Florida/Georgia Personal Injury & Workers Compensation

...distress as a result of not having adequate alternative housing readily available to them and their five year old son. In count one of their amended complaint, the appellants sought statutory damages for breach of their landlords' duties pursuant to section 83.67, Florida Statutes (1995)....

...d that the lease was in full force and effect on April 6, 1995. On that date, Jacobs returned to the residence and found himself locked out and his personal property thrown into the street. He initially sued for 1) wrongful eviction; 2) violation of section 83.67, Florida Statutes (1997); 3) conversion; and 4) negligence....

...the Hillsborough County Housing Code as there were no locks on the windows and standing water in the bedroom and bathroom) for a total of $1,314.48. In addition, Judge Honeywell entered an order against the Creasys, for violation of Florida Statute § 83.67 for preventing the tenant reasonable access to the dwelling and removing the tenant's personal property....

...He [or she] must have more than a unilateral expectation of it. He [or she] must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 (emphasis added). 12 James cites three Florida statutes as the source of her entitlement to continued water service: Fla.Stat. chs. 83.67(1), 180.135(1)(a), and 180.135(4) (1993). Section 83.67(1) prohibits a landlord from directly or indirectly causing the termination or interruption of a tenant's utility service....

...The appellants, who allege they were tenants of the appellees, appeal the trial court's order denying their motion for a mandatory injunction. They sought the *1067 immediate possession of a residential apartment, contending that the appellees violated section 83.67(2), Florida Statutes, by changing the locks of the apartment....

...He [or she] must have more than a unilateral expectation of it. He [or she] must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 (emphasis added). James cites three Florida statutes as the source of her entitlement to continued water service: Fla.Stat. ehs. 83.67(1), 180.135(l)(a), and 180.135(4) (1993). Section 83.67(1) prohibits a landlord from directly or indirectly causing the termination or interruption of a tenant’s utility service....

...s has a protectable property interest. To do this, we begin with an examination of pertinent Florida law. Florida statutes provide residential tenants with various protections from the wrongful termination of utility services. For example, Fla.Stat. § 83.67 prohibits a landlord from interrupting a tenant’s water service, directly or indirectly....

...However, Memphis Light shows us that this inquiry is not necessary. 436 U.S. at 8 , 98 S.Ct. at 1559-60 . . The Due Process Clause of the Fourteenth Amendment states: "nor shall any State deprive any person of life, liberty or property, without due process of law." . Fla.Stat. § 83.67 (1991) provides in pertinent part: (1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility services furnished the tenant, including, but not limited to, w...

...ontinuing service to . Id. . Fla.Stat. §§ 83.51 (1982), 83.54 (1973) and 83.59 (1982). . Effective October 1, 1987, eleven months after DiMassimo , the landlord’s inability to use utility cutoff as constructive eviction was codified in Fla.Stat. § 83.67 (1991)....

conceded Plaintiff was entitled to fees under section 83.67(6), Florida Statutes (2015). However, at a later

...The constructive eviction count sought damages, costs, and attorney’s fees. Defendant counterclaimed for breach of contract and unjust enrichment. Plaintiff filed affirmative defenses to the counterclaim, specifically alleging the claims were barred by section 83.67(6), Florida Statutes (addressing violations of Florida’s residential tenancy act). After conducting a two-day nonjury trial, the trial court found that Defendant violated section 83.67(6) and “unlawfully attempted self help eviction” by changing the locks....

...o schedule a hearing on the fee motion. At that hearing, Plaintiff was pro se. Referring to the prior judge’s ruling at the end of the nonjury trial, defense counsel told the trial court: He indicated that Defendant, my client, has violated 83.676 [sic] by changing the locks....

