Tenant also argued that the Landlord stepped 

into the shoes of the original landlord who had modified the Lease and not 

charged for the additional rent, waiving any obligation on the part of the 

Tenant to pay such expenses, and that this was expressed to the Landlord 

prior to its purchase of the property.

The Landlord argued that the Lease was not ambiguous, that additional 

rent was defined as operating expenses and taxes, and that taxes not being 

defined within “operating expenses” made sense. The Landlord

maintained that the oral agreement between the original landlord and the 

Tenant was not sufficient to constitute modification of the Lease, and that 

the Tenant waived any right to claim it was not obliged to pay the taxes 

and operating expenses when it made such payments in the past to the 

Landlord.

The trial court entered its order on the Tenant’s motion, wherein it 

acknowledged that both parties agreed that the Tenant was current as to 

the payment of base rent but disagreed as to whether “additional rent” was 

outstanding. The trial court concluded that the Lease was ambiguous as 

to what “additional rent” consisted of, noting that while the Lease’s 

paragraph 3(c) provides for the payment of operating expenses, paragraph 

3(d) defines “operating expenses” as not including “real property taxes.” 

The trial court reasoned that, at a minimum, the issue of whether 

“‘additional rent’ i.e. operating expenses,” encompassed real estate taxes 
4

was ambiguous and should be construed against the drafter as well as the 

Landlord as the successor landlord.

The trial court found that the Tenant was not required to pay additional 

rent due to the oral agreement reached by the Tenant and the original 

landlord, which the trial court determined amended the Lease. The trial 

court found that the original landlord took no action to collect these 

amounts and that the Landlord purchased the property with knowledge of 

same, and that in fact, the Landlord did not raise the issue to the Tenant 

until more than a year after the Landlord purchased the property. The

trial court rejected the Landlord’s claim that the oral agreement amending 

the Lease was invalid under the Lease requirement that changes be in 

writing and signed by both parties. The trial court instead relied on case 

law holding that oral modification may be permissible despite a provision 

requiring changes to be in writing where the oral agreement is accepted 

and acted upon “in such [a] manner as would work a fraud on either party 

to refuse to enforce.” King Partitions & Drywall, Inc. v. Donner Enters., Inc.,

464 So. 2d 715, 716 (Fla. 4th DCA 1985) (quoting Prof’l Ins. Corp. v. Cahill,

90 So. 2d 916, 918 (Fla. 1956)). The trial court concluded that such was 

the case here, where even the Landlord recognized prior to its purchase of 

the property that the Tenant and original landlord had amended the Lease 

so that the Tenant would not be responsible for payment of “additional 

rent.”

The trial court also concluded that the Landlord harassed the Tenant 

about the payment of additional rent and that the Tenant, under duress,

began paying additional rent.

Based on the foregoing, the trial court ruled that the Tenant was 

current with its monthly rental obligations and was not required to pay 

“additional rent.” In addition, the trial court dismissed the case and 

transferred it to the judge handling the Tenant’s small claim suit to 

address any subsequent motions collateral to the dismissal. The 

Landlord’s motion for rehearing was denied and the Landlord gave notice 

of appeal.

Appellate Analysis

Due Process

The Landlord argues on appeal that it was denied due process when 

the trial court sua sponte dismissed the eviction action upon ruling on the 

Tenant’s motion to determine rent. More specifically, the Landlord argues 

it was deprived of notice and opportunity to be heard on the issue of 
5

dismissal of the action. The Landlord maintains the purpose of the motion 

authorized by statute is to provide a preliminary hearing to determine the 

amount of rent to be deposited into the court registry during the pendency 

of the eviction action. The Landlord points out that the Tenant did not 

move or ask for dismissal and argues that “[a] trial court cannot dismiss a 

cause of action without a pending motion or objection,” and thus “[i]t is a 

due process violation for a trial court to sua sponte dismiss a claim without 

notice or a hearing,” citing Bank of N.Y. Mellon Corp. v. Hernandez, 299 So. 

3d 461, 463 (Fla. 3d DCA 2020). The Landlord also argues that the motion 

to determine rent was not intended to serve as a vehicle for final 

adjudication of eviction actions.

Section 83.232, Florida Statutes (2020), concerns “Rent paid into

registry of court,” and provides:

(1) In an action by the landlord which includes a claim for 

possession of real property, the tenant shall pay into the court 

registry the amount alleged in the complaint as unpaid, or if 

such amount is contested, such amount as is determined by the 

court, and any rent accruing during the pendency of the 

action, when due, unless the tenant has interposed the 

defense of payment or satisfaction of the rent in the amount 

the complaint alleges as unpaid.

. . . .

(2) If the tenant contests the amount of money to be placed into 

the court registry, any hearing regarding such dispute shall be 

limited to only the factual or legal issues concerning:

(a) Whether the tenant has been properly credited by the 

landlord with any and all rental payments made; and

(b) What properly constitutes rent under the provisions of the 

lease.

