Howard Avenue Station, LLC, et al v. Frank Kane

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14350
____________________
In re: HOWARD AVENUE STATION, LLC,
Debtor.
___________________________________________________
HOWARD AVENUE STATION, LLC,
Plaintiff-Appellee,
THOMAS ORTIZ,
Interested Party-Appellee,
versus
FRANK KANE,
Defendant-Appellant.
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2 Opinion of the Court 21-14350
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02491-WFJ,
8:12-bk-08821-CPM
____________________
Before G RANT, TJOFLAT, Circuit Judges, and H UFFAKER ,* District
Judge.
PER CURIAM:
Several years ago, appellant Frank Kane (the “Landlord”)
leased certain commercial real property to Howard Avenue Sta-
tion, LLC (the “Tenant”). In 2012, after Tenant allegedly failed to
meet his rental obligation, Landlord brought an eviction proceed-
ing against Tenant in a Florida state court. Tenant responded by
seeking relief under Chapter 11 of the Bankruptcy Code in the
Bankruptcy Court of the Middle District of Florida. Landlord
moved the Bankruptcy Court for relief from the automatic stay
pursuant to 11 U.S.C. § 362(d) to enforce his rights in state court,
and alternatively, to compel Tenant to pay all post-petition rent and
make monthly adequate protection payments of $21,400. The
Bankruptcy Court granted Landlord’s alternative motion.
* Honorable R. Austin Huffaker, United States District Judge for the Middle
District of Alabama, sitting by designation.
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21-14350 Opinion of the Court 3
In 2019, Tenant moved the Bankruptcy Court for leave to
abate these rental payments after the City of Tampa ordered Ten-
ant to vacate the property because it was unfit for human habita-
tion. The Bankruptcy court granted the motion on July 12, 2019,
pursuant to Florida Statute § 83.201.1 In its order, the Bankruptcy
Court stated that “[a]dequate protection payments are abated until
the required repairs have been made . . . at which time any
1 Florida Statute § 83.201 provides:
When the lease is silent on the procedure to be followed to
effect repair or maintenance and the payment of rent relating
thereto, yet affirmatively and expressly places the obligation
for same upon the landlord, and the landlord has failed or re-
fused to do so, rendering the leased premises wholly un-
tenantable, the tenant may withhold rent after notice to the
landlord. The tenant shall serve the landlord, in the manner
prescribed by s. 83.20(3), with a written notice declaring the
premises to be wholly untenantable, giving the landlord at
least 20 days to make the specifically described repair or
maintenance, and stating that the tenant will withhold the rent
for the next rental period and thereafter until the repair or
maintenance has been performed. The lease may provide for
a longer period of time for repair or maintenance. Once the
landlord has completed the repair or maintenance, the tenant
shall pay the landlord the amounts of rent withheld. If the
landlord does not complete the repair or maintenance in the
allotted time, the parties may extend the time by written
agreement or the tenant may abandon the premises, retain the
amounts of rent withheld, terminate the lease, and avoid any
liability for future rent or charges under the lease. This section
is cumulative to other existing remedies, and this section does
not prevent any tenant from exercising his or her other reme-
dies.
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4 Opinion of the Court 21-14350
withheld rent and/or adequate protection payments shall be paid.”
Fourteen days later, Thomas Ortiz, Tenant’s sole member, moved
the Bankruptcy Court for rehearing or modification of the July 12
order. Ortiz asked that the order be modified to provide that Ten-
ant was relieved of its obligation to pay any back rent if the leased
premises were repaired. The Bankruptcy Court denied this motion
in an order entered on August 28, 2019.
Tenant appealed the July 12 and August 28 orders to the Dis-
trict Court. In response to Tenant’s argument that it should not be
obligated to pay back rent upon reoccupying the buildings, the Dis-
trict Court recognized the obvious. That is, if Tenant reoccupies
the building, Tenant will have a claim against Landlord for the dam-
ages it sustained while deprived of the use of the leased premises.
And requiring Tenant to pay the back rent in advance of a determi-
nation of such damages—presumably in the form of a setoff or
counterclaim—would be inequitable. The District Court affirmed
the Bankruptcy Court’s orders in part (concerning the abatement
of rent due while the leased premises were inhabitable) and re-
versed it in part (concerning the requirement that Tenant pay the
back rent upon resuming possession of the premises). [Id.]
Landlord appeals the District Court’s decision. It seeks an
affirmance of the Bankruptcy Court’s decision—specifically, the re-
quirement that Tenant pay back rent upon reentering the leased
premises. We are persuaded that, in the interests of equity, the
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21-14350 Opinion of the Court 5
District Court’s solution is just and reasonable. Accordingly, we
affirm.2
AFFIRMED.
2 The motion of Thomas Ortiz to dismiss this appeal for lack of jurisdiction is
denied. The motion of Frank Kane to dismiss Thomas Ortiz as a party to this
appeal is also denied.
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