...So I think in light of those two I don’t think there’s an issue to fight the determination of entitlement as to the construction – constructive eviction case. When specifically asked if Defendant conceded that Plaintiff was entitled to fees, defense counsel stated: “I believe under 83.67 she’s entitled – as to her constructive eviction claim she’s entitled to attorney’s fees and costs.” After the hearing, as suggested by defense counsel, the trial court entered an order stating it would “hold an evidentiary hearing on the amount of fees [and] costs which [Plaintiff] may be able to recover under her constructive eviction claim [and] F.S. 83.67(6).” The order also directed Plaintiff to produce to Defendant, thirty days prior to the fee hearing, whatever documents she intended to use and to cooperate with Defendant in setting the next hearing. Continuing to represent herself, Plaintiff filed a memorandum in support of her fee motion. The memorandum explained that Plaintiff was requesting fees pursuant to section 83.67(6) and stated that she “was also successful in defending against the two (2) counterclaims filed” by Defendant, pointing out that the counterclaims “asked for the award of attorney’s fees and court costs under Florida Statutes �...

...filed other pro se motions pertaining to supplementary proceedings she sought to pursue. After retaining new counsel, Plaintiff next filed a sworn supplemental motion for attorney’s fees and costs, asserting entitlement to fees under 3 section 83.67(6)....

...explaining that her original fee motion contained a clerical error as to the statute it cited as a basis for fees and stated that “[t]here are two attorney fee provisions that apply in this landlord/tenant action: one is Florida Statute 83.48 and the other is the lockout statute, FS 83.67.” Additionally, the memo mentioned that Plaintiff had previously moved for sanctions against Defendant under section 57.105, Florida Statutes (2016), for asserting frivolous claims after constructively evicting Plaintiff....

...relief or order sought.” Fla. R. Civ. P. 1.100(b). “The purpose of rule 1.100 is to put the opposing party on notice of the grounds which will be asserted against it.” Jaffrey v. Baggy Bunny, Inc., 733 So. 2d 1140, 1141 (Fla. 4th DCA 1999). Section 83.67(5), Florida Statutes (2015), provides in part: (5) A landlord of any dwelling unit governed by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenanc...

...personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with s. 83.59(3)(d), or a lawful eviction. § 83.67(5), Fla....

...interfering with the tenant’s beneficial enjoyment of the leased premises.”); Barton v. Mitchell Co., 507 So. 2d 148, 149 (Fla. 4th DCA 1987) (“A constructive eviction occurs when a tenant is essentially deprived of the beneficial enjoyment of the leased premises . . . .”). Section 83.67(6), Florida Statutes (2015), provides that “[a] landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees.” § 83.67(6), Fla....

...3d at 207). Since the constructive eviction final judgment was entered in her favor, Plaintiff argues that she is entitled to fees even though she did not specifically cite the statute in her initial fee motion, because her complaint for constructive eviction under section 83.67(5) sufficed. Stated another way, pursuant to the attorney’s fees provision in section 83.67(6), Plaintiff argues that Defendant was sufficiently apprised of her argued basis for fees via her complaint and she did not have to cite the fee statute in her initial fee motion. Defendant opposes that argument, relying on two cases from this Court....

...actly the type of ambush which rule 1.100 seeks to prevent,” and reversed the trial court’s award of fees. Id. at 1141–42. However, Jaffrey differs from this case because Plaintiff was not relying on evidence in support of fees outside of section 83.67(6) or the final judgment....

...fees on new bases, presumably referring to Plaintiff’s pro se supplemental fee motion and her pro se supplemental trial brief filed before the last hearing. To the extent that those pro se filings raised grounds for fees in addition to authority under section 83.67(6), we agree with Defendant’s argument. But the issue Plaintiff confronts in this appeal is the trial court’s denial of fees based on waiver for failure to timely move for fees with a specific reference to section 83.67. Turning to Plaintiff’s pro se supplemental filings, European Bank did not preclude the trial court from awarding fees under the same basis in the amended motion as the original motion....

...the original and amended motions. European Bank, 969 So. 2d at 451. In other words, an untimely amended motion that contains an additional basis for fees does not waive the basis raised in the original motion. See id. Here, the trial court believed that a fee award under section 83.67(6) had merit, but denied the award because the statute was specifically referenced for the first time in Plaintiff’s supplemental motion, which the trial court considered to be untimely. We agree with Plaintiff’s argument that t...

...Bank because, unlike that case, Defendant was put on notice as to the grounds for the motion for fees. Plaintiff supports this argument by asserting that: (1) she asked for fees based on unlawful eviction in her complaint; (2) her answer to the amended counterclaim specified section 83.67 as a basis for denying the counterclaim and granting fees to Plaintiff; 8 and (3) the trial court cited section 83.67(6) as the basis for damages and attorney’s fees in the constructive eviction final judgment. Individually, these arguments are generally insufficient to place the opposing party on notice of the grounds in a fee motion....