§ 83.232(1)-(2), Fla. Stat. (2020) (emphasis added). The statute also 

provides that a tenant’s failure to pay rent due into the court registry as 

ordered operates as a waiver of a tenant’s defenses and entitles the 

landlord to immediate default for possession. § 83.232(5), Fla. Stat. 

(2020). The purpose of section 83.232 is “to protect a commercial landlord 

from irreparable harm where a tenant holds over during eviction 

proceedings without paying rent.” Lenmar Realty, LLC v. Sun Elec. Works, 
6

Inc., 317 So. 3d 125, 129 (Fla. 4th DCA 2021) (quoting Famsun Invest, LLC 

v. Therault, 95 So. 3d 961, 963 (Fla. 4th DCA 2012)).

At the hearing on the motion, the parties agreed the Tenant was current 

on base rent payments, which the record reflects were being paid into the 

court registry. The dispute was how much additional rent was due, if any. 

Pursuant to section 83.232(2)(b), the trial court was to conduct an 

evidentiary hearing limited to the factual and legal issues concerning 

“[w]hat properly constitutes rent under the provisions of the lease.” § 

83.232(2)(b), Fla. Stat. (2020). In this case, the trial court concluded after 

the evidentiary hearing that no additional rent was due, as the Lease had 

been modified to remove such obligation, and dismissed the action, 

transferring any post proceeding motions to the pending small claims 

action filed by the Tenant. The Landlord asserts that the trial court erred 

in dismissing the action after the hearing and at most, the trial court 

should have held, on a preliminary basis, that the Tenant did not have to 

deposit additional rent into the court registry and should have allowed the 

case to proceed to a proper trial on whether to grant eviction. We agree.

Our decision in Rowe v. Macaw Holdings I, LLC, 248 So. 3d 1178 (Fla. 

4th DCA 2018), is instructive. There, the lease described a credit to which 

the tenant was entitled for partial destruction of the premises as a 

reduction to “fixed rent.” Id. at 1179. Where the parties disputed the 

amount of rent due after considering the credit, we held that the trial court 

erred by failing to hold an evidentiary hearing under section 83.232(2). Id.

at 1180. We reasoned:

This case fell under section 83.232(2)(b), which contemplates 

a hearing on “[w]hat properly constitutes rent” under a lease. 

The trial court was required to make at least a preliminary 

determination of the reduction, if any, to which the tenant was 

entitled regarding the deposit into the court registry required 

by section 83.232. Like the findings in a temporary relief 

hearing in a chapter 61 case, a finding at a section 83.232 

hearing can be modified after discovery and a final hearing on 

the merits.

Id. (alteration in original) (emphasis added). As such, in Rowe, we

compared a court’s findings on a motion to determine rent to be paid into 

the court registry to findings on a motion for temporary relief in dissolution 

of marriage proceedings, noting that such are required to be made 

preliminarily and can be modified after discovery and a final hearing on the 

merits. See id.
7

In the instant case, although the issues raised at the evidentiary 

hearing on the motion to determine rent may have been the same issues

to be resolved at an eviction trial, review of the record reflects that 

discovery had not yet occurred. Nor had the matter been set for a final 

hearing on the merits. Rather, the Tenant filed its motion to determine 

rent at the same time it filed its answer to the complaint. And while the 

Landlord was given notice of the hearing itself, the notice did not reflect 

that such hearing would be a final hearing or that dismissal of the action 

was at issue. As such, the trial court erred in sua sponte dismissing the 

action by denying the Landlord due process. Upon hearing the Tenant’s 

motion to determine rent, the trial court was to make a preliminary 

determination as to the factual and legal issues concerning what, if any, 

additional rent was due to the court registry for the duration of the action

and nothing more.

Payment of Additional Rent Under Duress

We agree with the Landlord’s arguments that there was no competent 

substantial evidence to support the trial court’s finding that additional 

rent was paid under duress.

“When evaluating whether competent, substantial evidence supports a 

trial court’s ruling, ‘[l]egal sufficiency . . . as opposed to evidentiary weight, 

is the appropriate concern of an appellate tribunal.’” Stone v. Stone, 128 

So. 3d 239, 240 (Fla. 4th DCA 2013) (alterations in original) (quoting 

Brilhart v. Brilhart ex rel. S.L.B., 116 So. 3d 617, 619 (Fla. 2d DCA 2013)).

“To establish duress, two factors must be proven: (1) that the act was 

effected involuntarily and was not an exercise of free choice or will, and (2) 

that this condition of mind was caused by some improper and coercive 

conduct by the other side.” AMS Staff Leasing, Inc. v. Taylor, 158 So. 3d 

682, 687 (Fla. 4th DCA 2015). As the Landlord notes, however, “it is not 

improper and therefore not duress to threaten what one has a legal right 

to do.” City of Miami v. Kory, 394 So. 2d 494, 498 (Fla. 3d DCA 1981).

