JOSEPH S. ARRIGO MOTOR CO., INC., D/B/A FERNANDINA FORD MERCURY AND ARRIGO DAIHATSU AND JOSEPH S. ARRIGO, AS PERSONAL GUARANTOR, APPELLANTS,
v.
FREDA LOUISE LASSERRE, CHARLES WILLIAM LASSERRE, ELMER EUGENE LASSERRE AND CURTIS HENRY LASSERRE, D/B/A LASSERRE PARTNERSHIP, A FLORIDA PARTNERSHIP, APPELLEES

Fla. 1st DCA | 1996-07-12
Nos. 94-1998, 94-3113
BOOTH, MINER and MICKLE, JJ., concur.
678 So. 2d 396 Florida District Court of Appeal, First District (1996) Caution
Cited by 2 cases

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Synopsis

A landlord sued a commercial lessee and personal guarantor for breach of a five-year commercial lease after the lessee assigned the lease to a third party who vacated. The court affirmed the finding of breach but reduced damages to reflect the landlord's duty to mitigate by reletting the premises, and reversed a discovery order issued without a hearing.


Holding

The court affirmed that Arrigo breached the lease but reversed and remanded to reduce damages to $30,600 (reflecting the rents obtained from reletting) and to recalculate prejudgment interest without compounding. The court also reversed the discovery order because it was issued prematurely without a hearing, denying Arrigo due process.


Headnotes

[1] A landlord has a duty to mitigate a tenant's damages by making a good faith effort to relet the property at a fair rental, and must credit the tenant for any rents obtain…

[2] Interest should not be allowed on a sum that is itself interest.

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Key Quotes

“landlord has duty to mitigate tenant's damages by making good faith effort to relet property at fair rental, and landlord must credit tenant for any rents obtained from another tenant during the lease term”

Establishes the mitigation principle that requires the trial court to credit the Lasserres for the $4,200/month rents they obtained by reletting the premises.

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Facts & Procedural History

Arrigo Motors leased commercial premises from the Lasserres for $3,000/month for five years beginning April 1, 1988. Arrigo personally guaranteed the …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This cause is before us on consolidated appeal from the final judgment, judgment awarding attorney fees and costs, and order compelling discovery, all for appellees (hereinafter “the Lasserres”).

We affirm in part, reverse in part, and remand with instructions. The Lasserres (as lessor) sued Ar-rigo Motors (as lessee) and Joseph Arrigo individually, alleging that the parties entered into a five-year/$3,000 per month lease commencing April 1, 1988, for which Arrigo personally guaranteed payment; that Arrigo Motors thereafter assigned the lease to a third party, who vacated the premises in July of 1991; and that Arrigo, as guarantor, was liable for 11 of the 20 months remaining in the lease (i.e., $33,000) for which the Las-serres were unable to relet the premises. At a bench trial, Elmer Lasserre testified on behalf of the Lasserres that he relet the premises at $4,200 per month for 7 of the 20 months in question, thereby bringing damages under the lease to $30,600.

The trial court found in its final judgment that Arrigo had breached the lease and ordered him, as personal guarantor, to pay $39,000 in damages under the lease and $11,550 in compounded prejudgment interest, for a total of $50,550.

On appeal, Arrigo challenges the trial court’s finding that Arrigo breached the lease, and urges various technical errors in the trial court’s final judgment.

We affirm the trial court’s finding that Arrigo breached the lease, but reverse and remand with instructions that the trial court reduce the Lasserres’ damages under the lease to $30,-600 (as testified to at trial), and recalculate the prejudgment interest accordingly, without compounding interest upon interest. See Hudson Pest Control, Inc. v. Westford Asset Management, Inc., 622 So. 2d 546 (Fla. 5th DCA 1993) (landlord has duty to mitigate tenant’s damages by making good faith effort to relet property at fair rental, and landlord must credit tenant for any rents obtained from another tenant during the lease term); United Services Automobile Ass’n v. Smith, 527 So. 2d 281 (Fla. 1st DCA 1988) (interest should not be allowed on a sum that is itself interest).

We affirm without comment Arri-go’s remaining technical challenges of the final judgment.

In accordance with the final judgment, the Lasserres filed a motion for attorney fees and costs (along with supporting affidavits), which the trial court granted in the amount of $3,100. We affirm. See generally Linn v. Linn, 464 So. 2d 614 (Fla. 4th DCA 1985) (it is within trial court's discretion to determine reasonable amount of attorney’s fees based upon its evaluation of all relevant factors, and such determination should not be overturned absent an abuse of discretion).

However, we must reverse the order of August 23, 1994, in which the trial court granted the Lasserres’ motion to compel discovery and ordered Arrigo to pay $250 in associated attorney fees and costs. The trial court prematurely rendered that order prior to the date set for hearing, thereby depriving Arrigo an opportunity to be heard on the motion. Fla.R.Civ.P. 1.100(b) & 1.380(a).

In summary, we AFFIRM in part, REVERSE in part, and REMAND the final judgment with instructions; we AFFIRM the judgment awarding attorney fees and costs; and we REVERSE and REMAND the order granting the Lasserres’ motion to compel discovery for a hearing thereon.

BOOTH, MINER and MICKLE, JJ., concur.


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Citator

Cited By

  • Bartow HMA, LLC v. Kirkland, 146 So. 3d 1213 (Fla. 2d DCA 2014)
    …fees for time spent litigating the production of the documents is specious. The single case cited by Bartow HMA in support of this argument is amply distinguishable and fails to affect the analysis. See Joseph S. Arrigo Motor Co., Inc. v. Lasserre, 678 So. 2d 396, 397 (Fla. 1st DCA 1996) (reversing trial court’s order granting motion to compel and ordering payment of fees where trial court “prematurely rendered th[e] order prior to the date set for hearing, thereby depriving [the Appellant] an opportunity to…

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