...plead a claim for attorney’s fees.” Stockman, 573 So. 2d at 838 (emphasis added). On the facts of this case, we agree with Plaintiff’s argument that Defendant was on actual and “fair notice” that Plaintiff was seeking fees pursuant to section 83.67(6) where: (1) Plaintiff requested fees in the complaint based on constructive eviction; (2) Plaintiff referenced the same statute in raising affirmative defenses to the counterclaim alleging breach of contract and seeking fees; (3) Plai...

...duly elevate form over substance. 9  Having concluded that the trial court erred in denying Plaintiff’s original motion for fees as not timely stating a basis to award attorney’s fees for a violation of section 83.67(6), we reverse the order denying Plaintiff’s motion for attorney’s fees and remand for the trial court to determine the proper amount of fees to be awarded to Plaintiff under that section. We note that our reversal in this case is heavily premised on the facts surrounding the proceedings in this case....

...See Ch. 2013-136, § 2, at 2, Laws of Fla. (“[T]he party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party.” (emphasis added)). Significantly, the language of section 83.67(6) provides that a landlord “shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees” for a violation of section 83.67. § 83.67(6), Fla. Stat. (emphases added). We leave for another day the determination of whether entitlement to attorney’s fees as costs pursuant to section 83.67(6) is discretionary and whether a separate entitlement determination is even needed. 10  Reversed and remanded for further proceedings. WARNER and FORST, JJ., concur....

...(2022). There is no such definition in the statutes with which we are working here. Something else is missing: where the Legislature has specified that it is using “liable” exclusively in the “pay-money” sense, it often identifies which parties are, or are not, liable “for damages.” See, e.g., § 83.67(4), Fla....

...dure 9.130(a)(3)(B), we have jurisdiction to review that portion of the October 4 Order that enjoins Landlord from causing the interruption of the electric utility service to Tenant’s unit and requires Landlord to restore power to the unit. See § 83.67, Fla....

...able harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the tenant from pursuing any other remedy at law or equity the tenant may have. . . . § 83.67, Fla....

...(2019). Because the Act authorizes a negligence-based cause of action, we conclude that the comparative fault statute governs claims brought under the Act. Cf. Jacobs v. Westgate, 766 So. 2d 1175, 1180 (Fla. 3d DCA 2000) (in which the plaintiff claimed that the defendants violated section 83.67, Florida Statutes (1997), and “the defendants had the burden of proving the defense of comparative negligence”). Beyond the applicability of section 768.81, we deem comparative fault to be among the background principles that inform a reasonable reading of the Act....

...The tenant sought to bring a class action on behalf of himself and other tenants, seeking damages for interruption of water and elevator services that occurred during renovations to convert a rental building into a *503 condominium. According to the tenant, Section 83.67, Florida Statutes (1995), entitled him to damages in the amount of three months’ rent for each interruption of utility services necessitated by the construction process. Section 83.67 prohibits a landlord from terminating or interrupting any utility service and specifically states: (1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any ut...

...tive intent. As phalt Pavers, Inc. v. Department of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991); Ellsworth v. Insurance Co. of North America, 508 So.2d 395 (Fla. 1st DCA 1987). Applying these principles, we conclude that the legislative history behind Section 83.67 supports the trial court’s dismissal of the tenant’s complaint....

...Accordingly, the order below is affirmed. Affirmed. . See Proposed Legislation and Position Paper and Talking Points on Landlords Prohibited Practices, (available at Fla. Dep’t of State, Div. of Archives, ser. 19, carton 1492, Tallahassee, Fla.) (stating that section 83.67 would furnish "an economic incentive to the landlord to ... file an eviction action, rather than circumventing the law and utilizing self-help"); Fla.S.Comm. on Landlord and Tenant Act, CS for SB 287 (1987) Staff Analysis (May 7, 1987)(on file with Comm.) (stating that “ § 83.67, F.S., is created prohibiting landlords from engaging in coercive self-help practices such as shutting off utilities in an effort to dispossess a breaching tenant”); Statement of Substantial Changes Contained in Committee Substitute for Senate Bill 287 (available at Fla....