[A] threat to bring a civil action or to resort to remedies 

available under a contract is not such duress as will justify 

rescission of a transaction induced thereby. This is true even 

though it is subsequently determined that there is no legal 

right to enforce the claim, provided the threat is made in good 

faith, i.e., in the reasonable belief that a possible cause of 

action exists.
8

Id. (quoting 13 Williston on Contracts § 1606, at 672-73 (3d ed. Jaeger rev. 

1970)).

In this regard, although the Tenant’s representative testified he was 

under pressure and did not feel he had a choice when he made the 

payments of additional rent due to the Landlord’s “harassment,” the only 

harassment which the Tenant described was the Landlord threatening to 

take possession of the leased premises, presumably by initiating an 

eviction. Indeed, such was the nature of the “repeated threats” described

in the Tenant’s affirmative defense. However, the Landlord presented 

sufficient evidence of a good faith basis to believe the Lease was not 

properly modified. Thus, although the trial court found the Landlord was 

not entitled to additional rent due to an oral agreement amending the 

Lease, the Landlord’s threats to evict the Tenant do not meet the legal 

requirements for “duress.” Therefore, the record does not reflect 

competent substantial evidence to support the trial court’s conclusion that 

the Tenant’s payments of additional rent to the Landlord were made under

duress.

Waiver of the Amendment of Lease

The Landlord also argues on appeal that the trial court failed to 

consider that the Tenant’s conduct of paying the additional rent to the 

Landlord prior to the Landlord’s eviction action constituted a waiver of the 

Tenant’s prior oral agreement with the original landlord to remove

additional rent from the Tenant’s obligation. We disagree. Review of the 

trial court’s order reflects that the trial court did not ignore the waiver 

argument, but instead the trial court alternatively concluded that these 

payments were made by the Tenant under duress. However, because we 

reverse the trial court’s finding of duress, the trial court will be free to 

consider any evidence and argument the Landlord presents on remand

regarding waiver.

Interpretation of the Lease

Finally, the Landlord contends the trial court misinterpreted the Lease

by determining in part that the Tenant was not required to pay its share 

of the real estate taxes on the leased property because of an ambiguity in 

the language of the Lease.

“It is a fundamental rule of contract interpretation that a contract 

which is clear, complete, and unambiguous does not require judicial 

construction.” Imagine Ins. Co., v. State ex rel. Dep’t of Fin. Servs., 999 So. 

2d 693, 696 (Fla. 1st DCA 2008) (quoting Jenkins v. Eckerd Corp., 913 So.
9

2d 43, 50 (Fla. 1st DCA 2005)). Accordingly, “[w]hen the language of a 

contract is clear and unambiguous, courts must give effect to the contract 

as written and cannot engage in interpretation or construction as the plain 

language is the best evidence of the parties’ intent.” Talbott v. First Bank 

Fla., FSB, 59 So. 3d 243, 245 (Fla. 4th DCA 2011). Regarding ambiguity,

“[w]hether a document is ambiguous depends upon whether 

it is reasonably susceptible to more than one interpretation.”

Detroit Diesel Corp. v. Atl. Mut. Ins. Co., 18 So. 3d 618, 620 

(Fla. 4th DCA 2009) (quoting Lambert v. Berkley S. Condo. 

Ass’n, 680 So. 2d 588, 590 (Fla. 4th DCA 1996)). “However, 

a true ambiguity does not exist merely because a document 

can possibly be interpreted in more than one manner.” Id.

(quoting Lambert, 680 So. 2d at 590). “In construing the 

language of a contract, courts are to be mindful that ‘the goal 

is to arrive at a reasonable interpretation of the text of the 

entire agreement to accomplish its stated meaning and 

purpose.’” Murley v. Wiedamann, 25 So. 3d 27, 29 (Fla. 2d 

DCA 2009) (emphasis added) (quoting Taylor v. Taylor, 1 So. 

3d 348, 350 (Fla. 1st DCA 2009)).

Sidiq v. Tower Hill Select Ins. Co., 276 So. 3d 822, 827 (Fla. 4th DCA 2019).

The relevant lease provisions at issue are paragraphs 3(c) and 3(d) of 

the Lease. Paragraph 3(c) is titled “Additional Rent” and provides in 

pertinent part:

Tenant shall pay, as additional Rent (“Additional Rent”),

prorated for the part of the Lease Term within the applicable 

calendar year, Tenant’s Percentage Share (“Tenant’s 

Percentage Share”), as hereafter defined, of the total amount 

of (i) the annual operating expenses (“Operating Expenses”), 

as hereafter defined and (ii) the annual taxes (“Taxes”) for the 

Building.

(emphasis added). Paragraph 3(d) defines material terms of the Lease, and 

in defining the term “operating expenses,” paragraph 3(d)(I) states: 

“Operating Expenses shall not include real property taxes.” The term 

“Taxes” is also separately defined in paragraph 3(d)(III) to mean:

[T]he gross amount of all . . . taxes . . . including all taxes 

whatsoever . . . attributable in any manner to the Building, 

the land on which the Building is located . . . or any charge 

or other amount required to be paid to any governmental 
10

authority, whether or not any of the foregoing shall be 

designated ‘real estate tax,’ . . . or designated in any other 

manner.[1]

Thus, we agree with the Landlord that the Lease’s plain language 

reflects that additional rent is defined as the tenant’s percentage share of 

the (1) annual operating expenses and (2) the annual taxes. While real 

property taxes are excluded from the definition of operating expenses, they 

are included in the definition of “taxes” which is the second component of 

the additional rent defined by the Lease.

In its order, the trial court may have equated the term “additional rent” 

with “annual operating expenses,” as the trial court does not appear to 

have analyzed the definition of the second component of the additional 

rent, which was “annual taxes.”2 Regardless, the Landlord is correct that 

1 The full paragraph defining taxes is the following:

(III) The term “Taxes” shall mean the gross amount of all

impositions, taxes, assessments (special or otherwise), water and 

sewer assessments and other governmental liens or charges of any 

and every kind, nature and sort whatsoever, ordinary and 

extraordinary, foreseen and unforeseen, and substitutes therefor, 

including all taxes whatsoever (except for taxes for the following 

categories which shall be excluded from the definition of Taxes: any 

inheritance, estate, succession, transfer or gift taxes imposed upon 

Landlord or any income taxes specifically payable by Landlord as a 

separate tax-paying entity without regard to Landlord’s income 

source as arising from or out of the Building and/or land on which 

it is located) attributable in any manner to the Building, the land on 

which the Building is located or the rents (however the term may be 

defined) receivable therefrom, or any part thereof, or any use 

thereon, or any facility located therein or used in conjunction 

therewith or any charge or other amount required to be paid to any 

governmental authority, whether or not any of the foregoing shall be 

designated “real estate tax”, “sales tax”, “rental tax”, “excise tax”, 

“business tax”, or designated in any other manner.

(emphasis added).

2 Presumably, the trial court may have been led astray by the parties’ use of the 

terms. For instance, in the Landlord’s notice letter that preceded the eviction 

suit, the Landlord advised the Tenant that the Tenant was responsible for paying 

“operating expenses as additional rent,” citing Paragraphs 3(c) and 3(d) of the 

Lease. Notably, the notice letter contained no mention of real property taxes. 

Further confusion may have been caused by the testimony of the Landlord’s 
11

the Lease’s plain language does not reflect any ambiguity as to whether a 

proportionate share of the real estate taxes were intended as additional 

rent. Notably, without explaining its analysis, the trial court found

ambiguity against the Landlord and then proceeded to make its threshold 

finding that the Lease was orally modified to remove the requirement to 

pay additional rent.3 We conclude the trial court erred in finding the Lease 

ambiguous on the issue of a proportionate share of real estate taxes as 

additional rent.

Conclusion

We reverse the trial court’s dismissal of the eviction action because it 

violated the Landlord’s due process rights and because no competent 

substantial evidence supported the trial court’s finding that the Tenant’s 

payment of additional rent was made under duress. We further determine 

that the trial court erred in finding the Lease was ambiguous as to whether 

the additional rent provision required payment of a proportionate share of 

real estate taxes. On remand, the trial court shall make appropriate 

preliminary findings as to the amount of rent that the Tenant should pay 

into the court registry while the eviction action is pending. The trial court 

may entertain further evidence to resolve the motion to determine rent. As 

to the effect of the preliminary nature of the remand ruling on the motion, 

our opinion should be considered law of the case on the issue of duress;

however, the trial court may make a preliminary determination as to the 

issue of oral modification of the Lease and waiver thereof. Our opinion 

also should be considered as law of the case in resolving the eviction action 

as to whether the Lease is ambiguous concerning the requirement of 

additional rent to cover real estate taxes.

Reversed and remanded with instructions.

FORST and KUNTZ, JJ., concur.

* * *

director that the Landlord was only charging the Tenant taxes and insurance as 

additional rent and was not charging Tenant the operating expenses, even though 

the Lease entitled it to do so.

3 The Landlord does not raise a specific challenge to the merits of the trial court’s 

ultimate conclusion that the Lease language was modified by the oral agreement 

between the Tenant and the original landlord so that the Tenant would not have 

to pay any additional rent. Therefore, this issue is not before us.
12

Not final until disposition of timely filed motion for rehearing.