...No appearance filed for appellee. GERBER, J. The alleged tenant appeals from the county court’s final judgment in the alleged landlord’s favor after a non-jury trial on the alleged tenant’s damages actions against the alleged landlord for violating section 83.67(1), Florida Statutes (2018). Section 83.67(1) permits tenants to recover damages against landlords for certain prohibited practices including, as the alleged tenant claimed here, termination or interruption of utilities....

...findings of fact indicate the alleged tenant proved a landlord-tenant relationship existed as a matter of law. Therefore, we reverse the county court’s final judgment, and remand for the county court to determine whether the tenant proved the alleged landlord violated section 83.67 and, if so, to determine the alleged tenant’s proven damages amounts.  The Alleged Tenant’s Verified Complaint The alleged tenant filed a verified complaint pertinently alleging as follows....

...alleged tenant’s refrigerated items to become unusable. On June 15, the alleged tenant discovered the house’s water was not working. Based on the foregoing, the alleged tenant’s verified complaint pled five damages actions against the alleged landlord for violating section 83.67(1), Florida Statutes (2018) (a residential landlord “shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water … electricity … or ref...

...enant’s water service. 2  For each of the five damages actions, the alleged tenant requested the county court to award “damages in the amount of three months’ rent ($600 x 3 = $1,800.00)” pursuant to section 83.67(6), Florida Statutes (2018) (“A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees.�...

...and thus the Residential Act applied to the parties’ situation. 6  Because the county court reversibly erred in this manner, we cannot discern whether the county court properly reached the issue of whether the alleged landlord violated section 83.67(1) (a residential landlord “shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water … electricity … or refrigeration, whether or no...

...intended that sentence to simply be a factual finding, or to be its legal conclusion that even if a landlord-tenant relationship existed, the alleged landlord did not intend his termination or interruption of the utilities to effect a self-help eviction and, therefore, did not violate section 83.67(1). Cf. Badaraco v. Suncoast Towers V Assocs., 676 So. 2d 502, 504 (Fla. 3d DCA 1996) (affirming the trial court’s dismissal of the tenant’s section 83.67 complaint where “the [utility] interruptions were not intended to effect self-help eviction”). Thus, we reverse the county court’s final judgment, but remand for the county court to: (1) treat our conclusions that the parties agreed to a landlord-tenant relationship, and that the Residential Act applied to the parties’ situation, as law of the case; (2) determine as a matter of law whether the alleged landlord’s termination or interruption of the utilities violated section 83.67(1), as interpreted in Badaraco; and (3) if so, determine the alleged tenant’s damages amounts....

...la. Stat. 15 and Tenant Act, 11 a landlord is prohibited from “prevent[ing] the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks.” Id. § 83.67(2); see also Nugent v....

...4th DCA 2021) (“A landlord improperly locking a tenant out of the premises is considered constructive eviction.” (quoting Hankins v. Smith, 103 Fla. 892, 138 So. 494, 495 (1931))). However, a landlord is authorized to remove locks to leased premises for the purpose of maintenance, repair, or replacement. § 83.67(5), Fla....

...secure the Premises. A reasonable jury could find that Holmquist did not change the locks and alarm code to prevent the Hefleys from gaining access, but rather for the purpose of replacing the locks they had changed and which he could not secure. 13 Id. § 83.67(5)....

...Landlord and Tenant shall each be responsible for loss, damage, or injury caused by its own negligence or willful conduct. Tenant should carry insurance covering Tenant’s personal property and Tenant’s liability insurance. 19. PROHIBITED ACTS BY LANDLORD. Landlord is prohibited from taking certain actions as described in Section 83.67, Florida Statutes, the provisions of which can be found in the attachment to this Lease....

...(If the rent is current and Tenant notifies Landlord of an intended absence, then Landlord may enter only with Tenant’s consent or for the protection or preservation of the Premises.) XIII.XIL PROHIBITED ACTS BY LANDLORD. Landlord is prohibited from taking certain actions as described in Section 83.67, Florida Statutes, the provisions of which can be found in the attachment to this Lease....